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A two-day meeting on a proposal by the National Labor Relations Board to shorten the period between the filing of a petition for a representation election and the election itself drew scores of employer representatives, who vigorously objected to the proposed change, saying it would give unions an unfair organizing advantage.
NLRB Chairman Wilma B. Liebman July 18 opened the public meeting by saying board members realize the proposed rule changes have generated “some controversy” and are approaching the proposal with “open minds” and a desire to hear the views of the public, both in the meeting and in written comments that may be filed by Aug. 22.
Arnold E. Perl of Glankler Brown in Memphis, Tenn., representing the Tennessee Chamber of Commerce & Industry, was the first speaker to address Liebman and NLRB Members Craig Becker, Mark Gaston Pearce, and Brian E. Hayes. Perl said there has been no showing of unreasonable election delays under the current rules and argued that a “litmus test” for effective rules would be whether they ensure that employees are “an informed electorate” when they decide questions of union representation.
But law professor Anne Marie Lofaso from West Virginia University (WVU) in Morgantown, W.Va., called the proposed rule amendments a “commendable” effort to modernize NLRB procedures. She argued that the rule changes would allow employers ample time to present their views in a full debate before employees cast ballots for or against a union.
Former board member Marshall B. Babson, now a management attorney with Seyfarth Shaw in Washington, D.C., urged the board to be mindful of “the two-headed nature” of the National Labor Relations Act and the need to balance a policy of favoring expeditious resolution of representation issues with the interests of parties in free speech and informed choice.
The board scheduled the public meeting on its notice of proposed rulemaking, published June 22 in the Federal Register, in which Liebman, Becker, and Pearce proposed changes they said would streamline litigation and limit the availability of board review in representation cases, allowing the board to conduct representation elections in a shorter time after the filing of a petition for a secret ballot election. Member Hayes, the only Republican on the board, dissented.
Perl was one of several speakers at the meeting who cited the interest of employees in casting an informed vote on union representation as a factor to be considered in determining how much time is needed for unions and employers to campaign before a secret ballot election.
The board's proposed procedures for expediting representation case proceedings “would prevent or impede a free and reasoned choice by the electorate, which goes against what the board has sought to do with its high standards” for elections, Perl argued.
Peter N. Kirsanow, a former board member now in private practice who appeared on behalf of the National Association of Manufacturers, told the panel that the proposed regulations, which would require NLRB regional directors to issue notices of representation case hearings after the filing of election petitions and to “set the hearing for a date 7 days from the date of the service of the notice absent special circumstances,” do not provide employers, especially smaller ones, with enough time to respond to a union's petition.
Calling the current NLRB rules “union-friendly,” Kirsanow said board statistics showing that elections recently have been completed in a median time of 38 days after the filing of petitions, with more than 90 percent of elections held within 56 days. This does “not strike me as particularly long,” he added.
Liebman asked the former board member how much time he believed employers need to respond to a representation petition, and Kirsanow said his experience has been that most employers feel “extraordinarily rushed” under current regulations with a median of 38 days.
Ronald Meisburg, a member of the board from January to December 2004, appeared on behalf of the U.S. Chamber of Commerce, and asked the board to remember that employers have “a legitimate and substantial interest” in NLRB rules and procedures.
Meisburg, the agency's general counsel from January 2006 to June 2010, acknowledged that the rights of employers “may not eclipse” those of others. But he added that unions actually have an advantage in organizing campaigns under current board rules, and have achieved considerable success, reflected in their winning more than 60 percent of elections held.
Meisburg observed that NLRB statistics also reflect that under current practice the vast majority of elections held are based on elections stipulated or agreed to by the parties involved. Given such success, Meisburg cautioned, the board should not “throw out” a system that has performed well.
But the proposed rules found strong support from a number of speakers. WVU's Lofaso, a former NLRB attorney who worked on appellate court litigation for the agency, said the rules establish reasonable requirements for employers to produce relevant information in representation case proceedings.
The proposals aim for earlier elections, Lofaso said, but they do not favor either party in a representation case proceeding.
Answering arguments that employers need more time than the rules would permit for a debate before employees vote on unionization, Lofaso said the rules deal only with the period between the filing of a petition and the conduct of an election. Employers often have an opportunity to begin a campaign against unionization before a petition is filed, she said.
“If some employers are truly concerned with having a full debate” on unionization, Lofaso said, “I suggest they give unions access to their property and debate the pros and cons of unionization.”
Ross Eisenbrey of the Economic Policy Institute in Washington, D.C., told the board that the existing practice in representation cases has been “tilted” in favor of employers, while employees seeking to organize themselves have been “bombarded by fear-mongering.”
Eisenbrey said the proposal would improve access of unions to employees and access of employees to information. “Anything that does away with unnecessary delay is a good thing,” he added, saying that such an improvement may prevent employees from being subjected to employer harassment.
Meanwhile, on the second day of the public meeting, several attorneys representing business groups challenged the board's authority to adopt the rule changes and the motive of the board majority that approved the notice of proposed rulemaking.
Union advocates continued to endorse the proposal, however, and board members questioned whether some criticism has been based on misunderstandings of the rulemaking proposal.
Management attorney G. Roger King of Jones Day, representing the Society for Human Resource Management, told the board that “the institutional credibility and neutrality of the agency is at issue here.” He argued that the proposed rule revision imposes unreasonable pre-election requirements for employers. But Becker said some criticism of the proposal has failed to note that the proposal would continue to require an NLRB finding of an appropriate unit before an election occurs.
Harold R. Weinrich of Jackson Lewis, representing the Atlantic Legal Foundation, said the timing of the regulatory proposal suggests that it was an effort to implement through rulemaking features of the Employee Free Choice Act that failed to win congressional approval. But Liebman reviewed the elements of the failed legislation and said, “I don't see any of those in these proposed rules.”
AFL-CIO Organizing Director Elizabeth Bunn told the board that under current rules, “employers are able to exercise too much control over the timing of the election.”
Christopher N. Grant, a union lawyer from Schuchat, Cook & Werner in St. Louis, said the proposed rules would allow adequate time for determining appropriate units for representation elections, a process he said “is not rocket science.”
Liebman closed the public meeting, stating that the proceeding had been a “most interesting” opportunity for the board to hear a variety of opinions on the proposed rule changes.
Under the NLRB rulemaking proposal, written comments on the proposed rule amendments may be filed by Aug. 22, with a period for replies to those comments being open until Sept. 6.
Electronic comments may filed at http://www.regulations.gov, where more than 13,000 comments already have been submitted. Comments also may be sent by mail or hand-delivered to Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th St. N.W., Washington, D.C. 20570. Comments should be identified by RIN 3142-AA08.
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