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NLRB Proposed Rulemaking “ Streamlining ” or “ Quickie Elections ” ?

NLRB Proposed Rulemaking “ Streamlining ” or “ Quickie Elections ” ?.

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NLRB Proposed Rulemaking “ Streamlining ” or “ Quickie Elections ” ?

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  1. NLRB Proposed Rulemaking“Streamlining” or “Quickie Elections”?

  2. “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 Board’s current representation casehandling procedures.” Dissenting View of NLRB Member Brian E. Hayes

  3. Petition Filed with NLRB Regional Office Consent Procedures Formal Procedures Formal Hearing (RD or Board) Agreement for Consent Stipulation Regional Director Decision Board Decision (reviewor 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

  4. Petition Filed with NLRB Regional Office Consent Procedures Formal Procedures Agreement for Consent Stipulation Preliminary Hearing (RD only, <20% 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 Election Certified or Re-Run

  5. 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

  6. Electronic Filing Consolidate all review issues into one, post-election request for review 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)

  7. Pre-Election Notice required (electronic posting required where possible) Review all individual voter eligibility issues post-election 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)

  8. Provide phone numbers, email addresses Provided electronically, within 2-days of direction of election “Excelsior” list changes Sanctions for misuse? 2 days enough time?

  9. Statement of Position due in 5 business days Defer unit issues to post-election = huge uncertainty Unit Determination Changes Challenged ballot system isn’t “secret” Leads to extensive post-election litigation, fails to solve supposed problems

  10. What’s 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?

  11. 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

  12. 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

  13. 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)

  14. Hiring/Onboarding Situation Assessment Vulnerability Assessment Positive ER, Engagement • 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 Left of BOOM BOOM Counter-Campaign Strategy Alert Legal, Consulting, Jump Team Tripwire Team

  15. Resources http://lrionline.com/olms-advice-rule http://lrionline.com/nlrb-streamlined-elections

  16. “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.” Dissenting View of NLRB Member Brian E. Hayes

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