On January 26, 2012, Sam Hananel of the Associated
Press reported that Mark Pearce, Chairman of the National Labor Relations
Board, plans to push for the issuance of more rules making it easier for
unions to organize employers under the National Labor Relations Act. The
Board in December, 2011, had already issued final rules regarding election
procedures to, in a limited way, eliminate some of the delays in the union
representation election process, to take effect at the end of April 2012.
Earlier in the year, before Chairman Wilma Liebman's term expired, the Board
had laid out a broader agenda to speed up representation elections.
Early this month, President Obama had made three recess
appointments to the Board that have been controversial. Republicans and
business groups are contending that the appointments were unconstitutional
since the Senate was not in recess. If they are right, all actions taken by the
Board since that date may be void.
Pearce stated "[o]ur goal is to create a set of rules that
eliminate a lot of waste of time, energy and money for the taxpayer" and "[m]y
personal hope is that we take on all of these things and consider each one of
these rules. We presume the constitutionality of the president's appointments,
and we go forward based on that understanding."
The changes Pearce may be seeking in addition to those
announced in December, 2011, are shown below in a chart used in June 2011, that
also shows current procedure:
Parties or the Board cannot electronically file or
transmit important representation case documents, including election
Election petitions, election notices, and voter lists
could be transmitted electronically. NLRB regional offices could deliver
notices and documents electronically rather than by mail, and could directly
notify employees by email, when addresses are available.
The parties cannot predict when a pre- or post-election
hearing will be held because practices vary by Region.
The Regional Director would set a pre-election hearing
to begin seven days after a hearing notice is served (absent special
circumstances) and a post-election hearing 14 days after the tally of ballots
(or as soon thereafter as practicable.)
In contrast to federal court rules, the Board's current
procedures have no mechanism for quickly identifying what issues are in
dispute to avoid wasteful litigation and encourage agreements.
The parties would be required to state their positions
no later than the start of the hearing, before any other evidence is
accepted. The proposed amendments would ensure that hearings are
limited to resolving genuine disputes.
Encourages pre-election litigation over
voter-eligibility issues that need not be resolved in order to determine if
an election is necessary and that may not affect the outcome of the election
and thus ultimately may not need to be resolved.
The parties could choose not to raise such issues at
the pre-election hearing but rather via the challenge procedure during the
election. Litigation of eligibility issues raised by the parties involving
less than 20 per cent of the bargaining unit would be deferred until after
A list of voters is not provided until after an
election has been directed, making it difficult to identify and resolve
eligibility issues at the hearing and before the election.
The non-petitioning party would produce a preliminary
voter list, including names, work location, shift, and classification, by the
opening of the pre-election hearing.
The final voter list available to all parties contains
only names and home addresses, which does not permit all parties to utilize
modern technology to communicate with voters.
Phone numbers and email addresses (when available)
would be included on the final voter list.
Deadlines are based on outdated technology, for
example, allowing seven days after the direction of election for the employer
to prepare and file a paper list of eligible voters.
The final voter list would be produced in electronic
form when possible, and the deadline would be shortened to two work days.
Read about additional Labor and Employment
Law Developments by Edwin S. Hopson in
the Wyatt Employment Law
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