Tag Archives: Federal Register

Board Proposes Rules to Reform Pre- and Post-Election Representation Case Procedures

The National Labor Relations Board will publish in the Federal Register tomorrow a Notice of Proposed Rulemaking, which proposes amendments to its existing rules and regulations governing procedures in representation cases. The proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.

“One of the most important duties of the NLRB is conducting secret-ballot elections to determine whether employees want to be represented by a labor union,” said Chairman Wilma B. Liebman in a statement. “Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.” Click here to view her full statement. 

If finally adopted after a public notice-and-comment process, the proposed amendments would:

  •  Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

For details on the proposed amendments, view our fact sheet here and summary here.

As the Notice of Proposed Rulemaking states:

The Board believes that the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. The proposed amendments would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.  The proposed amendments would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.

Board Member Brian Hayes dissented from the proposed rulemaking.  In his opinion,

The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues.  Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress.  Disclaiming any statutory obligation to provide any preliminary notice and opportunity to comment, the majority deigns to permit a limited written comment period and a single hearing when the myriad issues raised by the proposed rules cry out for far greater public participation in the rulemaking process both before and after formal publication of the proposed rule.  The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections.

His dissent may be found here.

In the Notice of Proposed Rulemaking, the Board responded to the dissent.

Public comments are invited on all aspects of the proposed rules and should be submitted within 60 days of publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.  Reply comments to the initial comments may be filed during an additional 14 day period. In addition, members of the public will be invited to attend a public hearing, to be scheduled for July 18 and July 19, if necessary, to comment on the proposed amendments and make other suggestions for improving the Board’s representation case procedures.

Labor & Employment Law Alert – Proposed NLRB Rules Would Shorten Union Elections

On June 22, 2011, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing rules that, if adopted, would make it significantly easier for unions to organize new members. More specifically, the proposed rules are designed to expedite the representation election process by:

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  • Allowing election petitions, election notices and voter lists to be transmitted electronically, thus streamlining the election process for unions;
  • Requiring the Regional Director to set a pre-election hearing to begin seven days after a hearing notice is served, thus posing a burden on businesses who might not have immediate access to counsel;
  • Requiring parties to state their positions no later than the start of the hearing, and before any other evidence is accepted, or forfeit all legal right to pursue those issues;
  • Deferring litigation of voter eligibility issues until after the election, thus casting a cloud of uncertainty over the validity of the election process;
  • Requiring the non-petitioning party to produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing, thus making it easier for unions to campaign;
  • Requiring employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses, also making it easier for unions to campaign;
  • Eliminating the ability to request a pre-election review by the NLRB;
  • Consolidating all election-related appeals to the Board into a single post-election appeals process; and
  • Making NLRB review of post-election decisions discretionary rather than mandatory.

If adopted, the proposed rules are certain to have a profound impact on the election process. Quite often, the union’s election petition is the first time an employer becomes aware a union is seeking to organize its employees. Since elections typically run their course within 45-60 days, management has an already small window of time to interface with employees and make their case against unionization. Under the proposed rules, however, elections could occur in as little as 10 days. As a result, an employer’s ability to effectively mount an anti-union campaign is essentially short-circuited. Of course, there is no comparable burden on unions as they are free to campaign as long as they please prior to filing an election petition.

In the lone dissenting opinion, board member Brian Hayes expressed concern over the proposed rules by stating: “Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Additionally, the proposed rules would substantially limit the opportunity for full evidentiary hearing or NLRB review on contested issues involving, among other things, appropriate unit, voter eligibility and election misconduct. The NPRM provides a 60-day comment period for the rules, followed by a 14-day response period. In addition to issuing the NPRM, the NLRB has issued a “fact sheet” document outlining various aspects of the NPRM. The fact sheet is available at http://www.nlrb.gov/node/525.

The Employee Free Choice Act may have died in the Senate, but the NLRB, through decision and rulemaking, is continuing to bring the Act’s goals to fruition without the need for congressional action.

New ADA Regulations Become Effective May 24, 2011

The long-awaited final regulations implementing the ADA Amendments Act (ADAAA) were published in the Federal Register on Friday, March 25, 2011. The regulations become effective sixty days from the date, on May 24, 2011.

Background

The ADAAA was passed by Congress in 2008, became effective on January 1, 2009, and amended the Americans With Disabilities Act (ADA).  The purpose of the ADAAA was to make it easier for an individual to establish that he or she has a disability within the meaning of the ADA by requiring a broad and more lenient interpretation of disability under the law.  The Equal Employment Opportunity Commission (EEOC) issued proposed regulations under the ADAAA on September 23, 2009.

After reviewing more than 600 public comments to the proposed rules, the EEOC published the final regulations, along with an Appendix containing the EEOC’s interpretive guidance.  According to the EEOC, the Appendix “will continue to represent the Commission’s interpretation of the issues discussed in the regulations, and the Commission will be guided by it when resolving charges of discrimination under the ADA.”

Employer groups have generally found the final regulations to include improvements over the regulations as initially proposed.

Highlights of the final regulations

• References to “a qualified individual with a disability” have been deleted, consistent with the ADAAA.

• Under the “regarded as” prong of the definition of disability, an individual is no longer required to show that he/she is regarded by the employer as being substantially limited in a major life activity.  Rather, the individual must merely show that that he/she has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”

• The EEOC has made clear that where an individual is not seeking a reasonable accommodation, but only complaining about discrimination, then the case should normally proceed under the “regarded as” prong and it is generally unnecessary to invoke prongs one or two, i.e., the “actual disability” or “record of” disability prongs.  Under the ADAAA, an individual who proceeds under the “regarded as” prong is not entitled to a reasonable accommodation as a remedy.

• The EEOC has deleted the long-standing definition of major life activities as those basic activities that most people in the general population “can perform with little or no difficulty,” as being an irrelevant consideration.  As a result, the final regulation simply provides examples of activities that qualify as “major life activities” because of their relative importance.

• The final regulations do not define “substantially limits.”  Rather, the final regulations set out nine “rules of construction” to be used in determining whether an impairment is substantially limiting.

• The EEOC has made clear in the Appendix that the fact that an individual elects not to utilize mitigating measures is irrelevant to the determination of whether an impairment is substantially limiting.  However, the EEOC has clarified that the use or non-use of mitigating measures may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

• In the proposed regulations, the EEOC included a list of impairments that would “consistently meet the definition of disability.”  In the final regulations, the EEOC has clarified that the analysis of whether any of these impairments substantially limits a major life activity still requires an individualized assessment.  However, the individualized assessment will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity.

• The final regulations deleted the proposed regulations (a) listing impairments that may be substantially limiting for some individuals but not others; and (b) providing examples of impairments that “are usually not disabilities.”

• The final regulations reinstated use of the terms “condition, manner, or duration” as concepts that may be relevant to the determination of whether an impairment is substantially limiting.

• The final regulations move the discussion of how to analyze the major life activity of working to the Appendix and have retained the original formulation of “class or broad range of jobs” in analyzing whether an individual is substantially limited in this major life activity.  The proposed regulations sought to replace the concepts of “class” or “broad range” of jobs with the concept of “type of work.”  The EEOC concluded that this change would create confusion.

• The final regulations make clear that even if ADA coverage is established under the “regarded as” prong of disability, the individual must still establish the other elements of a claim of discrimination, e.g., the individual is qualified, he/she has been discriminated against because of the impairment, etc., and the employer may raise any available defenses, e.g., the impairment was transitory and minor.  However, the final regulations also point out that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating coverage under the “regarded as” prong.