In December, the National Labor Relations Board (NLRB) issued a final regulation that dramatically will change labor union election procedures. Unless the courts intervene, the regulation becomes effective this month and will transform the manner in which union-organizing campaigns are conducted.
Background
The regulation is a major component of the Obama administration's policy of making it easier for employees to form unions. During the first two years of his presidency, President Obama supported legislation that would have allowed unions to use "card check" procedures rather than voting by secret ballot in union-organizing elections. However, the bill failed to pass a Democratic-controlled Congress after NRCA and other business groups launched a massive lobbying campaign to defeat the legislation and preserve a worker's right to a secret ballot.
After Republicans took control of the House of Representatives in 2011, effectively killing the card check bill for the near future, the Obama administration turned to the regulatory arena to advance policies to facilitate greater levels of union organizing. NLRB first proposed a regulation to dramatically change union representation procedures in 2011. Unfortunately, this regulation seriously could erode employers' due process rights. NRCA strongly opposes it.
NRCA represents union and open-shop contractors and supports policies that maintain an equitable balance in labor-management relations. However, NRCA has strong concerns with this regulation, which will reduce the time frame for union-organizing elections to as few as 14 days from the filing of a petition. In 2013, the median time for completing uncontested elections was 38 days and 59 days for contested elections. NRCA believes it is necessary to allow sufficient time for informed dialogue between employers and employees.
Dramatically reducing the time period for union elections is problematic because, in many instances, employers are unaware of union-organizing campaigns until a petition has been filed. The union is free to file a petition whenever it chooses and will not file a petition until it is prepared to move ahead with a campaign.
Greatly accelerating the time frame of the election process denies employers basic free speech rights and deprives workers the opportunity to make fully informed decisions regarding union representation.
Opposition
Given these concerns, NRCA and hundreds of other organizations submitted comments urging NLRB to withdraw the regulation when it first was proposed in 2011. However, NLRB moved forward in early 2012 and issued a final regulation with few changes from the original proposal. In response, the Coalition for a Democratic Workplace (CDW), of which NRCA is a member, filed a lawsuit challenging the rule in court. In the end, a court ruled NLRB did not have a proper quorum in place when it issued the regulation in 2012, thus invalidating it. This was a significant legal victory for NRCA and CDW.
After gaining several new board members, the agency reissued a proposed regulation in February 2014 with a proper quorum in place. NLRB finalized the regulation in December 2014, and NRCA again filed comments opposing the rule. New rules for union elections put in place by the regulation are to become effective April 14.
Efforts to block the rule from taking effect continue. In early March, the Senate approved a Resolution of Disapproval (S.J. Res. 8) authored by Sen. Mike Enzi (R-Wyo.), which would block implementation of the regulation under the seldom-used Congressional Review Act (CRA).
Under the CRA, major regulations issued by federal agencies can be invalidated by a simple majority vote of the House and Senate, assuming the president does not veto the resolution. Only once has the CRA successfully overturned a regulation: In 2001, a Republican Congress and president overturned an Occupational Safety and Health Administration ergonomics regulation issued at the end of the Clinton administration.
The new Republican-controlled Senate approved S.J. Res. 8 March 4 by a 53-46 vote, and the House is expected to approve it, as well. However, President Obama almost certainly will veto the resolution.
Up to the courts
CDW has again filed a lawsuit challenging the regulation on the grounds the regulation denies due process rights to employers and is inconsistent with the National Labor Relations Act. Unless the courts intervene, employers should be prepared to have as little as two weeks to respond to a campaign aimed at urging their employees to join a union.
Duane L. Musser is NRCA's vice president of government relations.
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