Wyatt Employment Law Report


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NLRB Chairman Outlines Intention to Push for More Election Changes

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.


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House Committee Holds Hearing on Proposed Legislation to Roll Back/Block NLRB Actions

On October 12, 2011, the U.S. House Education and the Workforce Committee held a hearing on the proposed “Workforce Democracy and Fairness Act” (H.R.3094) recently introduced by Republicans.  The purpose of the legislation is to the proposed legislation is to roll back some recent decisions of the National Labor Relations Board and block its proposed rule that would speed up the representation election process.  Specifically, H.R. 3094 would:

●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Witnesses testifying were: attorney Charles Cohen, a Republican and former Member of the National Labor Relations Board, Robert Sullivan, President of R.G. Sullivan Consulting, on behalf of the Retail Industry Leaders Association, attorneys Michael J. Hunter, who represents unions, and Phillip B. Russell, who represents employers. 

The proposed legislation may pass the House, but most certainly cannot pass in the Senate at this point in time.


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Legislation Proposed to Curb/Roll Back Recent NLRB Actions

By Edwin S. Hopson

On October 5, 2011,Congressman John Kline(R-MN), the Chairman of the U.S. House Committee on Education and the Workforce, announced that he had introduced H.R. 3094 entitled, the “Workforce Democracy and Fairness Act.”  The proposed legislation is meant to curb/roll back some recent decisions and actions of the National Labor Relations Board including its proposal to speed up the representation election process.  According to a press release issued October 5, 2011, the proposed legislation would:

 ●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

 ●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

 ●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

 ●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Original cosponsors of H.R. 3094 include: Representatives Howard “Buck” McKeon (R-CA), Joe Wilson (R-SC), Virginia Foxx (R-NC), Duncan Hunter (R-CA), Phil Roe (R-TN), Glenn Thompson (R-PA), Tim Walberg (R-MI), Scott DesJarlais (R-TN), Todd Rokita (R-IN), Larry Bucshon (R-IN), Trey Gowdy (R-SC), Martha Roby (R-AL), Dennis Ross (R-FL), and Mike Kelly (R-PA).

A hearing by the committee on the measure will take place on October 12, 2011.


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President Obama Orders Regulatory Agencies to Allow More Public Input Into Regulations

By Edwin S. Hopson

On July 11, 2011,President Obama issued an Executive Order directed at regulatory agencies requiring them, consistent with existing law, to do what his Executive Order 13563 did regarding executive branch agencies.  That is each agency, such as the National Labor Relations Board and the Equal Employment Opportunity Commission, is directed to:

”Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”

It also instructs agencies as follows:

“Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).”

The new Order also states “Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well.”

The effect of this new Executive Order on the NLRB’s proposed regulations that would speed up the representation election process is not known.  However, Senator MikeEnzi(R-Wyo.), the Rrnking member on the Senate Health, Education, Labor and Pensions Committee called on the NLRB to follow the new Executive Order and criticized the Board for not permitting more public participation prior to issuance of its proposed regulations. See http://help.senate.gov/newsroom/press/release/?id=c08f491c-6363-4529-8cf2-a1df744a2a7a&groups=Ranking