NLRB Rushes to Hold a Union-Friendly Vote Before Recess-Appointed Democrat Departs
Designed to ease the process of unionizing a workplace, the changes come as Democratic member Craig Becker's recess appointment expires at the end of the year.
The NLRB's lone Republican, Brian Hayes, said the two Democrats on the Board are "committed" to changing the rules before Becker is forced to leave at the end of the current congressional session. "Indeed, I was advised of this fact by the Board's Chairman," Hayes wrote in a November 18 letter to House Education and Workforce Committee chairman Rep. John Kline (R-Minn.).
Currently, only three people -- two Democrats and one Republican -- serve on the five-member NLRB because President Obama has not found nominees who would be approved by Senate Republicans.
Becker, who was recess-appointed in March 2010 by President Obama, will be forced to leave the Board when Congress adjourns later this year, leaving the NLRB without a quorum needed to vote on proposed changes and labor disputes.
The NLRB needs at least three of its five members to be present in order to vote. Becker, a former lawyer for the American Civil Liberties Union, is the key third member needed for the Board to take action.
The rule to be voted on this week would shorten the overall time between when a union proposes an election and when that election actually takes place, limiting the options employers have to oppose unions' efforts.
Currently, unions can petition for an election if they gain the support of 30 percent of the workers they seek to unionize. Employers can challenge this show of support, triggering an investigation by an NLRB regional director -- an un-appointed bureaucrat. Employers also can challenge the rulings of regional directors before the full NLRB prior to an election taking place.
Typically, the entire process takes about 56 days to complete, with more than 85 percent of cases being resolved within 100 days.
The proposed rule would shorten to as little as 10 to 14 days the period between a union calling an election and the election date.
The proposed rule also would defer legal challenges until after the union election has taken place, forcing employers to negotiate with the new union at the same time they are challenging the legality of the election that created it.
Other changes would directly aid union organizers in rallying support for unionization among employees.
"Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining," Hayes said in his dissent from the NLRB's proposed rule changes in June.
The most controversial provision is one that defers a challenge over voter eligibility until after the election has taken place, if the eligibility of less than 20 percent of voters is challenged.
In other words, the proposed rule would let up to 20 percent of workers whose eligibility is questioned vote in a union election -- despite the fact that all or some of those workers may have no right to vote in the election at all.
The proposed rule also would move company challenges to the election from before the election takes place to afterwards, allowing the election go forward despite an employer's legal challenges. Further, pre-election challenges to a regional director's initial ruling would be banned all together, denying an employer the ability to challenge the initial finding that an election is warranted.
The NLRB also would also be empowered to dismiss -- without the possibility of higher court review -- any post-election challenges. This means that all of the legal disputes the new rule would move to the post-election period (such as challenges to a union's support, voter eligibility, etc.) could be summarily dismissed after the new union has been created.
Finally, the new rule would require employers to give unions the telephone numbers and email addresses of all employees eligible to vote in an election, greatly aiding a union's efforts to lobby employees to join up. Currently, only names and street addresses are given to the union while employers keep other proprietary information private in the employee's file.
Hayes said the proposed changes would give unions a legislative victory by "administrative fiat," and he accused Democrats on the NLRB of playing politics with the nation's labor laws.
"Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor's much sought-after "quickie election" option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition," he wrote in June.
Republicans on the House Labor and Workforce Committee noted that Hayes has said he may boycott Wednesday's meeting, but even if that happens, the two Democrats may proceed with the vote anyway -- despite the absence of a quorum.