IRI Intelligence Briefing

News and Developments Affecting the Workplace

Volume Number & Date: 
Vol. 3 No. 3 - July 2011

Impacts of Proposed Obama Board Election Procedure Reform

The labor-leaning National Labor Relations Board (NLRB) held public hearings in Washing- ton the week of July 18 about proposed changes to reform election procedures to “reduce unneces- sary barriers to the fair and expeditious resolution of questions concerning representation.”1 Proposed rules would lead to the most dramatic changes to federal la- bor law since the Taft-Hartley Act of 1947.

Union leaders supporting the proposed rules argue that employers now have an “enormous advantage” over the current system governing representation elections.2 Cur- rent law is “completely tilted in favor of the employers,”3 said Mary Kay Henry, president of the Service Employees International Union (SEIU), a union closely allied with and longtime financial supporter of President Obama.

“[O]ur current system has become a broken, bureau- cratic maze that stalls and stymies workers’ choices,” stat- ed AFL-CIO president Richard Trumka. “And that dimin- ishes the voice of the working people, creates imbalance in our economy and shrinks the middle class.”4

What’s at Stake?

Under the proposed rules, NLRB-conducted elections could be held in as few as 10 days after a union files a representation (RC) petition with the Board. Such so- called “ambush elections” could enable unions to conduct months- or years-long organizing campaigns unbeknownst to an employer and then request an election when support for union representation is strongest.

As a result, the new rules could:

  • Severely inhibit an employer’s ability to communicate a preference for direct working relationships with em- ployees and the benefits of a union-free workplace
  • Undermine an employee’s ability to make an informed decision regarding unionization without the benefit of hearing both sides of the unionization debate
  • Make it far easier for unions to win elections by getting out the vote among committed union supporters

The Board also has proposed rules to:

  • Defer litigation of most voter-eligibility issues until af- ter an election is held
  • Require employers to provide the NLRB with an elec- tronic list of all eligible voters (known as the Excel- sior list) that includes employees’ e-mail addresses and phone numbers, soon after an election has been sched- uled (The NLRB would then share this list with the union.)
  • Consolidate all election-related appeals into a single post-election appeals process
  • Make the NLRB’s review of post-election decisions discretionary rather than mandatory
  • Permit electronic filing of election petitions

A summary of current versus proposed procedures is pre- sented in the following table:

Current Procedures Proposed Procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions. Election petitions, election notices, and voter lists could be transmitted electronically. NLRB regional offices could de- liver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties receive little compliance assistance. Along with a copy of the petition, parties would receive a de- scription of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form,’ that will help parties to identify the issues they may want to raise at the pre-election hearing. The Regional Director may permit parties to complete the form at the hearing with the assistance of the hearing officer.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region. The Regional Director would set a pre-election hearing to be- gin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current proce- dures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agree- ments. The parties would only be required to state their positions no later than the start of the hearing, before any other evidence is accepted. The proposed amendments would ensure that hear- ings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary. The litigation may not affect the outcome of the election, and thus ultimately may not need to be resolved. The parties could choose not to raise such issues at the pre- election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 percent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election. The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The parties may request Board review of the Regional Director’s pre-election rulings before the election, and they waive their right to seek review if they do not do so. The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request.
Elections routinely are delayed 25-30 days to allow parties to seek Board review of Regional Director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election. The pre-election request for review would be eliminated, along with any delay.
The Board itself is required to decide most post-election dis- putes. The Board would have discretion to deny review of post-elec- tion rulings – the same discretion now exercised concerning pre-election rulings – permitting career Regional Directors to make prompt and final decisions in most cases.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters. Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on a process allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters. The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work- days.
Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion. Representation case procedures are consolidated into a single part of the regulations.

Point – Counterpoint

Labor activists take the position that the Board’s cur- rent election procedure allows “unscrupulous employ- ers to control the election process through delay and intimidation.”5

In advocating new rules, Rep. George Miller of Cali- fornia, the senior Democrat on the House Committee on Education and the Workforce, said election delays “inten- sify workplace conflict” by providing “opportunities for unfair labor practices, like threatening or firing workers, in order to undermine workers’ freedom of choice.”6

Craig Becker, the controversial NLRB member and former associate general counsel for the SEIU and AFL- CIO, takes that argument one step further in seeking to “eliminate the formal role of employers in union elec- tions.” “Employers should have no right to be heard in either a representation case or an unfair labor practice case,” Becker wrote.7

In his dissenting opinion, the Board’s lone Republi- can, Brian Hayes, wrote: “The Board and General Coun- sel are consistently meeting their publicly-stated perfor- mance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested pre-election issues.”

Hayes continued, “Without any attempt to identi- fy particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious pre-election process and a more lim- ited postelection process that tilts heavily against em- ployers’ rights to engage in legitimate free speech and to petition the government for redress.”

Peter Schaumber, the former NLRB chair appointed by President George W. Bush, notes that “the proposed rule demonstrates once again that the current board majority feels unconstrained by the limits of the law and its role [to] be completely neutral on the question of unionization.”8

Critics of the proposed rules point to NLRB data that demonstrate the current system is fair, efficient and working as it should. According to that data:

  • On average, union representation elections last just 38 days from the date the union files an election peti- tion to the time ballots are cast.9
  • Unions now win 64 percent of NLRB-conducted representation elections.

“[T]he Obama NLRB continues to push an activist agen- da at the expense of our nation’s workforce,” U.S. House Education and the Workforce Chairman John Kline (R- News and Developments Affecting the Workplace MN) said in a statement. “Big Labor has found faithful friends on the Obama NLRB who are working hard to ‘fix’ a process that isn’t broken. Not only will this mis- guided proposal to expedite union elections undermine an employer’s lawful right to communicate with his or her employees, it will cripple a worker’s ability to make an informed decision.”10

Critics of the proposed rules also fear that union lead- ers could file an election petition simply to get access to the Excelsior list, only to later withdraw the petition to buy additional time to campaign. With this easy access to employees’ personal contact information, union orga- nizers could be far more aggressive in targeting employ- ees who are undecided about unionization or those they may not have reached.

Major unions, primarily the SEIU and AFL-CIO, spent millions of dollars to get out the vote for President Obama and are major contributors to Democratic cam- paigns. When the Employee Free Choice Act (EFCA) failed in Congress, unions looked to their allies in the Executive Branch to implement their pro-labor agenda through rule making.

Pundits speculate that the NLRB’s proposed rules constitute the Democratic Party’s payback to unions ahead of the 2012 elections. It is, perhaps, no coinci- dence that the AFL-CIO’s Trumka threatened to desert any Democrat who did not support labor’s agenda only weeks before the NLRB announced the proposed rules.11 And labor support is critical to President Obama’s own re-election in 2012 – particularly after Democrats lost control of Congress in the 2010 mid-term elections.

A primary driver for the proposed rules is the de- cades-long decline in union membership. Last year, the number of unionized workers was 11.9 percent, down from 12.3 percent in 2009. The percent of public sec- tor employees belonging to a union was 36.2 percent in 2010, down from 37.4 percent in 2009. The union membership rate for private sector employees was 6.9 percent in 2010, down from 7.2 percent in 2009.12

Labor Dept.’s Proposed Changes

Also controversial are rule changes proposed by the De- partment of Labor’s Office of Labor-Management Stan- dards(OLMS). On the same day the NLRB announced its proposed rule changes, the OLMS published a notice that would greatly increase the reporting burden on em- ployers and consultants who do labor relations work.

The proposed rules revise the interpretation of a statutory provision in the “persuader” reporting require- ments of section 203 of the Labor-Management Report- ing and Disclosure Act (LMRDA), 29 U.S.C. 433.

As noted in the OLMS’ announcement, this section requires, in part, the disclosure of any agreements or ar- rangement between employers and labor relations con- sultants (including attorneys) involving work that has the “direct or indirect object to persuade employees whether or not to exercise, or the manner of exercising, their rights to organize or bargain collectively.”13

In the past, the DOL interpretation applied primar- ily to situations in which consultants met directly with employees. The new DOL interpretation appears to cast a much broader net, including any work in which attor- neys, survey firms, labor consultants, communications consultants and others advise clients on these matters.

What to Do?

Employers would be wise to take advantage of the op- portunity now to invest in workplace training and or- ganization development before the proposed rules, if adopted, go into affect.

One approach is through IRI Consultants’ Labor Relations Readiness System and assessments that help identify an organization’s vulnerability to union orga- nizing, prepare for a potential campaign and address weaknesses that could encourage employees to consider union representation.

As part of this system, IRI recommends that employers:

  • Develop human resource teams and appropriate leaders as subject matter resources or internal persuad- ers to identify early warning signs of union activity, deliver key messages, provide labor relations train- ing to managers, educate employees on their rights, and effectively respond to employee questions and concerns. The Labor Relations Readiness System in- cludes:
    • Train-the-trainer programs
    • Guidelines for developing a Readiness Response Team
    • A customized Readiness Manual
    • Management training and skill building
  • Seek legal counsel on new issues under the National Labor Relations Act and recent NLRB rulings and legislation and new reporting requirements under the Labor Management Standards Act
    • Develop or update materials (including training, video and communications tools) to train man- agement and educate employees
  • Provide regular internal briefings and updates for Human Resources and departmental leaders on labor law and union organizing strategies
  • Identify resources for legal counsel,communications support and Human Resources consulting
    • Commit to maintaining a positive employee rela- tions environment
    • Establish a culture that promotes employee en- gagement and gives employees little reason to de- mand third-party representation
    • Complete and file DOL reports as required

FOOTNOTES:

1. Hall, Mike. “New NLRB Rules ‘Modest Step to Election Fairness.’” AFL- CIONowBlog. 21 June 2011.
2. McIlvaine, Andrew R. “New Rules Outrage Employers.” Human Resource Executive Online. http://www.hreonline.com/HRE/story. jsp?storyId=533339685.
3. Trottman, Melanie. “Employers Criticize Proposal To Speed Union Votes.” The Wall Street Journal. 19 July 2011.
4. Hall, Mike. “New NLRB Rules ‘Modest Step to Election Fairness.’” AFL- CIONowBlog. 21 June 2011.
5. Rosenkrantz, Holly. “Labor Board Crimps Companies in Union Campaigns, Lawyer Says.” Bloomberg. 7 July 2011.
6. Rosenkrantz, Holly. “Labor Board Crimps Companies in Union Campaigns, Lawyer Says.” Bloomberg. 7 July 2011.
7. Burr, Geoffrey. “Today’s NLRB hearing shows nominations have conse- quences.” The Washington Examiner. 17 Jul. 2011.
8. Rosenkrantz, Holly. “Labor Board Crimps Companies in Union Campaigns, Lawyer Says.” Bloomberg. 7 July 2011.
9. Trottman, Melanie. “Proposal Revamps Union Elections.” The Wall Street Journal. 18 Jul. 2011. A4.
10. “Kline Condemns NLRB’s Proposal to Rush Union Elections.” Press Re- lease, Office of Congressman John Kline. 21 June 2011.
11. O’Connor, Patrick. “Trumka Cautions Democrats: Don’t Take Labor Sup- port for Granted.” WSJ Blogs: Washington Wire. 20 May 2011.
12. “Union Members Summary.” U.S. Department of Labor Bureau of Labor Statistics. 21 Jan. 2011.
13. “Employer-Consulting Reporting: Interpretation of the “Advice” Exemp- tion in Section 203(c) of the Labor-Management Reporting and Disclosure Act: Notice of Proposed Rulemaking and Request for Comments.” U.S. Department of Labor Office of Labor-Management Standards. 21 June 2011.
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