TRSA Files Comments Opposing NLRB Election Rule
In February, The National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) containing proposed changes to the rules governing union-representation elections. The proposal is available here. The proposed rule is very similar to the original “ambush” election proposed rule issued by the Board in June 2011. TRSA submitted comments this week opposing the rule as currently written.
The original ambush-election rule would have significantly altered the entire union-representation election process in favor of unions. It sought to do this by restricting employers’ due process rights to effectively shorten the time between when a union petitions for an election and when the Board conducts the election. Right now, the median time between petition and election is 38 days. Under the original ambush-election proposal, the time frame could have been as little as 10 days. The shorter the period leading up to the election, the less time employers and employees have to communicate about the general disadvantages of unions, or about a specific union attempting to organize the workplace. Thus, the original ambush rule would have hampered businesses’ free speech and due process rights, while also greatly limiting worker access to information needed to make an informed choice about union representation.
The Board issued a final rule in December 2011, which omitted several contentious provisions from the original proposal. In response to a challenge in May 2012 by TRSA and our allies in the Coalition for a Democratic Workforce (CDW), a federal court struck down the final rule on procedural grounds. The judges held that the Board had failed to include Member Brian Hayes in the rule-making process. As a result, the Board lacked the necessary quorum to issue the rule. The Board appealed the decision to the U.S. Court of Appeals for the DC Circuit. While the appeal was pending, new issues arose regarding the validity of then-NLRB Member Craig Becker’s recess appointment. This resulted from a challenge to recess appointments in the Noel Canning case brought by the CDW. The DC Circuit held the Board’s appeal in abeyance, pending the outcome of the Canning litigation, which is now before the Supreme Court. In the summer of 2013, the U.S. Senate confirmed five Board members, thus clearing the way for the agency to issue a new rule. In December 2013, the Board abandoned its appeal in the ambush-election case, and then in January 2014 the Board officially withdrew the rule.
The Board’s continued efforts to tamper with the election processes represent the proverbial "solution in search of a problem," as unions already are winning the majority of representation elections and almost all of those elections are taking place within 60 days – with the average election taking place within 40 days. In fact, the most recent NLRB statistics (FY 2013) show the existing election rules are working for both employers and employees. For example:
– the median number of days between petition and election is 38 days;
– 94.3% of elections occur within 56 days;
– unions won 64% of elections held (852 of 1330).
TRSA’s comments can be found here.