NLRB Proposed Election Rule Scrutinized at Congressional Hearing

United_States_Capitol_dome_daylight.jpgOn Thursday, July 7, 2011, the House Committee on Education and the Workforce held a hearing – Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice – during which the National Labor Relations Board’s proposed changes to pre- and post-representation election case procedures came under fire. Last month, the NLRB issued a proposal that would dramatically change long-standing election procedures. Among other things, the proposed rule would substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. As stated in a committee press release, “taken together, the NLRB’s proposed changes will restrict an employer’s ability to communicate with his or her employees and hinder a worker’s right to make a fully informed decision in a union election.” The Board announced that it would conduct limited public hearings on this issue later this month.

In his opening statement, committee Chairman John Kline (R-MN) claimed that the NLRB was involved with “crafting a solution to a problem that doesn’t exist.” As one witness pointed out, unions win approximately 65% of elections, which are typically held within 38 days. According to statistics provided by Kline, “last year 95 percent of all initial elections were conducted in less than 60 days. In 2009, the median time between notice of a pre-election hearing and the end of the same hearing was just 13 days.” Kline pointed out that Acting General Counsel Lafe Solomon praised this rate as “outstanding” and representative of “excellent case handling performance.” Under the NLRB’s proposal, a union election could occur in a few as 10 days.

A number of panelists took issue with the proposal’s requirement that an employer obtain counsel and submit a comprehensive position statement – or waive the right to challenge any issue left unmentioned – by the pre-election hearing, which would be set to begin under most circumstances seven days after a hearing notice is served. Former NLRB Member Peter C. Schaumber claimed that under current procedures, the parties typically negotiate a pre-election agreement during this time. Under the proposed rule, the employer would be required to identify every issue they wish to raise or risk waiving them. According to Schaumber, the limited time for holding a pre-election hearing – combined with the proposed changes to the “persuader” rules that would likely reduce the number of employer consultants – will result in smaller employers being denied due process.

On that point, business owner John Carew testified to the high cost of countering “union misinformation and false promises” generated by union organizers and stated that businesses such as his need time to find and hire representation in time for the pre-election hearing.

Witnesses also criticized the proposed rule’s moving the resolution of almost all pre-election issues – including voter eligibility determinations – to after the election, and eliminating pre-election evidentiary hearings on most contested issues. As Schaumber pointed out, the issue of who is a proper unit employee vs. a supervisor is an issue that has significant bearing on the outcome of the election itself. Postponing the resolution of these conflicts until after the election, Schaumber claimed, will have the unintended consequence of more election results ultimately being overturned by the Board.

As Rep. Trey Gowdy (R-SC) emphasized during his questioning of an attorney witness, under no circumstances would a lawyer question a jury, issue a motion to suppress evidence, or challenging whether or not a confession was voluntary after a verdict is arrived at. When asked why the NLRB would structure the proposal to move the resolution of so many issues post-election, the witness responded: “there are individuals who believe that our country would be better off if we were back up to 35% union representation . . and that there would be a better distribution of wealth” if more employees were represented by unions.

Schaumber also decried what he considered the current Board’s lack of neutrality. According to him:

the current Board consistently demonstrates that it is not neutral on the question of unionization. Rather, its majority members appear to remain mired in a period when the Wagner Act reigned supreme, when unions had rights but no obligations, when employers did not have the right to non-coercively express their opposition to unionization, and when employees had no express right to refrain. The majority‘s animating concern is the loss of union density in the private sector.

The proposed changes to the election rule, he claimed, amount to “a startling display of the current Board’s activism” that will deprive employers of expressing their position on unionization and “undermine worker’s and the public’s trust.”

Another target of criticism was the proposed rule’s mandate that employers produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing, and a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available. Business owners and workers testifying at the hearing objected to the possibility of unions obtaining more personal information about employees and expressed privacy concerns about doing so.

The only witness to speak in favor of the rule, law professor Kenneth Dau-Schmidt, stated under questioning that he could think of no reason for a worker not to join a union in this current economic climate, unless the employee harbored “religious objections.”

A complete list of the panelists, copies of their testimony, and a link to the hearing telecast can be found here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.