Done Deal: Quikie Elections Adopted By NLRB. Rule To Be Published In Federal Register Tomorrow.
The National Labor Relations Board (NLRB) on Wednesday unveiled a rule that is expected to shorten the time frame for union elections. The board runs the elections.
The rule, which labor unions favor, would limit pre-election legal challenges and give more authority to NLRB hearing officials to speed up the process.
Lawyers for the largest business lobbying group, the U.S. Chamber of Commerce, filed a lawsuit in Washington to try to block the rule, which is scheduled to take effect on April 30. They say election periods could become so short that they could “ambush” employers and violate their free-speech rights.
The rule echoes a high-profile dispute from Obama’s first year in office in 2009 over how to run unionization elections.
Back then, labor unions hoped a Democratic-led Congress would give them the option of using “card check” elections, in which workers decide whether to unionize by signing a petition. The idea failed, leaving unions with the secret ballots that employers say reduce possible intimidation.
Unions have since turned their attention to what the NLRB can do under existing law.
AFL-CIO President Richard Trumka called the new NLRB rule a “modest but important” step. “Many more improvements are needed to protect workers’ rights,” he said.
U.S. union membership has declined. In 2010, 11.9 percent of wage and salary workers were union members, according to the Bureau of Labor Statistics. That was down from 20.1 percent in 1983, the first year for which comparable data is available.
The NLRB strategy has limits for unions. One of their allies, Craig Becker, a former lawyer for the AFL-CIO and SEIU unions, will be forced to leave the board this month because he never received confirmation from the U.S. Senate.
After Becker leaves, the NLRB will not have the quorum it needs to function unless the Senate confirms Obama’s pending nominees, or Obama appoints them during a Senate recess.
Separately, congressional Republicans have proposed restricting the NLRB’s authority with legislation that would set election timelines and affect which employees could vote in a union election.
The courts will be another battleground. Randy Johnson, a senior vice president at the U.S. Chamber of Commerce, said the new rule “has no conceivable purpose but to make it easier for unions to win elections,” thereby restricting the rights of employers.
The National Labor Relations Board has adopted a final rule amending its election case procedures to reduce unnecessary litigation and delays. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.
The rule is primarily focused on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.
Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.
Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.
In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.
Chairman Mark Gaston Pearce and Member Craig Becker voted in favor of the rule, which was preparedfollowing a public meeting in late November. Member Brian Hayes dissented from the Notice of Proposed Rulemaking and voted at the November 30 public meeting against proceeding with publication of a final rule. The final rule provides the opportunity for publication of a separate dissenting statement prior to the effective date of the rule.
In recent years, only about 10 percent of NLRB election cases have gone through the hearing process. Such elections have been held on average 101 days after the election petition was filed with a regional office.
“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said Chairman Pearce.
The amendments to the election case procedures in the new rule were drawn from a more comprehensive proposal put forward by the Board in June. More than 65,000 comments were submitted following publication of the broader proposal in the Federal Register. In a discussion introducing the new rule, the Board majority explained that it was holding for further deliberation parts of that proposal that had generated the most debate while moving ahead with parts considered relatively “less controversial.”