‘Quickie election’ rule likely on track despite Senate action

The U.S. Senate dealt at least a minor blow to the National Labor Relations Board’s (NLRB) rule aimed at speeding up union elections, but the rule’s April 14 effective date likely is still on track.

On March 4, the Senate voted 53-46 to overturn the rule by using its power under the Congressional Review Act. The House also will vote on the rule. Even if the House votes to overturn it, President Barack Obama has vowed to veto the legislation.

The new rule shortens the time between the filing of an election petition and the election, provides for electronic filing of election petitions and other documents, and delays legal challenges until after an election has been held. It also requires employers to provide a statement of position early in the process identifying their stand on various issues as well as lists of a potential bargaining unit’s employees and their contact information. Issues not raised in the position statement would be waived in NLRB hearings challenging the election.

Even though the Senate’s vote is a “welcome response,” employers shouldn’t relax their guard, John P. Hasman, an attorney with Armstrong Teasdale LLP in St. Louis, Missouri, says.

“Rather, employers should be preparing their management teams now and over the next month for how to lawfully respond to union organizing activity and analyzing their work groups to decide questions regarding supervisory status and appropriate unit composition,” Hasman said. “A legislative fix appears highly unlikely and the two pending legal challenges in the [Washington] D.C. and Texas courts will take some time to work their way through multiple levels of appeals.”

Hasman says unions likely are waiting to file petitions until the new rule goes into effect, even if they already have the cards necessary. “Given the advantages the new rules provide unions, it seems prudent for the unions to just wait and file their petitions next month,” he said.

Kevin C. McCormick, a partner with Whiteford, Taylor & Preston in Baltimore, Maryland, agrees that the Senate’s vote isn’t likely to stop the new rule, but “it’s still a good thing because it brings everyone’s attention to what’s going on at the Board.”

If anything can put the brakes on the rule, it’s probably the two lawsuits, but it will be a “tough road to have either court stop the effective date,” McCormick says. The two suits, filed by industry groups, argue that the new timetables in the rule take away employers’ rights by speeding up the process so that it’s impossible to effectively communicate employers’ position to its employees.

Still, by publicizing what’s going on, the congressional action makes people aware of how a small agency, the NLRB, can have a significant effect on employers, McCormick says.

Bart N. Sisk, an attorney with Butler Snow LLP in Memphis, Tennessee, agrees that the Senate vote isn’t likely to make much of a difference. He said he expects the NLRB to continue “to advance an agenda [that] favors organized labor.” If employers get relief, Sisk says it will have to come from the federal courts dealing with the lawsuits.

“That is not to say that the action taken by Congress is not important,” Sisk said. “When an agency is widely perceived to no longer be impartial and is seen as an advocate for one side against the other . . . , the agency should be held accountable.”

Employer groups speak out

The Senate vote brought cheers from foes of the new rule. “The NLRB needs a reminder that it should protect the right of American workers to join unions—not use its regulatory power to manipulate that choice—and [the March 4] vote in the Senate to overturn the NLRB’s ‘ambush election’ rule sends that signal,” Randel K. Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration, and employee benefits, said.

“This rule is a tool to facilitate union elections, not to protect workers, and shines a spotlight on the Board’s focus, which is to increase union membership rolls at almost any cost,” Johnson said. “It overturns well-settled policy, unfairly favors unions, strips employers of basic legal rights, threatens worker privacy, and has left the employer community with no recourse other than to sue.”

The National Federation of Independent Business (NFIB) also has spoken out strongly against the new rule. In a statement released the day before the Senate’s vote, the NFIB said the new rule “allows unions to take as much time as they need to secretly plan an election to organize a workplace but it gives the business owner less than two weeks to prepare.”

“That tilts the game strongly in favor of the union because the owner has very little time to educate his workers and secure legal counsel to help navigate the process,” NFIB senior legal counsel Beth Milito said. “The union can plan for weeks, even months, in advance and the owner has to scramble to catch up.”