NLRB resurrects union election rule

The National Labor Relations Board (NLRB) on Wednesday resurrected a rule to speed up union elections, drawing denunciations from business groups and Republicans who warned of an assault on employer rights.

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The proposed union rule mirrors a proposal that was struck down in court in 2012, but unlike the earlier version, the new NLRB regulation was issued with a full quorum of five board members. 

Union advocates hope the new rule will stand up in court and applauded the labor board for not backing down.

“The rules were needed then, and they are still needed now,” said Richard Trumka, the president of the AFL-CIO.

Business groups denounced the NLRB for reviving the rules and promised they would be met with a forceful legal challenge.

“It’s absolutely bad policy,” said Geoff Burr, vice president of government affairs at the Associated Builders and Contractors. Burr's group is part of the Coalition for a Democratic Workplace which, along with the U.S. Chamber of Commerce, successfully challenged the original rule in court.

“That’s why we sued them on this the first time,” Burr said. “We do plan to challenge this in the court again, and we do plan to pursue a legislative solution.”

The proposed rule would require companies to provide union organizers with the email address and phone number of workers once a petition has been filed. That would likely help organizers recruit more employees during organizing efforts.

The proposal would also consolidate appeals of union votes into a single post-election process and allow for electronic filing of union petitions, among other changes.

The labor board said it will be accepting public comments on the rule through April 7 and defended the action as clearing away “unnecessary delay and inefficiencies.”

“These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” NLRB Chairman Mark Gaston Pearce said in a statement. 

Labor unions argue the NLRB rule is needed to limit delays and obstacles for workers who want to organize. Trumka said the current election rules allow employers to “manipulate and drag out the process through costly and unnecessary litigation.”

Sarita Gupta, executive director of Jobs With Justice, a labor rights advocacy group, said the current union election system is a “senseless” system that discourages workers from organizing.

“Currently, workers who petition for a union election encounter delays of months and even years before an election is held, and some never get a vote at all,” Gupta said in a statement. 

“This rule would cut back on senseless procedural delays, closing the loopholes employers have exploited for decades,” she said.

Industry leaders, on the other hand, said the rules would allow unions to “ambush” employers with petitions and union votes.

“Quite simply, this flawed NLRB proposal would subject workers to harassment at home while denying workers reasonable time to understand and consider the implications that the election will have on their job,” said Bill Hughes, senior vice president for government affairs at the Retail Industry Leaders Association.

Republicans in Congress backed the industry criticism. Rep. John Kline (R-Minn.) called the NLRB’s action a “blatant ploy to benefit union bosses.”

"This ambush election scheme will make it virtually impossible for workers to make an informed decision in union elections,” Kline, the chairman of the House Education and the Workforce Committee, said in a statement. 

Kline’s committee has often sparred with the NLRB, which Republicans say has tilted in favor of unions during the Obama administration.

The labor board this year abandoned another rule that would have required employers to post notices informing workers of their rights to form a union. That regulation was also struck down in several courts on the grounds that it violated the First Amendment.

Republicans said the union election push is another example of the NLRB pursuing a labor-friendly agenda.

The board is acting more like a “union advocate than an umpire,” said Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate Labor Committee.

Businesses won the first fight over the union election rule in 2012, when U.S. District Judge James Boasberg struck down the earlier version of the regulation on the grounds that only two board members participated in adopting it — not the required three to form a quorum. Boasberg, however, noted his ruling was not made on the merits of the rule.

Brian Hayes, a Republican NLRB member at the time the rule was first proposed, threatened to resign in opposition. He decided to stay on but didn’t participate in the original proceedings, leading to the rule being overturned in court.

The new rule is protected from a similar court challenge because it was passed with a quorum. All three Democrats on the labor board — NLRB Chairman Mark Gaston Pearce and members Kent Hirozawa and Nancy Schiffer — approved reissuing the union election rule.

The two Republican members of the NLRB, Philip Miscimarra and Harry Johnson III, dissented on the rule.

Despite the quorum, business groups made clear they would use every tool at their disposal to fight the rules.

"Manufacturers are prepared to fight this battle again on all fronts,” said Jay Timmons, president and CEO of the National Association of Manufacturers. "We will not let this aggressive overreach stand.”

— This story was first posted at 8:45 a.m. and has been updated.