Downsized NLRB rules don’t appease critics
The National Labor Relations Board blinked in the face of intense political pressure, passing a smaller package of union-regulation reforms that satisfied neither critics of the federal agency nor its supporters in organized labor.
On a 2-1 vote Nov. 30, the NLRB voted to send eight specific rule changes to its staff, which will draft a final rule widely expected to be approved by the board before the end of December. The vote was closely watched in healthcare, an industry that is a major target for unions and where labor costs typically make up half of hospital budgets (Sept. 5, p. 6).
The two most talked-about changes approved would take away some pre-election appeal rights and delay litigation over bargaining unit membership until after the vote takes place.
However, the Democrat-appointed NLRB chairman, Mark Pearce, decided to defer action on some of the most controversial changes in a notice of rulemaking published in June after public and political opposition and a threat by the board’s only Republican to resign in protest.
For example, the board’s vote did not include a change that would have set a 14-day deadline for holding union elections. Nor did the resolution include a proposal that would have forced employers to hire legal counsel and declare all of their potential legal arguments against an election within seven days of being presented with union-signature cards.
Still, Jones Day labor attorney G. Roger King— who testified before the NLRB about the proposed changes—estimated that about 70% of the substance of what was proposed is still included in the changes forwarded to staff last week.
The new rules will remove the generally accepted practice that an NLRB regional director must wait 25 days before scheduling a vote, although it’s not clear exactly how that will affect the timing of most elections. King said the average waiting time of 38 days would be cut roughly in half. “The safest thing to say is the election period will be shortened,” King said. “How much will depend on what type of issues are raised, the size of the unit and other factors.”
Pearce said during last week’s NLRB meeting that the timing changes affected only the 10% of elections in which employers use “needless litigation and disputes” to stretch the wait time before contested elec- tions to an average of 101 days.
David Johnson, director of organizing for National Nurses United, said the changes do nothing to stop the “outrageous tactics” employers use in the weeks before an election to discourage workers from joining. “In many cases, these new proposed rules would have no effect on the timing of an election, unlike the rules that were proposed in June, which would have dramatically shortened the time before an election,” he said. “It will somewhat limit employers’ ability to drag out an election for months, but it will not significantly shorten the time before the average election.”
While union officials say delaying elections benefits employers by giving them time to hire anti-union consultants, management-labor attorneys say that shortening the time to the ballot box benefits labor by limiting the ability of employers to communicate with workers.
On the same day that the NLRB voted for its changes, the Republican-controlled House of Representatives approved the Workforce Democracy and Fairness Act, which among other provisions stipulates that no union vote can be held before 35 days of debate. However, even supporters of the bill said it appeared to have little chance of success of passage in the Democrat-controlled Senate.
Brian Newell, communications director for the bill’s chief sponsor, Rep. John Kline (R-minn.), said the bill has no sponsor in the Senate, and he was not aware of any senator who planned to sponsor the law in the upper chamber. Newell said the bill remains relevant because NLRB Chairman Pearce said he plans to reintroduce his more controversial labor-law changes sometime next year.
The board found itself in the cross hairs of partisan acrimony after it released a rare notice of proposed rulemaking in June, drawing more than 60,000 public comments, including from the American Hospital Association.
The board includes two Democrats and one Republican, but Democrat Craig Becker’s recess appointment expires at the end of the year. That adds urgency to Pearce’s push for the rule changes, because the board can’t take action without a three-member quorum. The NLRB is supposed to have five members, but experts say there’s virtually no chance the Senate would approve another nominee to the board before the end of this year.