Once more, with feeling: The National Labor Relations Board has resurrected its effort to implement new rules making it easier for employees to form unions.
The proposed rules are pretty much identical to ones proposed back in 2011, before a federal court quashed them for procedural problems. Key to the new proposal: The “quickie election” rule, which would allow voting on union representation in as few as 10 days after a petition to organize has been filed. Under the old rules, the NLRB’s guideline for holding elections was 42 days.
The bottom line is, employers would have a lot less time to try and persuade employees that joining a union might not be in the workers’ best interest. Organized labor has argued for years that employers have dragged their feet on holding elections, using the time to wage anti-union campaigns through meetings and distributing pro-company literature.
In a press release, the NLRB said the new rules would “moderniz(e) processes, enhanc(e) transparency and eliminat(e) unnecessary litigation and delay.”
‘If they only hear one side … ‘
Currently, unions win an overwhelming majority of representation elections, almost all of which take place within 60 days of the union’s petition for an election, with the average election taking place in fewer than 40 days after the filing of the petition. For example, unions won 65.2 percent of the 643 private sector elections held in the first six months of 2013, compared with 62.6 percent of 709 elections held in the same period in 2012. So why this new demand for a “rush to judgment”?
The reason is that unions seek to have the NLRB impose organized labor’s much-sought “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of a petition, so that they will win even more elections.
Despite the NLRB’s pronouncements that the purpose for the change is to more effectively administer federal labor laws, the principal purpose for this radical change to the NLRB’s election process is to minimize, or rather, undermine an employer’s legitimate opportunity to exercise its “free speech” rights to express its views and opinions freely and inform its employees about collective bargaining.
If employees only hear one side — the union side — rather than being fully informed, they are more likely to vote for representation. In effect, unions want the overwhelming advantage of silencing employers in the election process.
Quick elections aren’t the only blow to employers’ options under the new rules. Ilyse Wolens Schuman and Michael Lotito explain on the Littler Mendelson blog:
Among other changes, the proposed rule would reduce from 14 to 7 days the time for scheduling a pre-election hearing from the filing of the petition. Voter eligibility issues would be deferred until after the election instead of determined at the pre-election hearing. Employers would have to state their position on unit issues no later than the start of the hearing, before any other evidence is accepted.
In essence, the proposal would eliminate pre-election evidentiary hearings as much as statutorily permissible. It would also dispense with pre-election requests for review and defer decisions on most issues currently decided at the pre-election stage.
In addition, employers would be required to provide a preliminary voter list, including names, work location, shift and classification, by the opening of the pre-election hearing. Employers would have 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.
Finally, the proposal would eliminate any automatic right to post-election Board review of contested issues.
Remember the Employee Free Choice Act? That was the “card check” bill put on the table in the early days of the Obama administration that would’ve allowed workers to form unions simply by signing union cards — no election required. But when it was clear that EFCA didn’t have a prayer of passage, the pro-union NLRB decided to go at the issue from another angle.
Voting for the current proposed rules were NLRB chairman Mark Gaston Pearce and members Kent Y. Hirozawa and Nancy Schiffer, all Democrats. Board members Philip A. Miscimarra and Harry I. Johnson III, both Republicans, dissented.
The public is invited to comment on the proposed changes. The deadline for comments is April 7. Reply comments to the initial comments may be filed by April 14. The NLRB also plans to hold a public hearing during the week of April 7.