The National Labor Relations Board (NLRB) on June 21 released proposed changes in the way union representation elections are conducted that the NLRB says will “reduce unnecessary barriers to the fair and expeditious resolution of questions concerning representation.”
The new rules are hardly as sweeping as those in the Employee Free Choice Act, which is organized labor’s top legislative priority. The EFCA would also speed up union organizing drives to circumvent employer pressure on employees, and would have allowed workers to vote for union representation with the simple signing of a card rather than a formal election.
AFL-CIO President Richard Trumka says the proposed NLRB changes are a “modest step to remove roadblocks and reduce unnecessary and costly litigation – and that’s good news for employers as well as employees.”
The Wall Street Journal made the NLRB’s action its lead story on June 22. The paper said the new rules would create “the most sweeping changes to the federal rules governing union organizing since 1947, giving a boost to unions that have long called for the agency to give employers less time to fight representation votes.”
According to the AFL-CIO, the proposed changes 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.
Trumka said: “The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process.” He said the rules “appear to be a common sense approach to clean up an outdated system and help ensure that working women and men can make their own choice about whether to form a union.”
Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, said the (NLRB’s) “modernized election rules take an important step forward in making this right a reality. By giving workers the right to a fair, up-or-down vote, the rules don’t encourage unionization or discourage it —workers get to make the decision that is best for them. But preserving this right brings some balance to the system, so that the deck isn’t always stacked against ordinary working people and in favor of the wealthy and the powerful.”
The U.S. Chamber of Commerce, predictably, attacked the proposed changes.
The NLRB’s announcement, said the chamber’s Senior Vice President of Labor, Immigration, and Employee Benefits Randy Johnson, “is another not so cleverly disguised effort to restrict the ability of employers to express their views during an election campaign, to inform employees of the pros and cons of unionization. These rights have been guaranteed to employers under 8(c) of the National Labor Relations Act since 1947 and were specifically added to the law in recognition that union abuses arising under the 1935 Wagner Act needed to be countered. The unions vehemently fought that provision then and they are trying to effectively eliminate it now.”
Union leaders counter that those same delays in union organizing campaigns are of greater benefit to employers, who are given time to hold “captive audience” meetings with employees to coerce them not to unionize.
The five-member NLRB is now comprised of a majority of Democrats since the Obama Administration is office, so the votes are there to pass the rules after public hearings. The Chamber of Commerce accuses the Obama Administration of using “the regulatory process to tilt the playing field in organized labor’s favor during union campaigns” – and certainly these proposed rules would never have sprung to life with a Republican majority on the NLRB.