The National Labor Relations Board released new rules Friday that will speed up workplace organizing elections. The changes, long sought by unions, will limit the ability of employers to persuade their workers against organizing by giving businesses very little time to do it.
The board’s changes will give employers seven days to raise an objection with the NLRB after it announces that a union organizing election is required. The rule also limits the evidence that can be used at those hearings, and allows NLRB regional directors to defer most questions regarding which workers are eligible to vote until after the election.
Currently, it take several months to hold a workplace election. Employers have typically used the interim period to argue to workers that unions aren’t in their best interest. The new rules will ensure that most issues are dealt with in a little over a week, allowing the elections to happen shortly after that.
The board also will require employers to turn over all contact information they have for their employees to unions, including private phone numbers and email addresses, regardless of whether the workers have authorized that disclosure.
NLRB Chairman Mark Gaston Pearce said the changes were about “simplifying and streamlining the process” and argued that they would benefit everyone. “With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”
The rule changes were long sought by organized labor leaders, who say the delays are used by employers to undermine worker unity. “Too often, lengthy and unnecessary litigation over minor issues bogs down the election process and prevents workers from getting the vote they want,” said AFL-CIO President Richard Trumka.
The five-member board’s two Republicans, Philip Miscimarra and Harry Johnson, sharply disagreed and issued a scathing dissent, arguing that the changes were necessary, violate worker privacy and serve to make it harder for those workers to make informed choices regarding unionization: “The final rule has become the Mount Everest of regulations: massive in scale and unforgiving in its effect.”
Business groups call it the “ambush election rule.” They argue that by deferring most questions until after the election, the rules give unions a big advantage. Most of the questions raised by businesses prior to an election involve disputes over which workers should be in the “bargaining unit” and therefore allowed to vote. Now those questions aren’t likely to be resolved until after the election, at which point the union may already exist, making it harder to dislodge it even if there are questions about the legitimacy of the vote.
Geoff Burr, vice president for government affairs of Associated Builders and Contractors, said the announcement “further demonstrates the board’s shift from neutral arbiter of labor law to cheerleader for big labor. ABC opposes this erosion of workplace and privacy rights, which will lead to the unsolicited distribution of employees’ personal contact information.”
The National Association of Manufacturers noted that the NLRB had tried to pass a similar rule in 2012, only to have it struck down in federal court: “This damaging rule raises serious questions about whether the NLRB is advocating an outcome rather than acting as an impartial adjudicator.”
Critics also argued the rule was unnecessary, noting that the NLRB’s own statistics did not suggest there was problem regarding election timing. Over the past decade, workplace elections have occurred on average about 38 days after the filing of a petition, accord to the NLRB. Overall, 90 percent of all elections happen within 56 days of the filing of the petition. Unions win a majority of them. Of the 1,330 workplace elections held in fiscal 2013, unions won 852.
