Unions see an opening in proposed NLRB rules

WASHINGTON — The National Labor Relations Board proposed sweeping new rules Tuesday to allow unions to hold workplace elections much more quickly, winning praise from Democrats and labor leaders who called it a long overdue fix to a broken system riddled with roadblocks and delays to union organizing.

But it was condemned by business groups and their GOP supporters as another in a series of moves by the board to placate organized labor and tie the hands of employers.

The board is proposing to streamline a union election process that currently has workers vote within 45-60 days after a union gathers enough signatures to file a petition, a time many companies use to discourage workers from unionizing. The new plan could cut that time by days or even weeks — depending on the case — by simplifying procedures, deferring litigation, allowing electronic filing of petitions and other documents and setting shorter deadlines for hearings and filings.

If the board makes the rules final, following a period for public comment, it would be a victory for labor unions that long have complained about employers using procedural delays and litigation to hold up elections and intimidate workers. Some employers use the extra time to hire so-called union-busting consulting firms to produce videotapes, draft talking points or create brochures to deter unionizing.

The rule proposed on Tuesday would:

  • Allow electronic filing of petitions and other documents to speed up processing.
  • Set pre-election hearings to begin seven days after a petition is filed.
  • Defer litigation of eligibility issues involving less than 20 percent of the bargaining unit until after the election.
  • Eliminate pre-election appeals of rulings by an NLRB regional director.
  • Reduce from seven to two days the time for an employer to provide an electronic list of eligible voters.

Union officials say the problem under the current system is that procedural delays and needless litigation can postpone some votes by months or even years. One study by Stanford Business School professor John-Paul Ferguson showed that 35 percent of the time that workers file a petition for a union election, an election never happens.

Joe Trauger, vice president of human resources policy for the National Association of Manufacturers, said that in 2009, labor unions won 68.5 percent of representation elections. And 95 percent of all elections are conducted within 56 days of the filing petition submitted by the union.

"These so-called snap elections are the latest attempt by the NLRB to effectively do for the unions what Congress wouldn't — stack the deck in their favor," Trauger said.

Anticipating the critics, board chairwoman Wilma Liebman issued a statement predicting the new proposal would be controversial, but she insisted the agency has a duty to resolve union elections "quickly, fairly and accurately."

"That controversy is unfortunate, but it is not a good reason for the board to abandon its responsibilities," Liebman said.

Jumping to her defense was California Rep. George Miller, ranking Democrat on the House Committee on Education and the Workforce.

"Ideologues will undoubtedly criticize and scaremonger over this modest, commonsense proposal," Miller said. "In reality, the proposal will reduce costly litigation for all parties and reduce unnecessary conflict in the workplace."

The proposal was approved by the board's majority, led 3-1 by Democrats. The board's lone Republican, Brian Hayes, issued a vigorous dissent, saying the proposal would result in the type of "quickie elections" union leaders have long sought. Hayes claimed elections could be held in as little as 10 days to 21 days from the filing of a petition, giving employers less of a chance to make their case.

"Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize or, rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining," Hayes wrote.

The board will take 75 days to review comments and replies before making a decision on whether the rule should become final.

AP-WF-06-21-11 2021GMT

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