Labor bill battle reborn with NLRB's new union election rules proposal

The National Labor Relations Board's (NLRB) proposed rules that could speed up union elections are drawing comparisons to a contentious union bill that failed to move last Congress.

Business groups have already begun to cite the Employee Free Choice Act (EFCA), which they heavily lobbied against, as inspiration for the labor board's new rules. But union officials and congressional aides who were involved in the negotiations over the legislation say although the union election rules may achieve some of the same goals as EFCA, they are not nearly as stringent as what was under discussion by a then-Democrat-controlled Congress.

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“We didn't get near the core of what was being discussed at that time,” said Andy Stern, former president of the Service Employees International Union (SEIU). “We're hoping to get a guarantee of ten days or less for an election. This doesn't guarantee anything.”

Stern was part of a group of labor leaders involved in discussions with senators in the summer of 2009 trying to find a path forward for EFCA. The bill, campaigned for by unions who touted newly-elected President Obama’s backing, had more than enough votes in the House to pass but couldn’t secure 60 votes in the Senate to beat back a Republican-led filibuster.

Back then, negotiators were discussing taking out the most controversial provision of the bill — a measure that would allow workers to form unions if a majority signed authorization cards stating their intent to organize, often called “card-check” by business groups. In its place would be a “quickie election” provision that would have a mandate for a union election days after a petition was filed.

Under discussion for the provision were how many days would be between a petition and a union election. But EFCA never received a vote in Congress and after the late Sen. Ted Kennedy’s (D-Mass.) seat was lost to Sen. Scott Brown (R-Mass.), Democrats no longer had the 60-seat majority necessary to push the bill through.

“They are serving some of the same goals by allowing workers to have a up-or-down vote in a reasonable amount of time,” said a Senate Democratic aide. “But these rules are not in the same ballpark as what was under discussion in 2009.”

Critics of the NLRB rules, however, have been quick to compare them to the failed bill.

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“It’s the next best thing to card-check. Organized labor wanted to have card-check because it precludes the employer from expressing its views on unionization, which results in employee discussion and debate and an informed electorate,” Peter Schaumber, a former NLRB chairman appointed by President George W. Bush, told reporters Wednesday on a conference call hosted by the Workforce Fairness Institute.

Unions and Democrats have defended the proposed rules, saying they provide more balance and help stop delays by employers in the union election process. The proposed rules would likely hasten union elections by allowing electronic filing, cutting down on litigation and providing more compliance help.

But supporters have also called the regulations modest and not nearly as far-reaching as EFCA was.

“This is, as I said, an improvement but who knows what this means? I don’t think it means elections in the speed we were talking about,” Stern said.

Stern said it was a common tactic for business groups to compare new rules and regulations to EFCA.

“If [the NLRB] have done one little thing, they would have called it [EFCA],” Stern said. “I appreciate they are going to scare everybody, raise money and be the important trade associations and important voices in Washington and scare their association members to give them a reason to be.”

The clock has already begun ticking for the labor board to issue its final rules on union elections.

By January next year, the NLRB will likely be reduced from four to just two members — Chairwoman Wilma Liebman’s term ends this August while board member Craig Becker’s term ends when Congress adjourns for the year, likely in December. A 2010 Supreme Court decision ruled that the labor board is without its authority when the five-member board has only two members.

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“I would suspect that this proposed rule will be issued before Craig Becker’s term ends,” Schaumber said. The former labor board chairman believes the board will not have the legal power to issue the rules once they are down to two members.

“If you went down to two members, no, because the Supreme Court has said that two members do not have the power to act,” Schaumber said.

Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits, said the rules are similar to EFCA because they limit the amount of time an employer can respond to a union’s petition for an election.

“A quickie election is not as good as what EFCA would have accomplished but it’s getting there because it is going to result in a much shorter time period for an employer to respond,” Johnson said.

Johnson, however, said there could have been more stringent action taken on union election rules.

“This is not as bad as a 15-day statutory amendment to the [National Labor Relations Act] that maybe unions should have pushed through two years ago when they had the Senate, the House, and the White House, but they didn’t,” Johnson said.

The Chamber, along with other business groups, plans to lobby against the proposed rules. Johnson said a lawsuit against the rules is also possible.

“First of all, we will submit comments. We will see what the final regulation looks like and then we always look at the possibility of a legal challenge,” Johnson said.

There will be a 60-day comment period for the rules and the labor board will also hold a public hearing to discuss them this July.