The National Labor Relations Board (NLRB) wrapped up a two-day meeting April 11 in which both foes and supporters spoke out about a proposed change to the rules governing union representation elections. But even before spokespersons of pro-union and pro-business interests began their statements, a U.S. House of Representatives Committee was advancing bills aimed at stopping changes that many pro-business interests say would create “ambush” union elections. 
The Board claims its proposed changes would streamline the process of conducting union elections and prevent unnecessary litigation. Opponents claim the change would unfairly favor unions and keep employers from effectively countering union campaigns.
If at first you don’t succeed . . .
This isn’t the first go-round for the proposed rule change. The proposal matches amendments first presented in June 2011. Those amendments were later struck down when a federal district court judge ruled them invalid because the NLRB lacked a quorum when they were presented.
The U.S. Chamber of Commerce was one of the organizations represented at the NLRB’s public meeting. In a statement released the day before the meeting began, the Chamber referred to the second attempt to change the regulations by calling the proposed rules change an “undead NLRB regulation that would tilt the playing field in favor of unions and deny workers the balanced information needed to make a critical workplace decision.”
The Chamber statement also called the proposed change a result of failed efforts to get the Employee Free Choice Act through Congress. The Chamber and other organizations fighting the rule change point to figures showing that union elections take place an average of 38 days after a petition for an election is filed. Under the proposed rule, an election could come as quickly as 10 days after the petition, according to the Chamber’s statement.
Congress takes action
“Luckily, Congress is stepping in with a set of bills that would protect employers and employees,” the Chamber statement says. The bills are H.R. 4320, the Workforce Democracy and Fairness Act, and H.R. 4321, the Employee Privacy Protection Act. Both were approved by the House Education and the Workforce Committee on April 9.
A statement from U.S. Representative John Kline (R-Minnesota), sponsor of H.R. 4320, says the two pieces of legislation would guarantee that workers have time to gather facts and make a fully informed decision by ensuring that no union election would be held in fewer than 35 days. Employers would have at least 14 days to prepare a case to present to an NLRB election officer.
The legislation also would require the Board to address issues such as questions concerning voter eligibility and allegations of election misconduct before a union is allowed to represent workers. In addition, the legislation would give employers seven days to provide a list of employee names and one type of contact information chosen by each individual employee.
Varying voices speak up at meeting
At the NLRB meeting, spokespersons for unions spoke in favor of the rule amendments, saying foes are unnecessarily worried about a shortened timetable for elections and change is needed to stop uncalled-for delays. Unions represented at the meeting included Service Employees International Union; United Nurses Association of California, Union of Health Care Professionals; the AFL-CIO; International Union of Operating Engineers; International Brotherhood of Boilermakers; United Food & Commercial Workers; International Brotherhood of Electrical Workers; Communications Workers of America; and Laborers International Union of North America.
Besides the U.S. Chamber, several other opponents of the rules change spoke out during and before the NLRB’s April 10-11 meeting. The National Federation of Independent Business (NFIB) issued a statement April 10 outlining its arguments. Elizabeth Milito of the NFIB Small Business Legal Center, who also spoke at the meeting, was quoted in the statement as saying the proposed rule “would accomplish nothing more than the holding of elections at lightning speed, while reducing employees’ chances of making informed decisions about the issues.”
Milito complained that the NLRB “has proven yet again that it has no interest in protecting the small-business community from costly, complicated, and onerous rules that make it increasingly difficult for these small firms to operate, let alone grow and compete in the marketplace.”
Edgardo Villanueva of Chicago-based management consulting firm EMSI Consulting spoke at the meeting and explained that he often works with Spanish-speaking immigrants “who have never had exposure to the nuances” of the National Labor Relations Act. He urged the Board to make sure workers have ample time to “get the facts and hear both sides of the issue.”
“I am not asking for more but simply asking you to let them keep the standard plus or minus 42 days that the NLRB has historically established as a workable and fair time frame for these employee voters to become educated on what is a complex and important law,” Villanueva said.
The National Association of Manufacturers (NAM) was also represented at the meeting. In an April 10 blog post, NAM said the rule would provide information such as personal e-mail addresses, phone numbers, home addresses, and work shift information that would make workers “vulnerable to harassment or worse.”
Doreen S. Davis, partner at the Jones Day law firm, testified on behalf of the Retail Industry Leaders Association and said, “Far from streamlining representation proceedings, the changes would merely postpone litigation of key issues.”