Lobbying not to change the rules

Leads | By Remapping Debate |

Sept. 21, 2011 — In recent years, the effort to ease the process by which workers can elect to be represented by a union has focused on passing the Employee Free Choice Act, under which union certification would be permitted based on a petition joined by a majority of unrepresented employees in an appropriate bargaining unit. That effort has been stymied by fierce and unrelenting opposition from business groups and Republican members of Congress.

In late June of this year, the National Labor Relations Board (NLRB) proposed several amendments to the existing rules governing the procedures leading up to and following unionization elections in the workplace. The Board’s fact sheet on the proposed rules describes the changes as simply “designed to fix flaws in the Board’s current procedures that build in unnecessary delays, allow wasteful litigation, and fail to take advantage of modern communications technologies.” Among the key changes, the NLRB would shorten the maximum permissible time between the filing of a petition to unionize and the employee vote on whether to accept unionization.

Comments on the proposed amendments were due by Aug. 22, and replies to those comments were due by Sept. 7. The Board held one public hearing on July 18-19. Remapping Debate reviewed the testimony at the hearing and reviewed a substantial number of the initial and reply comments.

The comments and testimony — as well as additional information on flaws in the current process uncovered by Remapping Debate’s original reporting — make clear that business interests have several basic questions that they have failed to answer. (Unions have a couple, too.) In addition, the fight over the rules highlights difficult decisions that unions have to make in terms of how to allocate limited resources.

What the rules would do

The proposed rules contain several provisions aimed at shortening the time between the filing of a unionization petition and the election. For example, both the prospective union and the employer would be required to state their positions and any objections at the start of the hearing (the most common objection to a petition to unionize is over the definition of the proposed bargaining unit). Both parties would be required to submit evidence in support of any objections at the hearing, in an effort to cut down on frivolous claims on both sides.

Additionally, litigation over a proposed bargaining unit that affects less than 20 percent of the proposed unit would be deferred until after an election takes place, in an effort to reduce time-consuming proceedings that would be rendered moot by an election that resulted in a lopsided victory for either side.

Parties would be required to seek review of any regional-level rulings in a single post-election request rather than in multiple pre-election requests.

Pre- and post-election hearings currently do not occur at predictable times; time frames for these hearings differ across cases and across regions of the country. The rules would require that pre-election hearings take place seven days after the notice for a hearing is served and that post-election hearings be held 14 days after ballots are tallied.

The rules would also streamline the process by adapting the rules to modern technology. For the first time, documents related to NLRB hearings or dispute litigation could be transmitted electronically. The Excelsior lists — lists of prospective unit members’ names, shifts, and contact information that employers are mandated to provide to unions — would be required to be transmitted electronically unless the company does not use computers, and the time period for sending this electronic list would be shortened from seven days to two. The Excelsior lists would also for the first time include employees’ cell phone numbers and email addresses. Currently, they only include home addresses.


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