As we reported earlier, the NLRB announced it was ready to vote on some proposed amendments to the rules concerning representation elections. There was no indication in the original announcement of about the substance of the changes.

On November 29, 2011, NLRB Chairman Mark Pierce disclosed more information in the form of a Board Resolution. This proposed resolution will be formally introduced on November 30, at a public meeting of the NLRB where its approval will be subject to vote by Chairman Pierce, Member Becker and Member Hayes. There seems to be little doubt that the Chairman and Member Becker will vote to approve the resolution, while Member Hayes will very likely register a vote against it if he participates in the meeting.

The regulations were initially proposed on June 22, 2011 and have been the subject of vigorous debate ever since. More than 60 witnesses testified at a hearing before the Board on July 18-19, and over 65,000 written comments were filed later in the Summer. The process has resulted in an unheard of public fight between the Chairman of the NLRB and Member Hayes, each of whom alleges the other is engaging in improper conduct. The basic premise of reality television, where all is laid bare to be seen and analyzed by the public, has finally reached into a government agency.

The resolution that will be offered tomorrow can fairly be categorized as “not good, but not as bad as it could have been.” While the NLRB has not dropped any of its plans to overhaul the entire representation election system, it is important to note, for example, that the NLRB will not be voting to adopt the actual “quickie” election timeframe of as little as ten days which was forecast under the original rules. Still, although not as sweeping as the NLRB initially proposed, the resolution to be voted on this week represents significant and fundamental changes to the way representation petitions are likely to be processed in 2012. The resolution proposes the following changes:

  • Allow the Hearing Officer (a Regional Office employee) to limit a pre-election hearing to those matters relevant to the question of whether an election should be held.
  • Authorize the Hearing Officer to decide whether or not to permit post-hearing briefs, depending on whether the case presents issues that would benefit from briefing.
  • Eliminate pre-election appeals to the NLRB and instead consolidate it with a single, post-election review proceeding.
  • End the practice of not scheduling an election for approximately 25 days after a decision and direction (which is the current practice to allow time for a pre-election request for review, now eliminated).
  • Limit the grounds upon which special permission to appeal to the Board may be granted to “extraordinary circumstances”.
  • Make the post-election appeal to the Board discretionary, instead of as a matter of right.

Any resolution approved on November 30 would still require the NLRB to draft and formally approve by separate vote the final regulations.

What we can tell from this new information, however, is that in the interests of “streamlining” an allegedly outdated, burdensome process, the NLRB’s proposed amendments will as a practical matter:

  • Give Hearing Officers and Regional Directors much more discretion to decide the scope of a representation hearing. This will automatically shift additional burden to employers to preview their case, including what proof they have, in order to persuade the Region to even hold a hearing. However, if the Hearing Officer or Regional Director is not convinced, then the issue may never be decided by the NLRB. Take, for example, a typical case. The union petitions for a unit of 50 employees. The employer asserts that the actual unit should be 55 employees (50 petitioned for and 5 additional), because of the interaction and community of interest of all the employees. If the Hearing Officer decides that the employer did not raise a significant enough issue to have a hearing, then the only way the employer would be able to have the issue decided is to ask the 5 additional employees to vote in the election. Those employees’ ballots will then be challenged. If the five votes are determinative, meaning they could affect the outcome of the election, then a hearing would be held to discuss the eligibility. But…if the ballots are not determinative, then no hearing will be held and the employer’s issue will not receive due consideration from the NLRB.
  • Most important, the proposed changes must be read in connection with the NLRB’s recent decision in Specialty Healthcare about which we reported here. In that case, the NLRB imposed a new, but ill-defined standard for challenging the appropriateness of a petitioned-for bargaining unit. If the union petitions for “an” appropriate unit, i.e., one whose members share a community of interest, then that unit will be accepted by the NLRB unless the employer demonstrates the larger unit possesses an “overwhelming community of interest.” This new, higher standard combined with the front-end discretion to hold a hearing means fewer hearings will occur, and employers pressured to schedule an election at the earliest possible date.
  • Giving the Regional Director and Hearing Officer more discretion to determine if an issue is worthy of a hearing also will likely mean the Regional Directors will decline to hold hearings unless they can be persuaded by a strong, detailed offer of proof that the petitioned-for unit is inappropriate. In other words, the employer must spend time persuading the Region to even hold a hearing when it could be using the time to prepare its case, One can imagine that a) this will not be uniformly applied throughout the various Regions and b) that it now makes it incumbent on the employer to prove its case simply to justify having a hearing.
  • If a hearing is held, the Regional Director’s ability to dispense with post-hearing briefs will automatically shorten the timeframe for making a decision. Currently, briefs are due one week after the hearing closes, and sometimes longer if there is an understanding due to parties’ schedules (and yes, plenty of union counsel have asked for extensions to file briefs). Elimination of post-hearing briefs is another easy way for the NLRB to reduce the election timeframe.
  • If the proposed changes are made, an election would be held in a much shorter timeframe if the employer does not otherwise agree on the unit issues. Under the current process, if the parties do not agree on the bargaining unit and the Regional Director issues a decision on the unit issue, the election then must be scheduled between 25 to 30 days from the date of decision. The resolution proposes eliminating the 25 day period (ostensibly because the NLRB is eliminating the pre-election appeal period); presumably, the election could be scheduled as soon as practical by the Regional Director, which might mean ten days after decision.

The tragedy in all of this is, of course, that the NLRB has embarked on a course of fixing a problem that doesn’t exist. One problem with fixing something that is not broken is that it has unintended consequences. Moreover, the “fixes” proposed by these rules also appear to have one very clear intended consequence: tilting the playing field in favor of unions and sharply limiting debate on one of the most important issues facing employees and their employers.

We will keep you posted on these important developments as they occur.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.