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April 11 --The National Labor Relations Board April 11 concluded a two-day public meeting on proposed regulations for processing union election petitions and representation cases, as board members questioned claims by several speakers that accelerating secret ballot elections would impair employees' ability to educate themselves about unionization and compromise employers' ability to express themselves on the subject.
NLRB's rulemaking proposal contains a provision that an NLRB regional director should select an election date “as soon as practicable.” Several board members asked whether in fashioning a rule about the scheduling of secret ballot elections, the NLRB can or should consider the time employers claim they need to express their views to workers.
Brian Petruska, general counsel of the Laborers International Union of North America's Mid-Atlantic Regional Organizing Coalition, argued that management concerns about reducing the time before an NLRB election have been “overblown,” and warned that allowing unreasonable delays can undermine the board's reputation for neutrality.
On the other hand, Kara M. Maciel of Epstein, Becker & Green in Washington contended that the NLRB should not “fundamentally transform” existing procedures that have in most cases delivered expeditious elections. Maciel argued “common sense dictates” that employees are better able to make informed decisions about union representation when they have more time to consider the question.
Petruska argued that elections can be held quickly, and should be very quick in “straightforward” cases, but drew questions early in the meeting from the board's Republican members, Philip A. Miscimarra and Harry I. Johnson, who dissented from the NLRB's Feb. 6 notice of proposed rulemaking (RIN 3142-AA08, 79 Fed. Reg. 7,318), which offers the same changes in representation case procedures that were in a 2011 proposal.
The 2011 proposal was adopted in part, but a federal district court later held the representation case rule changes did not have a required final approval of three board members. NLRB gave up an appeal of that ruling and withdrew the 2011 proposal, but then issued its Feb. 6 notice with the approval of NLRB Chairman Mark Gaston Pearce (D) and Members Nancy J. Schiffer (D) and Kent Y. Hirozawa (D).
Miscimarra said that assuming the phrase “as soon as practicable” in the proposed rule means that an election could be set after the “mere mechanical” prerequisites to voting have been met, he questioned whether the board should not also consider how much of a pre-election period would be helpful to employees. “Aren't we the agency to consider that,” Miscimarra asked.
Johnson cited Chamber of Commerce v. Brown, 554 U.S. 60, 184 LRRM 2385 (2008) (119 DLR AA-4, 6/20/08) and posed the question if employees have an interest in receiving information through a robust debate about unionization, whether the NLRB should be considering that in evaluating reasonable election dates.
Edgardo Villanueva, a management consultant at EMSI Consulting in Chicago, asked the board to consider that many voters in NLRB elections are now immigrants who may be familiar only with the labor laws of their native countries, not U.S. law. Villanueva asked the board to “give them enough time” to be educated before voting in an NLRB-supervised election.
But Pearce asked the consultant how much time is needed when he assists an employer in a campaign against unionization. The NLRB chairman pointed out that, unlike union representatives, Villanueva can obtain ready access to employees at any time before an election.
Villanueva said that even under current election standards, most employers only have time for three or four meetings with employees, but Pearce pointed out that it is the consultant's employer clients, not the NLRB, determining how much time to devote to pre-election campaigning.
Glenn Rothner, who represents unions and employees at Rothner, Segall & Greenstone in Pasadena, Calif., told the board that he began his career as an attorney for the United Farm Workers in California, and he urged the NLRB to consider his state's experience under its Agricultural Labor Relations Act.
Under the California statute, Rothner said, elections are conducted within seven days of the filing of a petition. Balloting is expedited to allow voting by workers during peak employment seasons when they are on the job. Pre-election hearings are not conducted, but issues about the scope and composition of voting units arise, and they are resolved after balloting, the lawyer said.
“At bottom,” Rothner said, “I just don't understand the complaint that there may not be enough time to campaign” under the NLRB's proposed rule amendments.
The NLRB heard from two former board members, both representing national business groups and both voicing objections to the rulemaking effort to accelerate elections by changing representation case procedures.
Peter N. Kirsanow, a partner in Benesch, Friedlander, Coplan & Aronoff in Cleveland who served as a recess appointee on the board from January 2006 to January 2007, represented the National Association of Manufacturers at the NLRB meeting.
Kirsanow stressed that Section 8(c) of the National Labor Relations Act guarantees the right of employers to speak on the subject of organizing and unionization, but he argued that reducing the time available for campaigning would impair the ability of employers to express their views to employees.
The NLRB has recently been conducting initial elections in union representation cases in a median time of 38 days from the filing of a petition to the conduct of balloting. Kirsanow urged the board not to attempt to further compress the interval between election petitions and voting.
Ronald Meisburg, a partner at Proskauer Rose in Washington, appeared for the U.S. Chamber of Commerce. Meisburg, who was a recess-appointed board member for 11 months in 2004, also served as the agency's general counsel from January 2006 until June 2010.
Meisburg noted the 38-day median statistic, and said that even in cases that require pre-election cases, the board achieves reasonable voting dates. Major delays occur in fewer than 10 percent of cases, he said, and it is that group of cases “where the board should focus its attention.”
Comments concerning the rulemaking proposal were due April 7, and replies are due April 14. All of the comments and replies will be available at http://www.regulations.gov.
The NLRB will make a recorded video of the public meeting available online in the near future.
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