NLRB New Rules: Quicker Elections, More Hearings, Longer Cert Delays

New Orleanunionapproved_rubberstamps The NLRB has announced a new rule-making procedure on representation elections.  Labor will try to paint lipstick on this pig, and business and their political friends will claim this is the end of the world as they know it, but in truth unions know this is not what they had wanted or hoped for and will make a difference only at the margins, not at the core, and business is probably relieved to see how minor the changes really are.

Here’s the deal on a NLRB rule-making procedure.  There are sixty days to get comments in, fourteen days for responses, and a hearing that will be held on July 18th on the matter.  The Board (the actual NLRB commissioners) will then weigh all of the testimony, make some minor changes and perhaps report and print a final rule by the end of 2011 by my guess.  The Chamber and some business groups will sue (count on this!) both challenging the right of the NLRB to make such administrative rule changes and raising some technical issues.  Lower and appeal courts will uphold the NLRB’s authority here, but the real hope will be to get the matter to the Supreme Court and hope that the current hard right dogmatic ideology of the court gives them a “Hail Mary” here.  This is not a quick process.  Those with long memories might remember the rule making process on the number of units that would be appropriate in hospital elections.  It followed a similar timetable over several years to implementation.  The other wrinkle on this will be the likelihood of legislation being introduced in Congress to nullify any of these changes.  Loss of both Houses of Congress will guarantee passage and only a Presidential veto and tight enough margins to prevent an override will allow even these minor rule changes to endure depending on how much hullabaloo is raised on this mess.

The meat of the matter leaves less on the plate than starving unions need.  The holy grail had been 10-day elections from the date the representation petition is filed until the date of the election.  That would have been a game changer.  This is not, and in fact much of it is more a shrinking by days than weeks on the election calendar.

  • Technically, more email and email filings will be allowed.  This is more convenient certainly, but faxes are already pretty standard so the calendar won’t really shorten by much here.
  • Email receipt of the election voting list which is known as the Excelsior list after the Excelsior Underwear decision many decades ago guaranteeing receipt of the list within seven (7) days.  In truth the NLRB has done a better job getting the list quickly anyway, often the same day or next day after a stipulation is agreed, so the practice may be ahead of the rule.  The rule proposes to include phone numbers, which will make a difference, particularly if those are cell numbers, though the rule doesn’t specify.
  • Pre-election hearings on unit issues would be after the election on issues involving less than 20% of the unit. Right now, union organizers swallow huge volumes of garbage about workers in and out of the unit in order to get a stipulated election and avoid a hearing.  This part of the rule virtually guarantees that almost all elections that are won by unions will have post-election hearings! The new strategy will be to spit out garbage on less than 20% of the unit and swallow the difference to speed the election.  Besides guaranteeing more hearings and happy lawyers on both the labor and management sides of the bar, this is actually likely to significantly slow final certifications and therefore the bargaining process to collective agreements.  Hearings take time to schedule and be heard, there are always common and customary delays for briefs, and there is no timetable for NLRB decisions on briefs, and then there will be almost guaranteed pro forma appeals from the region to the board in DC on any adverse part of the decision (unless the swallowing happens now!), all of which will delay the first meeting of the parties to try to move to an agreement.  This is a “pay me now” or “pay me later” problem.  For unions to survive winning will require a different organizing model, but that’s a subject for another day.
  • The new rule would require the company to articulate a written statement of position on the outstanding issues.  This is a good thing, though case officer’s handbook currently is clear that a hearing is not warranted and should not be scheduled if there are not clear issues, which forces the agents to buck up to the companies on this issue, which many do not for fear of appeals to DC.  The new rule would make hearing such appeals discretionary which is also good, though for companies who want to drag their feet, this will only accelerate the timetable for them to seek court review.  Listen for the crying of stuck pig judges about their dockets being filled with NLRB cases in the future!  My own feeling is that this is only going to shorter most elections by a day or two though in large, bitterly contested units like hospitals and auto plants this will make a huge difference that might be measured in weeks and months.

Right now many regions on normal elections try to achieve a 21-day election by pushing both parties to stipulate and get their business done.  The rule making does not mandate any date change but the hard date on 7 days to a hearing, but once a hearing is required the clock is just going to run on anyway.  My bet is that these rule changes, if and when adopted, and if along these lines, might move a 21-day election standard in the first year or two after the rule making down to a 15-17 day practical standard with case agents pushing for 14 days, all of which would be good, but given the real problems on organizing through the NLRB, I’m not sure will fundamentally change the organizing climate.

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