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LABORED RELATIONS: 2012 could be an uneventful year for the NLRB

Timothy Kamin

Several months after first proposing sweeping changes to streamline the union representation election process in June – the so-called “quickie election” rules – the National Labor Relations Board has approved a more modest, scaled back set of reforms. On Nov. 30, a two-member majority of the three current board members approved six changes to the election process, designed to speed up the process from petition through the election.

The resolution regarding the rules changes may be reviewed in detail on the NLRB’s website, but the changes may be summarized in brief as follows:

1. Pre-election hearings will be held only when an issue is raised regarding whether an election should be held and will no longer be used to determine issues of individual voter eligibility, which will be deferred until after the election.

2. Closing arguments rather than post-hearing briefs will be the standard except in unusual cases, eliminating the delay following a pre-election hearing for the submission and consideration of post-hearing briefs.

3. Pre-election and post-election appeals and objections now must be raised in a single, post-election appeal, eliminating the delay associated with certain pre-election appeals.

4. The current 25-day waiting period between the regional director’s decision on a pre-election hearing and the holding of the election has been eliminated. The purpose of the waiting period was to allow for pre-election appeals, which now have been deferred until after the election, as noted in item 3 above.

5. Special permission to appeal to the NLRB on a pre-election basis will be granted only in “extraordinary circumstances” in which the issue would “evade review” if deferred until after the election.

6. The NLRB’s review of post-election appeals is now discretionary rather than mandatory, meaning the NLRB may summarily reject appeals that, in the NLRB’s view, “do not present a serious issue for review.”

These more limited revisions abandoned other provisions initially proposed in June by the NLRB, which included reducing the time for the employer to produce the voter eligibility list from seven days to two days following the direction of an election, requiring a “preliminary voter list” to be provided prior to any pre-election hearing, requiring parties to disclose issues to be raised prior to any pre-election hearings, and requiring the employer to provide the union with employee email addresses and phone numbers in addition to the currently required home mailing address. The NLRB’s current resolution expressly notes that it may revisit those other issues in future rule-making efforts.

These changes are the culmination of a contentious, politically-charged process.

Initially, Democrats had sought to streamline the election process through the legislative process over the past several years via the Employee Free Choice Act. When passage of EFCA failed, the NLRB initiated a rule-making process in an effort to effectuate changes similar to those denied in the legislative process. Since the proposal of such rules in June, business interests and Republicans in the legislature have railed against the “quickie election” provisions as limiting informed choice by employees and unfairly inhibiting employer-employee communications, and had vowed to seek legislation to reverse any changes implement by the NLRB.

In the final process for adopting the more limited changes in November, the lone Republican member, Brian Hayes, alleged the two Democrat members, Chairman Mark Pearce and member Craig Becker, excluded him from participation in the process and Hayes even threatened to resign his position to leave the NLRB without the necessary three-member quorum to act.

Ultimately, Hayes stayed on as the dissenter in the 2-1 vote on the changes.

At the end of the month, Becker’s recess appointment will expire, leaving the NLRB without a quorum. It appears very unlikely that the Senate will approve anyone appointed by the president, or take recess to open the door for the president to make another recess appointment. As a result, 2012 could be an uneventful year for the NLRB.

Timothy Kamin is an attorney with Krukowski & Costello SC, representing management exclusively in labor and employment law matters, including unfair labor practice and representation proceedings before the National Labor Relations Board, in collective bargaining negotiations and grievance arbitration, assisting employers in responding to union organizing campaign, and employment discrimination matters.

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