European Imports, Inc.,

Docket Number13-RC-192428

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

European Imports, Inc. and Teamsters Local 703,

Petitioner. Case 13–RC–192428

February 23, 2017

ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS

PEARCE AND MCFERRAN

The Employer’s “Emergency Request for Review” seeking to reschedule the election scheduled for February 23, 2017, is denied.1 Following the election, the Employer remains free to file an objection challenging the Regional Director’s decision.

Dated, Washington, D.C. February 23, 2017

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

ACTING CHAIRMAN MISCIMARRA, dissenting.

This case gives rise to the concerns expressed in my dissenting views regarding the Board’s Election Rule.1 Specifically, this case illustrates the downside associated with the Rule’s “preoccupation with speed between petition-filing and the election.”2 The Election Rule adopts a single-minded standard regarding what date should be selected when Regional Directors schedule an election: every election must be scheduled for “the earliest date practicable. . . .”3

Here, the election date set by the Regional Director— pursuant to the Election Rule’s mandate—only gave three days’ notice to a substantial number of employees that they would be voters in a union-representation elec

1 We have treated the Employer’s “Emergency Request for Review” as a request for extraordinary relief asking expedited consideration of its request for review under Sec. 102.67(j)(1)(i) of the Board’s Rules and Regulations.

1 79 Fed. Reg. 74308 at 74430–74460 (December 15, 2014) (dissenting views of Members Miscimarra and Johnson).

2 Id. at 74436.

3 Election Rule Sec. 102.67(b), 79 Fed. Reg. at 74485 (“The regional director shall schedule the election for the earliest date practicable consistent with these rules.”).

tion. For the reasons that former Member Johnson and I stated in the Election Rule’s dissenting views, I believe the time frame adopted in this case unduly prejudices the parties and extinguishes the employees’ right to have a reasonable period of time to become familiar with election issues.4 This abbreviated time frame, as to a substantial portion of the bargaining unit, also curtailed the right of all parties to engage in protected speech. Accordingly, I respectfully dissent from the majority’s denial of the Employer’s emergency request for review and to have the election postponed from February 23, 2017, to March 1, 2017.

The representation petition in this case was filed on Friday afternoon, February 3, 2017.5 The petition described the bargaining unit as including “[a]ll full time and regular part time Forklift Drivers, Order Selectors, and Dock Workers employed by the employer at its facility located at 600 East Brook Drive, Arlington Heights, IL 6005 [sic].” The petitioned-for unit excluded “[a]ll maintenance employees, janitorial employees, supervisors, managers, office clerical and guards as defined by the Act.”

Consistent with the timetable prescribed in the Election Rule, the Region on February 3 sent a notice requiring the Employer to post an election notice by Tuesday, February 7. The notice required the Employer to prepare and submit a written statement of position by noon on Friday, February 10; and to appear at a hearing on Monday, February 13. The Employer’s statement of position raised an objection that the Board’s Election Rule deprived the Employer of due process and caused unfair “prejudice to the Employer.” The statement of position also identified 52 employees that the parties had agreed

4 As explained in the dissenting views that former Member Johnson and I expressed in the Election Rule, the legislative history of the National Labor Relations Act reflects substantial concern about ensuring that employees be afforded a reasonable period prior to any election to become familiar with election issues and to permit parties to engage in protected speech. When evaluating Landrum-Griffin Act amendments to the NLRA, then-Senator John F. Kennedy—who chaired the Conference Committee—repeatedly stated that at least 30 days were required before an election to “safeguard against rushing employees into an election where they are unfamiliar with the issues.” 105 Cong. Rec. 5361 (1959), reprinted in 2 LMRDA Hist. 1024. Again, Senator Kennedy...

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