Employment Law Report

NLRB Chairman Outlines Intention to Push for More Election Changes

January 26, 2012 | Wyatt Employment Team

By Edwin S. Hopson

On January 26, 2012, Sam Hananel of the Associated Press reported that Mark Pearce, Chairman of the National Labor Relations Board, plans to push for the issuance of more rules making it easier for unions to organize employers under the National Labor Relations Act. The Board in December, 2011, had already issued final rules regarding election procedures to, in a limited way, eliminate some of the delays in the union representation election process, to take effect at the end of April 2012. Earlier in the year, before Chairman Wilma Liebman’s term expired, the Board had laid out a broader agenda to speed up representation elections.

Early this month, President Obama had made three recess appointments to the Board that have been controversial. Republicans and business groups are contending that the appointments were unconstitutional since the Senate was not in recess. If they are right, all actions taken by the Board since that date may be void.

Pearce stated “[o]ur goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayer” and “[m]y personal hope is that we take on all of these things and consider each one of these rules. We presume the constitutionality of the president’s appointments, and we go forward based on that understanding.”

The changes Pearce may be seeking in addition to those announced in December, 2011, are shown below in a chart used in June 2011, that also shows current procedure:

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 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 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 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.