NLRB Proposed Rulemaking

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NLRB Proposed RulemakingStreamlining or
Quickie Elections?
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Parts of what my colleagues propose seem
reasonable enough. On the other hand, the whole
of proposed reform is much, much more than the
sum of its parts and out of all proportion to
specific problems with the Boards current
representation casehandling procedures. Dissenti
ng View of NLRB Member Brian E. Hayes
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Petition Filed with NLRB Regional Office
Formal Procedures
Consent Procedures
Formal Hearing (RD or Board)
Agreement for Consent
Stipulation
Regional Director Decision
Board Decision (review or direct)
Excelsior List - Campaign
Election Conducted By Regional Director
Results Conclusive
Results Inconclusive
Consent Election
Stipulated Election
Directed Election
RD Decides
Board Decides
RD or Board Decides, Board Reviews
Election Certified
Election Certified or Re-Run
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Petition Filed with NLRB Regional Office
Formal Procedures
Consent Procedures
Agreement for Consent
Stipulation
Preliminary Hearing (RD only, lt20 of unit)
Excelsior List - Campaign
Election Conducted By Regional Director
Results Conclusive
Results Inconclusive
Consent Election
Stipulated Election
Directed Election
RD Decides
RD Decides, Board Reviews
RD Decides, Board Reviews
Election Certified or Re-Run
Election Certified
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June 22, 2011 Notice of Proposed
Rulemaking Comments Due August 22, 2011 Public
Hearing on July 18-19. 2011

• Proposed Rulemaking
• Not a final rule
• 60 days to comment
• In effect after comment period
• Comment by web (regulations.gov), hand-delivery
  or by mail
• Reference Docket ID NLRB-2011-0002 RIN 3142-AA08

Proposed Rulemaking
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Consolidate all review issues into one,
post-election request for review
Electronic Filing
Eliminate 25-30 day waiting period to allow
review of Regional Director decisions
Statement of Position Form (all future litigation
limited to statement of position)
Key Changes
Board can deny review of post-election rulings
Pre-Election 7 Days Post-Election 14 Days
Hearing suspended to post-election if issues
effect less than 20 of unit
Provide voter phone numbers, email, shift
departments within 2 days of direction of
election (and immediately to Board)
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Review all individual voter eligibility issues
post-election
Pre-Election Notice required (electronic posting
required where possible)
Election can be held within 10 days of
transmission of eligibility list (or earlier if
union agrees)
Final Notice to employees electronically
transmitted
Other Changes
Use of electronic signatures to support a showing
of interest
Request for comment on blocking charges (offer of
proof, pre-election investigation, impound)
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Provide phone numbers, email addresses
Provided electronically, within 2-days of
direction of election
Excelsior list changes
Sanctions for misuse?
2 days enough time?
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Statement of Position due in 5 business days
Defer unit issues to post-election huge
uncertainty
Unit Determination Changes
Challenged ballot system isnt secret
Leads to extensive post-election litigation,
fails to solve supposed problems
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Whats the problem? Elections happen within
targets, unions win big
Why no stakeholder meetings to determine need for
changes?
Things that make you go hmmm.
E-signatures E-voting?
Why not apply pre-hearing statement of position
in ULP cases?
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Encourages knee-jerk bad behavior
Disenfranchises voters on both sides
Law of Unintended Consequences
Shifts employer focus to proactive ER
Furthers perception of NLRB as political tool of
unions
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• Action Item 1 Comment
• Go to regulations.gov and comment (link on our
  site)
• Key topics for comment
• No need for the rule Board meets current
  targets, unions win, withdrawals are consistent
  and explainable
• Disenfranchises voters by increasing use of
  challenged ballot process
• Encourages post-election litigation and knee-jerk
  employer behavior
• Infringes on privacy of employees
• Limits legitimate and protected employer speech

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• Action Item 2 Congress
• Newly elected Congress Republican majority
• House has appropriations power
• Can de-fund regulatory activities (i.e.
  ergonomics)
• NLRB already under pressure due to Boeing case
• Key people to contact
• Your congressperson
• Members of the House Appropriations and Education
  and the Workforce Subcommittees (Kline is Chair)
• Also Boehner, Issa, King (House) and DeMint
  (Senate)

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• Action Item 3 Proactive ER
• Just the beginning (short elections, micro-units,
  temps, supervisors, witnesses...)
• Key leverage point direct relationship
• Left of boom ER practices

Right of BOOM
BOOM
Left of BOOM
Counter-Campaign
Strategy
Alert Legal, Consulting, Jump Team
Tripwire Team
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Resources
http//lrionline.com/olms-advice-rule http//lrio
nline.com/nlrb-streamlined-elections
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Sadly, my colleagues reduce that cornerstone of
transparency, participation and collaboration to
rubble by proceeding with a rulemaking process
that is opaque, exclusionary, and adversarial.
The sense of fait accompli is inescapable. Disse
nting View of NLRB Member Brian E. Hayes