Tag: representation

NLRB General Counsel

General Counsel Reports on the NLRB

On March 14, 2018, NLRB General Counsel Peter Robb issued a memorandum in response to questions and concerns raised at the Midwinter Meeting of the American Bar Association’s Practice and Procedure Under the National Labor Relations Act Committee of the Labor and Employment Law Section. This is an annual tradition for the General Counsel of the National Labor Relations Board.

As the newly confirmed General Counsel, this is Robb’s first time issuing such a report. For those who don’t have the time to read all 27 pages, here are some highlights.

Reorganization of Field Operations

In his first months as General Counsel, Robb has raised many eyebrows and ruffled a fair number of feathers. This has primarily occurred through his designs on reorganizing how the NLRB’s field offices operate.

On this subject, the GC’s memorandum offers:

The General Counsel is currently soliciting input from Agency HQ and Field staff for the purpose of formulating recommended changes to existing case processing procedures. At an appropriate future point, the General Counsel, again in deliberation with Agency staff, will examine and may propose, as appropriate, recommended changes to the structure of the Field offices. No decisions have been made at this time.

The report further indicates that the changes are under consideration for budgetary purposes, adding:

The results of such changes may be to generate benefits in several potential areas, including perhaps: improvement in the efficiency, timeliness, quality of services and organizational decision making, elimination of unnecessary levels of management and administrative support, maximization of employee performance, reduction in travel and other case processing expenses.

The General Counsel also suggests that any changes to the structure of the field offices “will be open for public comment prior to implementation.” He identifies a target effective date of October 1, 2018.

Unfair Labor Practices

In the memorandum the General Counsel reports case-handling statistics for Fiscal Year 2017.

The NLRB received 19,280 charges last year. It settled 95% of them. The agency issued 1,263 formal complaints based on charges. Overall, the NLRB found merit in only 38.6% of the charges filed.

The report includes much more data on topics including:

  • Motions for Summary Judgment
  • Deferrals
  • Subpoenas
  • Section 10(j) Injunctions
  • Submissions to the Division of Advice
  • Charges on Particular Subjects

Representation Cases

Union representation petitions resulted in 1,205 elections in FY 2017. Unions won 71% of these elections. Across these elections 80.5% of the 81,646 eligible employees voted. Overall, 46.7% of the eligible employees voted “yes” and 33.7% voted “no.”

The NLRB also conducted 173 decertification elections. Unions won 32% of these elections, yielding a 68% decertification rate.

The GC’s memorandum also includes a chart of days to election from FY08 to FY17. From 2008 to 2014, there was a median each year of 37 or 38 days from filing of an election petition to the date of the election. In 2015 the number dropped to 33. Over the past two years it has been much lower at 23 days.

The average size of bargaining units has ranged from 24 to 28 between FY07 and FY17. The 2017 average of 24 employees matches that of 2007, 2009, and 2017.

More to Come from the General Counsel and the NLRB

This will not be the last we hear about the NLRB this year. There is still one vacancy on the 5-member Board. Management-side labor attorney John Ring awaits Senate confirmation. When he, or someone else, joins the Board, the new member will join Chairman Marvin Kaplan and Member Bill Emanuel giving the NLRB a Republican majority. They are likely to get back to work changing Obama-era precedents favorable to labor.

One issue still on the table is the fate of the Obama Board’s so-called “quickie” election rules. Late last year a temporary Republican majority issued a request for information suggesting an interest in changing the representation procedures. The Board has now twice extended the time to respond to the RFI. The current deadline is April 18, 2018.

Labor attorneys representing both sides will also be interested to see whether and how the General Counsel proposes to reorganize the NLRB’s field offices. This could significantly affect how the agency operates.

New NLRB Election Rules

NLRB Considering New Election Rules

On December 13, 2017, the National Labor Relations Board (NLRB) published a request for information in the Federal Register seeking public comments on the agency’s existing union representation election rules. The NLRB last changed these rules in December 2014 to establish what many refer to as “quickie elections”. At that time, the NLRB had a Democrat majority during the administration of President Obama.

Now with a 3-2 Republican majority for the first time since 2007, the NLRB’s request for information foreshadows changes that would likely lengthen the time between filing of a representation petition and an election. Other procedural elements could also change.

Persistent Political Divide

Both Democrats on the Board objected to issuing the request for information.

Member Mark Pearce, who was the NLRB Chairman when it adopted the current rules, pejoratively referred to the request for information as a “Notice and Quest for Alternative Facts.”

Member Lauren McFerran added, “The RFI is premature, poorly crafted, and unlikely to solicit meaningful feedback.”

The Republican majority responded that: “It is surprising that the Board lacks unanimity about merely posing three questions about the 2014 Election Rule, when none of the questions suggests a single change in the Board’s representation-election procedures.”

What the Board Is Reviewing

The NLRB’s request for information indicates that the Board’s specific focus is on the December 2014 amendments to the union election rules. It states that the Board is evaluating whether the rules should be:

  • Retained without change?
  • Retained with modifications? or
  • Rescinded, possibly while making changes to the prior election rules that were in place before?

Information Sought

The Board’s request specifically invites information relating to these questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modification? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?

Timeline

NLRB Chairman Philip Miscimarra’s term expires on December 16, 2017. Miscimarra was one of two dissenting Board members when the NLRB adopted the current election rules. He has announced that he will not seek or accept another term.

President Trump has not formally nominated anyone to fill the vacancy. Nor has the White House indicated who will become Chair upon Miscimarra’s departure. However, attorney Peter Ring is believed to be Trump’s pick to join the Board, subject to background checks.

By issuing this request for information just before Miscimarra’s departure, the Republican Board Members were able to start this process before losing the deciding vote.

Interested parties have until February 12, 2018, to respond to the request for information. By or soon after that time, the Senate may have confirmed Miscimarra’s replacement. That would then restore a Republican majority, likely paving the way for changes to the election rules.

Early Predictions on New Election Rules

It’s highly unlikely that the Board would have issued this request for information, over two vehement dissents, if it did not intend to make changes to the rules.

There are no obvious roadblocks to the Senate confirming a new Republican Member to fill Chairman Miscimarra’s seat in early 2018. Whether that is Peter Ring or someone else, they will likely reach accord with incumbent Republican Members Marvin Kaplan and William Emanuel on this issue.

Expect Democrats Pearce and McFarren to strenuously object to any changes. They have already articulated their grounds for doing in their 14 pages of dissent to the request for information itself.

Once the NLRB returns to full strength with a 3-2 Republican majority, it must still issue a proposed rule and allow further public comment. Nonetheless, it would not be surprising if new election rules are in effect before the end of 2018.

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