Tuesday, June 21, 2011

NLRB Proposed Election Rules

NLRB The NLRB just announced today that it is published several proposed election rules.  They're potentially a big deal.  The NLRB announcement provides links to the full proposed rules and Chairwoman Leibman's statement (you can also see Steven Greenhouse's take on them in the New York Times here).  The proposals would, according to the Board:

  • Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

As I've argued before, some of these--like providing email address for the Excelsior list--are no-brainers and shouldn't be controversial (that's "should be" not "won't be").  Others are likely to create more of a fuss, especially given the Boeing case.  The attempt to streamline the election process--pushing challenges to the post-election period is particularly significant--could significantly reduce the critical period after an election petition is filed and the election is held.  This, of course, is the time where employers can aggressively fight the union campaign, often with success.  What's interesting is that the rules could move the Board closer to the "quick election" proposals that came out of the EFCA debate and are used in some provinces in Canada. 

Stay tuned . . . .

Hat tip:  Dennis Walsh

-JH

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Comments

One wonders whether they will be applicable to decertification and deauthorization elections, or if this is another effort by the Obama Board to stack the deck in favor of unions ONLY?

Posted by: James Young | Jun 21, 2011 6:39:15 PM

As a teacher of administrative law, I'll be interested to see what line of attack under State Farm - agencies permitted to change rules as long as providing an "adequate explanation" - circuits will take to attempt to disqualify the rules (as they obviously will). The D.C. Circuit, in particular, may have to engage in some entertaining contortions. Still, good to see someone is doing something to push back against the current rightward push.

Posted by: Michael Duff | Jun 22, 2011 6:26:52 AM

Has anyone seen a clarification of the e-mail addresses item. Do they specify if it pertains to personal email addresses in the company's possession, or must the company provide company emails? If so, that seems like it would conflict with Register Guard. I'm just trying to pinpoint this issue.

Posted by: Matt | Jun 27, 2011 6:37:58 AM

I'd been wondering the same thing, Matt. Obviously, the current Board is ready to ditch Register Guard as soon as they get a chance, but I think you're right that this rule already cuts the legs out from under the decision, assuming that it involves company email (it's hard to believe it doesn't, as the employer may not have private email addresses) and that the list is intended to actually be used.

Posted by: Jeff Hirsch | Jun 27, 2011 7:21:56 AM

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