Quickie Without A Kiss: The NLRB Assault On The NLRA.
The real target of the National Labor Relations Board (NLRB) is not big business, Boeing, expedited union elections, or increased disclosure of attorneys and consultants by companies during campaigns. The real target is the National Labor Relations Act, itself.
Big labor spent $400B+ dollars, a heap of political capital and manpower on the Obama campaign in 2008, and they are sorely disappointed in the return on investment; or lack thereof. When recently interviewed Richard Trumka, head of the AF-CIO had this to say:
“It will be more challenging this time than it was last time to motivate our members,” Why will it be more “challenging”? “Well, because Mr. Obama hasn’t come through on all the pro-union, anti-free trade stuff he promised.” The “pro-union” stuff is the un-passed and un-passable Employee Free Choice Act.
Further, Obama’s support for free-trade agreements with South Korea, Colombia and Panama has disappointed his union supporters, Trumka said.
“During the campaign, he made significant promises to do an inventory of the trade agreements” to be certain they protected worker rights, Trumka said. “He’s obviously forgotten that promise.”
Realizing that these measures would not pass, the NLRB seems to have been enlisted as the instrument of choice for the “legislative” implementation of a Free Choice equivalent via “quickie elections.” This process would effectively reduce the cycle time of filing a petition to having an election from 45-60 days to 5-10 days by a union seeking to represent a body of employees.
Here’s the problem for the NLRB. The NLRB was established to enforce the National Labor Relations Act. Within the NLRA stipulations are set forth for defining the group of employees that both the employer and union agree will be eligible to vote called, Questions Concerning Representation (QCR) and the Representation Laws and Procedures. For example supervisors, managerial employees, contractors may or may not be included depending on the respective positions of the union and the employer. A dispute could arise wherein the union would claim that “Team Leaders” are just glorified hourly employees, and should be given the right to vote, while the employer would dispute that position.
So, we have a hearing to define the bargaining unit, and the parties submit their briefs within seven days. Then, a decision and direction of election is issued by a Regional Director of the NLRB with an election being scheduled between twenty-five and thirty days later. Further, either party can appeal the decision within fourteen days of notification of the decision. Now, while it will not delay a vote, the NLRA allows for additional submission of briefs essentially generating another fourteen day window.
Whether the NLRB can change procedures to achieve “quickie elections” can only be answered by reviewing the wording of the NLRA. In addition to requiring a QCR, the Act also specifically states the NLRB must “provide for an appropriate hearing upon due notice” if it has reasonable cause to believe that a QCR exists. But nothing in the statute defines what “appropriate hearing” means. Nor does the statute mandate that the Board employ the pre‐election hearing process now in use. The statute is silent on pre‐election hearing processes and those issues that may be “appropriate” for pre‐election determination.
What I suspect we’ll see is the “vote first litigate later” process which has been bantered about recently, and in fact previously suggested in the early 1990s, by William B. Gould IV, the Clinton Board’s first NLRB chairman. With the Employee Free Choice Act dead, Wilma Liebman’s term ending next August, and Craig Becker’s appointment expiring at the end of 2011, the window of opportunity is closing which will cause the NLRB to take bold action. Big labor could get a much-needed victory getting workers to the polls quickly; but, only when they can show that what they have done lately is significant. The NLRB is headed in this direction for layers of reasons, and unless a court intervenes, five to ten-day NLRB elections could be a thing of the future.