The Building Tradesman Newspaper

Friday, January 09, 2015

Labor hails new NLRB union election rule, which sets off partisan uproar

By The Building Tradesman

(By mark Gruenberg, PAI Staff Writer)

WASHINGTON (PAI) – AFL-CIO President Richard Trumka hailed a new National Labor Relations Board (NLRB) union elections rule, designed to cut down devices businesses use to thwart – legally or illegally – NLRB decisions.  The rule, several years in the making, also set off a partisan uproar, on and off the board, which passed it by a 3-2 party-line vote.

NLRB Chairman Mark Gaston Pearce said the new rule “will modernize the representation case process and fulfill the promise of the National Labor Relations Act.”  It will take effect on April 14.

Trumka called the changes “modest but important.”  They’ll “help reduce delay in the process and make it easier for workers to vote on forming a union in a timely manner.

“Too often, lengthy and unnecessary litigation over minor issues bogs down the election process and prevents workers from getting the vote they want,” added Trumka, who has a law degree.  “Strengthening protections for workers seeking to come together and bargain collectively is critical to workers winning much-deserved wage gains and improving their lives.”

Pearce said in announcing the rule on Dec. 12: “Simplifying and streamlining the process will result in improvements for all parties.   With these changes, the board strives to ensure its representation process remains a model of fairness and efficiency for all.”

The new rule lets unions and companies file documents electronically.  It tells both employers and unions when to file needed documents and sets deadlines for receipt of information both sides need to participate in election campaigns and appeals.  It also consolidates complaints about the election into one complaint to be filed after the vote.

And the NLRB’s rule orders employers to provide available personal phone numbers and e-mail addresses, as well as home addresses, to the eligible-voter lists they must give to the board, to be passed on to the union, after a verified representation election request.

Harvard labor law professor Benjamin Sachs pointed out another way the NLRB streamlined the election process: Letting the board’s regional director in the area where the vote will be held “decide which, if any, voter eligibility questions should be litigated before an election is held.”

“This marks a shift from prior practice under which voter eligibility questions had to be litigated prior to the election, even if they weren’t relevant to the question of whether an election should be held,” added Sachs, a former Service Employees assistant general counsel.

The board, Sachs said, “correctly determined” that “opening eligibility up” to lawsuits before the elections were held “often produced unnecessary litigation and delay.”

Both NLRB members and senators involved with labor issues got into a partisan battle over the new rule.  Republican senators said they would try to repeal it when they take over.

“The rule will help to address the unnecessary delays and frivolous legal challenges that keep workers from getting a fair, up-or-down vote in the current union election process,” said retiring Senate Labor Committee Chairman Tom Harkin, D-Iowa.  “Implementing this rule will support the board’s mission to ensure workers are able to participate in fair elections within a reasonable period of time.  This will benefit both workers and employers and should not be a partisan issue.

“By moving forward with the common-sense and balanced reforms in this rule, the NLRB will help to strengthen the union election process and ensure all workers are able to have a voice in the workplace, as is their right under the law,” Harkin said.

But Sen. Lamar Alexander, R-Tenn., who will chair the Labor Committee in the new 114th Congress, and incoming Senate Majority Leader Mitch McConnell, R-Kent., repeated tired GOP complaints about “an ambush election” rule.  Alexander plans to try to repeal it.

“The ‘ambush election’ rule will sacrifice every employer’s right to free speech and every worker’s right to privacy for the sake of boosting organized labor, and I believe a new (Republican) majority in the Senate will vote to disapprove this rule,” he said.

The board’s two Republicans, Philip Miscimarra and Harry Johnson, called the new rule “the Mount Everest of regulations.”  They said the majority wants “initial union representation elections (to) occur as soon as possible.”

Evoking Alice in Wonderland, they also claimed the board majority seeks “’Election now, hearing later.’”  Congress rejected that idea twice, they said, in 1947 and 1959.  They conveniently omitted that those rejections came during passage of the anti-union Taft-Hartley (1947) and Landrum-Griffin (1959) Acts, which emasculated the original National Labor Relations Act.

Pearce replied the new rule will not mandate specific time lines for elections.  He said the Republicans were wrong. Board members Kent Hirozawa and Nancy Schiffer also voted for the new rule.

“The most significant remaining differences among the board members stem from a difference in approach,” Pearce added.  “The approach of the majority…has been to address discrete problems with targeted solutions, while maintaining the essential elements of the existing process. These solutions advance the goals of efficiency, fair and accurate voting, transparency, uniformity, and adapting to new technology” besides “expeditious resolution of questions of representation.”