Republican lawmakers said they would make reining in the National Labor Relations Board a priority next year, after the board announced a series of rulings and announcements that were cheered by union leaders and slammed by business.
“At nearly every turn, this National Labor Relations Board has operated as a union advocate — instead of as the umpire it was intended to be. In the new Congress, I will work to roll back this partisan overreach and restore fairness to the board,” said Sen. Lamar Alexander, R-Tenn.
Alexander will be the chairman of the Senate Health, Education, Labor and Pensions Committee once the GOP majority takes over in January. He has previously promised to purse legislation to rein in the NLRB by moving it to a six-member board, evenly split between Republican and Democratic appointees. Such a change would mean the board would be likely to deadlock along partisan lines in controversial cases.
House Education and the Workforce Committee Chairman John Kline, R-Minn., and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe, R-Tenn., issued a joint statement also slamming the NLRB and indicating that they would also target the board in the next Congress. “The committee has been leading the fight against the president’s radical labor board, and rest assured, we will continue to do so.”
The statements came after the NLRB brought an early Christmas to organized labor by issuing a major new rule Friday that will speed how quickly workplace organizing elections are held.
The NLRB said businesses now have seven days after the board authorizes a workplace election to raise any concerns. It strictly limited the objections employers could raise and said the board’s regional administrators could defer questions about which workers should be allowed to vote until after the election.
The rule, which unions had long wanted, would allow most union elections to be held about two weeks after they are sanctioned, a process that currently can take months. Businesses typically used the interim period to make the case to their workers that unionizing wasn’t in their best interests. Under the new rule, businesses will have little time to do this.
The NLRB also required companies to turn over employee contact information to unions, including personal cell phone numbers and email addresses, regardless of whether the workers authorized the disclosure.
Board Chairman Mark Gaston Pearce said the changes were meant to “modernize the representation case process and fulfill the promise of the National Labor Relations Act. Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”
Labor leaders applauded the new rule: “The modest but important reforms to the representation election process announced today by the National Labor Relations Board will help reduce delay in the process and make it easier for workers to vote on forming a union in a timely manner,” said AFL-CIO labor federation President Richard Trumka.
NLRB critics said the rule was tilted to help unions win. “Imagine a presidential election where one candidate gets to campaign for months or years and the other candidate only finds out he is in the race two weeks before election day. Thanks to the ‘Ambush Election’ rule approved by the NLRB, that is now the problem facing job creators being targeted by unions,” said Vincent Vernuccio, director of labor policy at the conservative Mackinac Center.
On the same day, the board also ruled in a case that workers could not be prohibited from using company email systems for union activities, reversing a ruling from 2007.
Those two announcements followed a ruling Wednesday by an NLRB administrative judge that Walmart had violated the rights of six Richmond, Calif., employees when it disciplined them for participating in an 2012 anti-Walmart protest at their store. The ruling was applauded by organized labor, which has launched an aggressive PR campaign against the non-union retail giant. Walmart says it will appeal the ruling to full board.
Businesses are bracing for more such rulings before the year’s end, including one that may make it easier for unions attempting organize corporations that franchise. The NLRB’s general counsel has said companies like McDonald’s should be treated as a joint employer with individual franchises even though 80 percent of its restaurants are privately owned.
The NLRB’s current direction isn’t likely to change anytime soon. On Monday, the Senate confirmed President Obama’s nominee Laura McFerran to the five-member board. She will replace existing board member Nancy Schiffer, whose term expires Dec. 16. McFerran’s confirmation ensures the board will retain a Democratic majority until at least August 2016, when the term of board member Kent Hirozawa runs out.
Many Republicans and business groups believe that the NLRB rushed to complete the rulings and rulemaking in case a replacement for Schiffer wasn’t in place by the end of the current Democrat-majority Congress. Otherwise, confirmation would have had to take place next year under a GOP majority.
The board is federal agency charged with enforcing the National Labor Relations Act, essentially acting as an umpire in workplace and union-related matters. The president nominates board members and the Senate confirms them, but it acts independently.
Republicans and businesses have complained bitterly that the board has tilted heavily pro-union with Obama’s nominees. Schiffer was a former top lawyer for the AFL-CIO. McFerran was a former staffer to liberal Sen. Tom Harkin, D-Iowa, a long-time union ally. Hirozawa represented unions prior to joining the NLRB, while the board’s current general counsel, Richard Griffin, was formerly a top attorney with the International Union of Operating Engineers.
