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NLRB rulemaking would streamline union elections

A Notice of Proposed Rulemaking has been issued by the National Labor Relations Board regarding its existing rules and regulations about union elections

The National Labor Relations Board has issued a Notice of Proposed Rulemaking (NPRM) to amend its existing rules and regulations governing union elections— changes the Board stated will “reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.” Not surprisingly, trade unions, including the Teamsters, are praising the reforms and business lobbies, led by the U.S. Chamber of Commerce, are denouncing them.

What’s more, in what some business leaders take as a one-two punch in the face of employers by the Obama Administration, the Dept. of Labor (DOL) also this week announced a proposal to require companies to report their use of labor relations consultants.

Per NLRB’s own wording, if finally adopted after a public notice-and-comment process, the amendments would:

  • Allow for electronic filing of election petitions and other documents
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation
  • Defer litigation of most voter eligibility issues until after the election
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals
  • Make Board review of post-election decisions discretionary rather than mandatory

DOL stated that its proposed rule would “revise the interpretation of ‘advice’ as it pertains to the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act.” The proposal uses the “plain meaning of the term ‘advice’ as ’an oral or written recommendation regarding a decision or course of conduct.’

According to the U.S. Chamber of Commerce, both the NLRB and DOL proposals aid unions at the expense of employers. “When organized labor failed to pass its top priority, the card check bill, we knew it was only a matter of time before the administration used the regulatory process to tilt the playing field in organized labor’s favor during union campaigns,” said the Chamber’s Randy Johnson, senior vp of labor, immigration, & employee benefits, in a prepared statement. “The proposed rules by the DOL and the NLRB… are a blatant attempt to give unions the upper hand by limiting the ability of employers to exercise their free speech rights,” he added. Click here to read the comments the Chamber has filed with NLRB on this NPRM.

However, the NLRB chair made it plain that the Board’s proposal is not punitive nor without ample precedent, contending that this effort to streamline the union-election process to make it faster and fairer meshes fully with the historical progress of U.S. labor law

“One of the most important duties of the NLRB is conducting secret-ballot elections to determine whether employees want to be represented by a labor union,” said Chairman Wilma B. Liebman in a statement. “Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years. Under the law,” added Liebman, “as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases.”

Teamsters General President Jim Hoffa said in a statement that the NLRB has “proposed a common-sense rule to make sure workers have the basic right to vote” by eliminating voting delays and modernizing the “outdated system” of union organizing elections. “The federal government has let big corporations abuse the legal system for too many years,” he contended. “Irresponsible corporations often delay organizing votes and retaliate against employees who want to form a union.

“In our experience, more than a third of employers fire workers who want to unionize,” Hoffa continued. “That’s why America has lost 10% of its middle-class jobs since 2000. This rule gives workers a reasonable chance to join together to restore fairness and balance. If corporations can join together to hire lobbyists without being challenged by abusive lawsuits, then workers should also have that right…. I strongly commend the NLRB for giving workers a bit of help to get ahead in this economy,” he added.

The American Trucking Assns. (ATA) told FleetOwner it is “concerned about the NLRB’s sweeping proposal to tilt the field toward the Obama administration’s union allies. This proposal undermines more than 60 years of labor law by curtailing the ability of employers to educate workers about the possible pros and significant cons of organizing.

“Furthermore,” the statement read, “we're disappointed to see the NLRB enact through regulation changes to existing labor law that Congress was unwilling to make and think this is stunning example of overreaching by the administration."

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The International Warehouse Logistics Assn. has declared its “strong opposition”

to the DOL proposed rulemaking, stating that it “would interfere with employers' right to engage in private conversations with consultants regarding labor relations, including attorney-client communications.”

"Once again, we see the administration working at cross purposes with its aim of promoting an economic recovery by taking another step that will worsen our persisting economic recession and encourage the relocation of jobs outside the United States,” said IWLA president & CEO Joel Anderson. “Under the proposed rules, if my member companies ask labor consultants to prepare materials on how to best communicate with their workforce, the employer must maintain and register this information with the Labor Department."

NLRB’s Liebeman stressed that the public 75-day notice-and-comment process will be an integral part of the Board’s final rulemaking. “The Board’s current rules have been developed over many years,” she noted, “and the public notice-and-comment process – which did not exist when the Board’s first rules were adopted – has rarely been used. The notice of proposed rulemaking lays out the proposed changes in great detail, fully explains the reasoning behind them, and invites comments. An open public hearing will also be held.

“Before adopting any final rules,” Liebman added, “the Board will carefully consider what it learns from persons with a stake in the representation process. The Board members approach this rulemaking with open minds.”

NLRB has posted a detailed ‘fact sheet’ page on this NPRM on its website.

As for the DOL proposal, the public can submit comments online at The deadline for comments is Aug. 22.

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