NLRB Watch

(This is the second installment of "NLRB Watch," a new blog series on the National Right to Work Foundation’s website. In NLRB Watch Foundation staff attorney, Ave Maria law professor and former National Labor Relations Board (NLRB) Member John Raudabaugh, discusses the actions of the Obama Labor Board.)

On Tuesday, April 24, 2012 the U.S. Senate voted down (54-45) a resolution disapproving of the National Labor Relations Board’s December 22, 2011 Final Rule revamping representation case election procedures. The day before, President Obama issued a statement noting that if the resolution were approved by both the Senate and the House of Representatives, he would veto the measure. Although the Final Rule is under legal challenge pending before the U.S. District Court for the District of Columbia, absent a last minute stay, the Final Rule takes effect next Monday, April 30, 2012.

The Final Rule achieves much of what Organized Labor wanted and failed to get with their so-called Employee Free Choice Act – quickie elections to effectively silence employers and keep employees uninformed. The Final Rule will reduce the time between the filing of an election petition and the holding of the secret ballot election. Over the past years, the median time or “critical period” between the petition filing and the election has been 38-42 days. It is likely that the Final Rule will result in reducing the time between filing and election to as few as 8-10 days.

Union organizers begin their campaigns long before filing an election petition with the NLRB. Many employers and employees are unaware until notified by the NLRB that the campaign or “critical period” has begun with the union’s filing of an election petition. Under the new Final Rule, employers may have just days to provide employees with information on the downsides of unionization, and employees who wish to remain independent will have limited time to lobby their co-workers to oppose unionization.

The result? Employees will not be fully informed about unionization, making it easier for union officials to expand their forced unionism ranks.

The Final Rule makes eight specific changes to representation case procedures:

(1) The purpose of the pre-election representation case hearing is redefined and limited to whether there is a question of representation and whether the unit is appropriate. Issues and evidence of unit placement (whether a particular individual is a covered employee or exempt supervisor) and other issues previously presented at such hearings will now be deferred until after the election and only considered if the NLRB determines such issues to be determinative. Unfortunately, in some cases, this will leave employers uncertain about who will be in or out of the unit if the union prevails and whether to rely on certain persons believed to be supervisors to assist management in responding to union campaign messaging and advocating on behalf of the employer.

(2) Hearing Officers presiding over pre-election hearings will be empowered to restrict the presentation of evidence supporting a party’s contentions regarding the question concerning representation – whether the petitioning union has made a demand for recognition which the employer has refused.

(3) Hearing Officers will have discretion regarding party requests to file post-hearing briefs, subjects to be addressed if briefs are allowed, and the time for filing briefs.

(4) Pre-election requests for review of a Regional Director’s Decision and Direction of Election following a pre-election hearing, if any, will now be deferred until after the election.

(5) The longstanding recommendation to delay scheduling an election until 25-30 days following the Regional Director’s Decision and Direction of Election is eliminated.

(6) Grounds for special permission to appeal to the NLRB are narrowed and deferred until after an election.

(7) NLRB review of election objections and outcome-determinative challenges in elections are now discretionary.

(8) NLRB Rules and Regulations Section 101, Subpart C are eliminated.

Employees facing a quickie election may wish to contact the National Right to Work Legal Defense Foundation for free legal aid.

Last NLRB Watch: "Notice Posting Rule Delayed Again Pending Court Review"

Next NLRB Watch: "NLRB’s "Ambush" Election Rule Invalidated… At Least for Now"