Employer Groups Express Disappointment With NLRB Final Rule on Union Elections

Stay informed and ready to meet both everyday challenges and long-term planning and policy-making goals, with focused news, practical information, and strategic insights on all HR-related developments.

 

By Lawrence E. Dubé

Dec. 12 — Following the release by the National Labor Relations Board of a final rule to streamline the resolution of union elections, many of the largest business organizations in the U.S. quickly expressed dissatisfaction with the divided board's action, and several said they will consider their options for challenging the final rule.

The NLRB Dec. 12 issued the final rule amending its regulations on representation cases and making major changes in the handling of questions concerning representation under the federal labor relations law. In its notice of the final rule published in the Dec. 15 Federal Register (RIN 3142-AA08) (79 Fed. Reg. 74,307), the board said the rule changes will take effect in 120 days after publication, on April 14, 2015.

The board adopted the final rule on a 3-2 vote, with Chairman Mark Gaston Pearce (D) and Members Kent Y. Hirozawa (D) and Nancy J. Schiffer (D) voting in favor of the regulatory amendments and Members Philip A. Miscimarra (R) and Harry I. Johnson (R) dissenting.

Business Groups Voice ‘Strong Opposition.'

The U.S. Chamber of Commerce Dec. 12 expressed its “strong opposition” to the rule.

Randy Johnson, the chamber’s senior vice president of labor, immigration and employee benefits, said, “The NLRB has decided once again to issue a rule that will make it significantly more difficult for employers—especially those at small business—to respond to union campaigns.”

“Unfortunately,” Johnson said, “this new rulemaking is just one part of a set of initiatives pursued by the General Counsel’s office and the NLRB to ease unionization.”

Noting the chamber brought the 2011 lawsuit that temporarily blocked adoption of the rule, Johnson said the chamber's Litigation Center “is in the process of reviewing the current version of the ‘ambush rule' to determine its legality.”

The National Association of Manufacturers was equally critical and determined. In a statement, the organization said the NLRB “thumbed its nose at businesses and individuals who expressed serious concerns with their proposed rule to shorten the election period for union representation cases and short-circuited employer rights to ensure a fair election.”

“In fact,” NAM charged, “the Board made the proposed rule even more egregious by requiring employers to hand over the personal emails and private phone numbers of their employees to union organizers. The Board appears to have gone for the brass ring on this rule by including all that the labor bosses wanted.”

“You can bet the National Association of Manufacturers will be pushing back on this ill-advised and completely unjustifiable regulation,” the organization said.

AFL-CIO President Richard Trumka, on the other hand, said in a statement the NLRB rule changes are “modest but important reforms” that “will help reduce delay in the process and make it easier for workers to vote on forming a union in a timely manner.”

Stating “lengthy and unnecessary litigation over minor issues” has often delayed votes on union representation, Trumka said, “We commend the NLRB's efforts to streamline the process and reduce unnecessary delay.”

Majority Defends Rule as Needed, Appropriate

Pearce, Hirozawa and Schiffer wrote that some comments on the proposed rule suggest that its only purpose is to accelerate the pace of union representation elections. Commenters argue that amending the board's rules is unneeded and might deprive employers of the ability to communicate with employees about election campaigns, while limiting the opportunity of employees to inform themselves before casting ballots.

The board said the final rule will not only speed some elections but will add efficiency, fairness, transparency and uniformity to the process. The board members rejected an argument that because the NLRB has repeatedly met its own published benchmarks for conducting elections, there should be no need to change the agency's rules.

The NLRB's general counsel set the NLRB's benchmarks on election performance “to figure out what would be possible,” not to establish an ideal, the board said. “Thus, meeting those benchmarks shows only that the regions are doing the best they can in spite of the rules, not that the rules are incapable of improvement,” it said.

The board rejected the argument of some business groups that shortening the time between the commencement of a union organizing drive and the date of an NLRB election would unfairly restrict the right of employers to respond with an expression of their views.

Employers, the board said, often know that organizing is under way before a formal election petition is filed, and testimony given at a public meeting on the rulemaking proposal indicates they have less difficulty finding attorneys or representatives than some organizations claim.

The changes made by its regulatory amendments will not impair employers from expressing their views on unionization before an election, the board majority insisted.

Board Stands Behind New Voting List Requirements

The amendments follow through on one proposed change that has drawn considerable fire.

The board has decided that an employer producing a voter list before an NLRB election will now be required to include not only the names and home addresses of voters but also the available information on their personal phone numbers and e-mail addresses.

A copy of the list is provided to labor unions participating in an election, allowing them to identify and contact potential voters.

The board acknowledged that it received comments expressing concern about such disclosures but said it believes any privacy interest of the individual employee is outweighed by the need to adapt the election process to modern communications.

The board members acknowledged that even the disclosure of telephone numbers has never been required on voter lists, but they said telephones have become so common that they provide an essential point of contact with individuals. The board wrote that the information will be disclosed to a “limited set of recipients” during pre-election periods that are of limited duration, and the privacy rights of employees will not likely be compromised. The board rejected calls for an opt-in or opt-out process as impractical.

Responding to criticism by the dissenting board members, Pearce, Hirozawa and Schiffer said their approach “has been to address discrete problems with targeted solutions, while maintaining the essential elements of the existing process.”

Dissent Sees Free Speech Limitations

Miscimarra and Johnson, on the other hand, said they “still do not understand the reason for embarking on the path our colleagues have taken.” The two Republican board members joined in a dissent and said they were disappointed that the NLRB was not adopting reforms that could have won unanimous board approval and “substantial support” from employers, unions and employees.

“We,” the dissenting members wrote, “favor (i) making representation procedures more effective; (ii) having most representation elections occur at least within 30 to 35 days after petition-filing; (iii) changing the Board's internal procedures so virtually all elections—disputed or not—would occur within 60 days after petition-filing; and (iv) adopting stricter, more expansive remedies for unlawful election conduct.”

However, they argued, the majority approach favored speed over other considerations, including the free speech rights of employers guaranteed by Section 8(c) of the NLRA, 29 U.S.C. § 158(c), and the First Amendment.

“Employers and unions have protected rights to engage in protected speech prior to an election,” Miscimarra and Johnson wrote, but they argued “[t]his right only has meaning if there is sufficient time for the parties to communicate with employees about the choice of representation.”

Rulemaking Called Predictable, Unsatisfactory

The dissent also argued that the majority focused on some causes of unacceptable election delay but declined to make any major change in the NLRB's current “blocking charge” policy, under which elections may be delayed because of pending unfair labor practice charges filed by unions.

The final rule will require that a blocking charge be backed at the time of filing by a written offer of proof indicating the charge is not frivolous, but Miscimarra and Johnson said the change does not “adequately address the frequent substantial delays in processing election petitions caused by blocking charges.”

The dissenting members said they consider the final rule inconsistent with the NLRA, and they wrote that the board's rulemaking effort “has been predictable only in its nearly complete conformity to what the Board originally proposed.”

Senate Democrats Compliment NLRB

Sen. Tom Harkin (D-Iowa), the outgoing chairman of the Senate Health, Education, Labor and Pensions Committee, praised the board in a written statement.

“[T]he NLRB has taken an important step in their continued efforts to ensure that workers, unions, and employers have access to a fair, transparent, and efficient election process,” Harkin said.

“The final rule announced today 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. 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,” Harkin said.

Sen. Patty Murray (D-Wash.), who will serve as ranking Democrat on the HELP Committee in the next Congress, agreed. “These commonsense reforms bring the Board’s election process into the modern age, substantially streamline overly bureaucratic burdens put in place over the years, and are a strong step in the right direction,” Murray said in a statement on the rulemaking action.

McConnell, HELP Republicans Critical

Sen. Lamar Alexander (R-Tenn.), the ranking Republican who is expected to chair the committee starting in January, issued a joint statement with Senate Republican Leader Mitch McConnell (R-Ky.).

“I was very disappointed to see that the NLRB finalized a rule to significantly cut the amount of time available to conduct union elections,” McConnell said. “Instead of ensuring that employees are equipped with the necessary information before casting a ballot in union elections, the NLRB decision will allow unions to rush the process on unsuspecting individuals in an effort to increase the number of dues paying members.”

Alexander said the NLRB “was established to be an impartial umpire in labor disputes, but has grown into an advocate for whichever party has the White House, a trend that has worsened under this president.”

“The board’s ‘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 majority in the Senate will vote to disapprove this rule,” Alexander said.

Sen. Tim Scott (R-S.C.), who also sits on the HELP committee, agreed. “Today’s rule issued by the NLRB is perhaps the most pro-union action taken by the current administration, which is quite a feat in itself,” Scott said in a statement.

“Ambush elections hurt the ability of employees to make a well-informed choice on joining a union, as it gives limited time to hear both sides of the debate. The rule also requires an unprecedented amount of an employee’s personal information to be given to union representatives, such as personal cell phones and email addresses,” he said.

House Republicans See Fight With ‘Radical' Board

Republican leaders on the House Education and the Workforce Committee were also critical of the NLRB.

Committee Chairman John Kline (R-Minn.) and Health, Employment, Labor and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) issued a joint statement that said, “After more than three years of public outcry, the Obama board is still determined to impose an ambush election scheme on our nation’s workplaces.”

Calling the final rule “administrative overreach” that “will completely upend an election process that has worked well for decades, one that is fair and designed to foster agreement,” the legislators said their committee “has been leading the fight against the president’s radical labor board, and rest assured, we will continue to do so.”

Senior House Panel Democrat Backs NLRB

Rep. George Miller (D-Calif.), senior Democrat on the Education and the Workforce panel, has frequently defended the NLRB against Republican criticism in committee hearings, and he backed the board's decision to amend its rules.

“The current process is broken and allows for unscrupulous employers to threaten, coerce, and intimidate workers,” Miller said in a statement.

“The NLRB’s final rule will help stem these abuses by curtailing frivolous litigation, reducing delays in scheduling union elections, streamlining the appeals process, and strengthening the NLRB’s hearing procedures,” the legislator, who is retiring at the end of the current Congress, said.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the final rule is available at http://op.bna.com/dlrcases.nsf/r?Open=mauo-9rqtn6.