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By Chris Opfer
March 4 — Senate lawmakers March 4 passed a resolution (S.J. Res. 8) to block National Labor Relations Board rules revising the representation election process, teeing the measure up for House consideration later this month.
The disapproval resolution challenges NLRB rules (RIN 3142-AA08) slated to take effect April 14, which supporters say are intended to streamline the representation election process. Adopted by the board in a 3-2 vote in December, the rules would allow union election petitions to be transmitted electronically, require a preelection hearing to be held within seven days of the filing of a petition in most cases, and postpone certain voter eligibility disputes and other appeals until after the election takes place.
“The NLRB’s rule to shorten union elections to as little as 11 days allows a union to force an election before an employer has a chance to figure out what is going on,” Sen. Lamar Alexander (R-Tenn.), who sponsored the resolution, said in a statement following the vote. “Senate passage of this joint resolution is an important first step in stopping the NLRB’s harmful rule and preserving every employer’s right to free speech and every employee’s right to privacy.”
The Republican-controlled House is expected to take up a companion resolution (H.J. Res. 29) after lawmakers return from recess March 16.
The White House Office of Management and Budget issued a statement of administrative policy shortly before the Senate advanced the resolution in a preliminary vote March 3, saying President Barack Obama's senior advisers will recommend that he veto the measure if it passes both chambers of Congress.
Republicans in both chambers said March 4 that the resolution shines a light on one of a number of recent moves by the five-member NLRB and General Counsel Richard F. Griffin to tilt the scales in favor of unions. House resolution sponsor Rep. John Kline (R-Minn.) told Bloomberg BNA March 4 that lawmakers may try to tack a similar measure onto other legislation in an effort to block the NLRB rules.
“We think it’s very, very bad policy and I don’t foreclose any options,” Kline, the House Education and the Workforce Committee chair, said when asked about adding the resolution's language to other legislation. “Certainly, there is the possibility for doing riders on appropriations bills and we’ll be looking for other opportunities.”
The NLRB defended the changes in a fact sheet released when the board announced the new rules. The board said the rules will “increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board's rules on documents and communications in light of modern communications technology.”
House lawmakers debated the merits of the NLRB rules in a March 4 Education and the Workforce subcommittee hearing.
“For those members who served on the committee in previous congresses, our discussion today may elicit a dreadful sense of déjà vu,” Rep. Bradley Byrne (R-Ala.) said. “That’s because for nearly four years the Obama [NLRB] has sought to radically alter long-standing policies governing union elections, and as the board pursued this misguided effort, House Republicans led by this committee, have consistently fought to defend the rights of America’s workers and job creators.”
Republicans and the employer community have roundly criticized the rule changes since the board first proposed them in 2011. Opponents say the changes would give unions the upper hand in representation elections by allowing them to spring a “quickie” vote on whether employees want to be represented by a labor organization as early as 11 days after filing a petition.
The U.S. Chamber of Commerce and other business groups suing to block the rules have also argued that they limit employees' ability to make informed representation decisions and violate workers' privacy rights by requiring employers to divulge personal e-mail and phone numbers.
“What we have here is [an attempt] to steamroll elections in the name of streamlining the process,” Arnold Perl, an attorney at Glankler Brown PLLC, told the House panel. “And by doing so, the board's majority prevents and impedes reasoned and informed choice by employees.”
Rep. Jared Polis (D-Colo.), the subcommittee's ranking member, noted that the rules will obligate an employer to turn over only that contact information that a worker has voluntarily given to the employer. He also said the rules seek to make the representation elections process fair for all involved.
“How can you even have a competitive election process if you only allow one side to communicate to the voters?” Polis asked. “The choice of privacy that the employee has is whether to give their personal information to the company,” he added. “In a competitive election process, you have to allow both sides to campaign.”
Democrats also said the rules are intended to prevent stalling tactics that certain employers may use to slow down the election process. Perl and Glenn Taubman, an attorney with the National Right to Work Legal Defense and Education Fund, maintained, however, that stalling cases are “outliers.” They argued that representation elections occur a median of 38 days from the filing of a union representation petition.
California nurse Brenda Crawford, also testifying at the hearing, said she and her colleagues participated in a union organization drive in 2011, but that it failed in part because of delaying tactics and disputes over the scope of the potential bargaining unit by her employer, Universal Health Systems Inc.
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Text of the resolution is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9u5pmn.
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