Labor Board Counsel Weighs in on Union Election Rules

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By Hassan A. Kanu

The National Labor Relations Board’s top prosecutor Peter Robb has suggested policy changes that would extend the amount of time between workers’ organizing efforts and an actual vote on whether to unionize their workplace.

In comments to the five-member board late April 18, Robb also recommended that the NLRB scrap a rule that blocks an election if workers accuse their employer of using dirty tricks to sway votes against unionizing, among other suggestions.

The modifications to a 2014 rule, which was enacted by a Democrat-controlled NLRB, would “streamline the process” and forward the goal of “employee choice in selecting their representative in a timely fashion,” Robb wrote.

Robb suggested the board push back the date for a hearing on a union election petition to 12 rather than eight days from the time the petition is filed. He also wants NLRB regional directors to be able to extend hearing dates by another three days.

A GOP-majority board last year asked for the public to comment on whether the NLRB should revisit the contentious regulation. That drew suggestions from a wide range of businesses, labor groups, and advocacy organizations, as well as from Democrats and Republicans in both the Senate and House.

A group of senior agency directors said the policy of setting election dates for the “earliest practicable date” leaves them with little room to be flexible, although they added that the 2014 rule generally is working well. The agency regional directors also said the election-blocking rule should be maintained. A submission from career officials in a division that reports to Robb seemed to support the rule, noting that “a small number of judicial and administrative challenges” were “uniformly unsuccessful in all respects.”

The new general counsel has faced an unusual amount of internal resistance to other policy suggestions. Robb is considering moves to strip NLRB regional directors of some of their authority and revise investigation protocols.

Branded ‘Ambush’ Rule

Many unions and advocacy groups believe changes to the election rule like those Robb suggested would stifle workers’ ability to organize and bargain collectively for salaries and employment benefits. Those groups argue that workers should be able to get from organizing efforts to a union election quickly.

The business and management community refers to the 2014 policy as the “quickie election” or “ambush election” rule. Critics say it disadvantages businesses that need more time to educate workers on the pros and cons of joining a union.

Robb was appointed by President Donald Trump. The board general counsel functions as an independent prosecutor, and has significant authority over the direction of federal labor policy. The board last December requested input from the general counsel and senior regional managers on the election rule.

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