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From SCDigest's On-Target E-Magazine

July 19, 2011

Supply Chain News: Hearings on Controversial Proposed Changes by NLRB to Unionization Rules Began Monday with Strong Opinions on All Sides


Changes Would Speed Time from Union Campaign to Vote to as Little as 10 Days, giving Employers too Little Time to React, Business Interest Say


SCDigest Editorial Staff

Public hearings on changes proposes by the National Labor Relations Board began on Monday, with both business interests against the changes that many believe would enhance the odds for union campaign success and pro-labor forces in favor of the changes fervently arguing their points.

SCDigest Says:

Maurice Baskin, who testified on behalf of Associated Builders and Contractors, said there is a �sense of outrage� in the business community over the proposed changes.
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The new NRLB rules were announced in June, and many believe they would be the most consequential changes in labor law since just after World War II. For example, the proposed changes would dramatically reduce the amount of time from when a union first files to hold a unionization vote and when that election would be conducted, perhaps to as little as 10 days from a median of 38 days currently.

Many believe that by reducing that time to vote, companies will be at a disadvantage versus today's rules because they will have a much shorter period to conduct anti-union campaigns and crank up the employee communications machine, which are often effective in bringing doubt to workers who might initially be supportive of the unionization effort.

Labor advocates say that time is often used to mislead and intimidate workers.

Other proposed changes would force companies to identify any challenges to the union campaign very early in the process or else have to wait to make the challenges after the vote has been taken (and presumably lost), and to force companies to give more information about workers, such as email addresses, to union organizers to enhance their ability to communicate with those workers.

The full set of proposed changes is listed below.

All four members of the NLRB were appointed by the union-friendly Obama administration, though one is a Republican. Current Chairman Wilma Liebman, in opening remarks at Monday's session, seemed to indicate the board was open to modifying the proposals in the end.


Proposed NLRB Changes to Current Unionization Campaign Rules


Current procedures

Proposed procedures

Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.

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 receive little compliance assistance.

Along with a copy of the petition, parties would receive a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties to identify the issues they may want to raise at the pre-election hearing. The Regional Director may permit parties to complete the form at the hearing with the assistance of the hearing officer.

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 [business] 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 the election.

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 parties may request Board review of the Regional Director’s pre-election rulings before the election, and they waive their right to seek review if they do not do so.

The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request.

Elections routinely are delayed 25-30 days to allow parties to seek Board review of Regional Director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election.

The pre-election request for review would be eliminated, along with the unnecessary delay.

The Board itself is required to decide most post-election disputes.

The Board would have discretion to deny review of post-election rulings -- the same discretion now exercised concerning pre-election rulings -- permitting career Regional Directors to make prompt and final decision in most cases.

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.

Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion.

Representation case procedures are consolidated into a single part of the regulations.


"We know that the proposals have generated some controversy ... I assure you, we all have open minds," Liebman said.

(Manufacturing article continued below)




From the employer side, Eric Schweitzer, a lawyer testifying on behalf of the Council on Labor Law Equality, called the proposed changes to litigation rules a "denial of due process" to employers in a statement Monday. The Council represents employers in various labor-related litigation.

John Raudabaugh, a labor lawyer at Nixon Peabody who testified Tuesday for the National Federation of Independent Businesses, said the impact of the changes could be very hard on small and medium sized firms which "don't have the funds, time or knowledge of relevant labor laws to respond to covert organizing or the speedy elections" being proposed.

Maurice Baskin, who testified on behalf of Associated Builders and Contractors, said there is a “sense of outrage” in the business community over the proposed changes.

“In the midst of this terrible economy, the NLRB is proposing new and burdensome regulations that appear to have no purpose other than to promote union organizing,” Baskin said, adding seven days is not nearly enough time for employers to research their legal options, consult with a lawyer and discuss possible union membership with their employees.

On the other hand, "The current rules are completely tilted in favor of the employers," said Mary Kay Henry, the president of the Service Employees International Union, said in an interview after the hearing Monday. "We think this rule change is a step in the right direction that will address the ways in which employers delay."

Elizabeth Bunn, who testified on behalf of the AFL-CIO, added that “Under the status quo, the employer is able to hang a sword of delay over the union. The goal is not to inform. The goal is to delay, harass, confuse and intimidate.”

All told, more than 60 people are expected to testify over the two days of hearings that started Monday. Written comments will be accepted through August 21. A final decision is likely several months away at best.

It is interesting to note that the NLRB conducted 1,633 union-representation elections in the year ended Sept. 30, 2009, the most recent period posted on the agency’s website. Of cases closed in the period, employees chose to form a union 64% of the time.

What is your opinion of the proposed changes to NLRB rules? How big an impact do you think it will really be on business if enacted? Let us know your thoughts at the Feedback button below.

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