Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Nearly 50 speakers have or are slated to testify during the National Labor Relations Board’s 2-day public meeting on the proposed expedited or “ambush” election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would make significant changes to pre- and post- representation election process. Among the speakers were Littler Shareholders Michael Lotito and Maury Baskin, who testified specifically about the proposal’s expedited timing of the pre-election hearing; the requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them; the types of matters that should be resolved at the pre-election hearing; and how the rules should address voter lists. A live stream of the public meeting – which is scheduled to run through 4:30 today – can be viewed here.
Speaking on behalf of the Associated Builders and Contractors (ABC), Maury Baskin on Thursday emphasized that the proposed rule represents “the most radical and sweeping proposed changes to the Board’s election case handling regulations in at least 50 years,” and called for the proposal’s withdrawal. With respect to the expedited timing of the pre-election hearing, which would occur within seven days following the filing of the election petition, Baskin asserted that this new standard is not only insufficient, but also “would be inconsistent with the federal definition of a ‘fair hearing’” used in other statutes, and conflicts with the Board’s own standard for unfair labor practice notice of hearings. Additionally, Baskin pointed out that the U.S. Department of Labor recently proposed to set their minimum notice of hearings to 14 days so that they would be consistent with other federal rules. “There is no reason for this Board to become a rogue agency that gives employers so little notice of pre-election hearings.” Baskin said that for most employers, particularly smaller ones that are not familiar with the NLRB and its processes, rules and procedures, seven days is simply “not enough time.”
As for the requirement that the employer’s written statement of position identify all unit issues before evidence is even heard at the pre-election hearing, Baskin said it was fundamentally unfair to lock employers into a position before they know what testimony will be offered. Employers simply cannot be sure what their position will be until they hear what evidence is presented, he testified.
Speaking on behalf of the International Franchise Association (IFA), Michael Lotito outlined the many problems inherent in the proposed rule’s requirement that questions of voter eligibility involving less than 20% of the bargaining unit be automatically deferred until after the election instead of addressed at the pre-election hearing, as is current policy.
Among other fundamental issues that must be resolved prior to the election is: who is the employer? Lotito explained that Former Acting General Counsel Lafe Solomon had issued a memorandum in 2012 suggesting that joint employment questions need to be answered before the election. The proposed rule, however, “is not clear on this point. Moreover, the Division of Advice is currently considering whether a joint employment relationship exists between a franchisor and a franchisee. . . the rule should make clear that issues about who is and who is not an employer must be litigated to conclusion before an election is scheduled.”
In a similar vein, Lotito said the final rule must make clear that determining the status of an individual as an employee eligible to vote in the election is an issue that needs to be firmly established prior to the election. Some employees, such as part-timers and those hired through a temporary agency, might ultimately be excluded from the unit. Similarly, employees with management duties could be considered statutory supervisors ineligible to vote. Under the new rule, Lotito said, these employees share a new community of interest – “legal limbo.”
”The ability to make an informed decision is the cornerstone of our election process,” Lotito testified. “How is the part-time employee supposed to find out if he wants to support a union if he doesn’t even know if the union will ultimately represent his interests?”
Other topics debated at the public meeting included whether electronic signatures should be permitted to satisfy the showing of interest; whether or how the rules should address “blocking charge” policy and the procedures used for placing a representation case in abeyance pending the outcome of unfair labor practice charges; whether non-parties should be served with Board filings; and whether or how post-election Board review procedures should be amended.
The extent to which the Board will take these public comments into consideration when crafting a final rule is uncertain. The formal comment period has closed, although comments responding to those already submitted are due on or before April 14, 2014. For employers, the wait for the final rule begins.