RPC Reg Spotlight July 11, 2011

 

Regulatory Action in the Spotlight:

 

National Labor Relations Board (NLRB) proposed rule to accelerate union elections

 

 

Adverse Effects:

 

  • Increased operating costs to businesses
  • More regulatory compliance

 

 

Response of the Obama Administration:

 

Not being able to pass the Employee Free Choice Act (“Card Check”) in Congress, the Obama administration, through the NLRB, has proposed regulations on June 22, 2011, (76 Fed. Reg. 36812), that would radically change the union representation election process.  Current rules have union elections occurring 45-60 days after a union petition.  Under the proposed rule, the election could occur in as few as 10 days. 

 

 

Impact on the United States:

 

Currently, a vote for union representation is normally held within 42 days of the filing of a petition by the union, according to labor attorney Brennan W. Holt.  However, writes Holt, “(T)he Board’s proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election…”  The rule will also give union organizers an advantage as the shortened timeframe allows employers less time to prepare for a vote.  According to Carl Horowitz, writing for the National Legal and Policy Center, “As an employer usually doesn't become aware of an organizing campaign and its gathering of requisite signatures until the filing date, he will use this six-week period to explain the company position to employees.  The new regulation would reduce this (time) elapse to 10-20 days, making it highly difficult for an employer to assess the situation and develop an effective case against unionization.”   Former NLRB member Peter Kirsanow writes in theNational Review that in 2009 and 2010 unions won approximately 68 percent of elections.  “Yet the quickie election rules proposed by the NLRB will shorten the time frame to a mere 10 –20 days.  Make absolutely no mistake: That’s not enough time for even the largest and most sophisticated employers to counter what the union has been telling employees while organizing them for the last 6–8 months.”  Kirsanow believes that not only will the union success rate far exceed 68 percent, but that many employers will choose to not even go through the expense of an election, simply voluntarily recognizing the union upon presentation with authorization cards.  Additionally, the proposed rule would compel employers to make available to the union a list of voters within two days after the election is scheduled, down from the current seven days.  These lists are to include names and addresses, and would now require phone numbers and email addresses, all of which raise potential employee privacy issues.  A two-day deadline facilitates organizing on behalf of the union, and gives them grounds for appeal if the list is disputed as to its sufficiency/adequacy.  There is no reciprocal obligation on the unions. 

 

 

In Closing:

 

This is the Obama administration’s latest attempt at imposing by fiat when the legislative process has failed them.  Dissenting NLRB Member Brian E. Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. “Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”  The NLRB will hold an open meeting on July 18, 2011, to consider input from interested parties on the proposed rule.  There is also a 60-day period for written comments.

 

 

Relevant Legislation:

 

The Education & the Workforce Committee held a hearing on July 7, 2011, titled, "Rushing Union Elections:  Protecting the Interests of Big Labor at the Expense of Workers' Free Choice".  Stated Chairman John Kline, "Where Big Labor can’t convince workers to unionize through an open and fair process, the NLRB will step in to stifle an employer’s free speech and undermine an employee’s free choice."  He added, "The board’s recent proposal is part of an ongoing effort to promote a culture of union favoritism that is creating greater uncertainty among America’s job creators.  We cannot sit by and become willing accomplices in the NLRB’s job-destroying agenda.”