Employers fight proposed union election timelines

Bob Gatty

Business organizations, including representatives of the long-term care industry, have mobilized to fight a proposed new regulation from the National Labor Relations Board (NLRB) that they contend is an effort to overcome the refusal of Congress to pass the Employee Free Choice Act (EFCA), a major objective of organized labor.

Under the new rule proposed June 21 by the NLRB, the timeline between filing a petition for certification and a union election would be shortened, a move that industry groups claim would allow for “snap” or “quickie” elections that would effectively deny employees the ability to make fully informed decisions about whether to join a union.

According to Chuck Hadden, president and chief executive officer of the Michigan Manufacturers Association, “Unions would be allowed to begin organizing a workforce secretly and then surprise an employer once enough signatures are collected. Employers would have as little as 10 days to communicate with their employees, as compared to the 38 days (on average) that occurs under current law.”

EFCA would have replaced the current secret ballot process with a system under which employees could simply check a card indicating they were in favor of establishing a union in a workplace. The measure was backed by President Obama, but languished in Congress because of the poor economy and other priorities of the administration. Then, the Republicans’ takeover of the House of Representatives last November spelled doom for EFCA.

The Coalition for a Democratic Workplace, which includes 278 local, state and national employer organizations, contends that the NLRB’s new proposed regulation amounts to organized labor’s “Plan B,” and submitted comments to the Board expressing its strong objections. Members of the Coalition include the American Health Care Association (AHCA) and the National Center for Assisted Living (NCAL). Those organizations also submitted detailed comments separately to the NLRB.

As defined by the agency, its proposed amendments would:

  • allow for electronic filing of election petitions and other documents;

  • ensure that employees, employers and unions receive and exchange timely information that they need to understand and participate in the representation process;

  • standardize time frames for parties to resolve or litigate issues before and after elections;

  • require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation;

  • defer litigation of most voter eligibility issues until after the election;

  • require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available;

  • consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals; and

  • make Board review of post-election decisions discretionary rather than mandatory.

In announcing the proposed regulatory changes, NLRB Chairman Wilma B. Liebman noted that the Board has revised its rules periodically in order to make the representation process work as well as possible. “One important result,” she said, “has been to reduce the typical time between the filing of an election petition [which triggers the Board’s procedures] and the actual election.”

But Liebman contended that current rules “still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.”

The Coalition, however, charged that “shortening of the timetable for holding elections improperly denies employees the time and information necessary to make a fair and informed decision regarding union representation, especially in conjunction with the deferral of important unit determinations until after the election.”

In their comments submitted by the New York law firm Jackson Lewis LLP, AHCA and NCAL essentially contended that the proposed rule is designed to provide a solution in search of a problem.

“The NLRB’s current representation case procedures are fair, efficient and reliable,” the statement said. “They work well, as they have for many years. The Board’s concerns for delay in handling representation cases lack a convincing foundation.”

Declared the organizations’ 22 pages of detailed comments: “The Board’s proposed rules are based on flawed premises and usurp congressional policy choices. Representation elections, they posit, should be conducted at once; all else is distraction. Worse, any period for employees to contemplate their choices or to obtain a clear definition of the voting unit gives rise to an interference more sinister still. The proposed rules assume employers have no legitimate role to play in employee decisions on union representation and collective bargaining.”

Board member Brian Hayes dissented from the proposal, saying that the majority members announced their intent to speed up the pre-election process and establish a more limited postelection process “that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress.”

The NLRB provided 60 days for public comments to be submitted and held two days of hearings in mid-July, with an additional 14 days for replies to be submitted. Those deadlines, of course, have passed and a decision is pending.

Bob Gatty has covered governmental developments for the trade and business press for more than 30 years. He is founder and president of G-Net Strategic Communications, Sykesville, Md. Long-Term Living 2011 October;60(10):16-17

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