NLRB moves ahead with controversial rules
Hospitals protest as NLRB moves ahead with controversial rules
The embattled National Labor Relations Board has pushed ahead with its controversial set of rules designed to speed up contested union elections but postponed its new requirement that most employers post a notice of union rights in the workplace.
Both changes, however, have been challenged by federal litigation from employers-rights groups including the Coalition for a Democratic Workplace, which counts as members the American Hospital Association, the Federation of American Hospitals and the state hospital associations of Colorado, Tennessee and Texas, according to its website.
The national labor board’s recent actions have been closely scrutinized in healthcare, where union leaders have made no secret of their plans to strategically target hospital jobs that cannot be moved offshore. Labor leaders have said the new rules are needed to thwart employers’ practice of filing unnecessary preelection litigation to buy more time to lobby workers not to join the union. Employers say speeding up elections clearly benefits the unions.
The NLRB, which is charged by federal law with resolving disputes between unions and employers, charted an aggressive course in 2011 to speed up election times and remove procedural and legal barriers to unionization. The board aimed to do this through a sweeping—and, critics say, secretive— rulemaking process. The NLRB characterized the change as an attempt to “modernize” how new bargaining units form.
The final rule, published in the Federal Register on Dec. 22, delays litigation on bargaining-unit membership until after the voting has taken place, and gives more authority to NLRB regional directors to conduct elections without review from the full labor board in Washington.
The board also approved a rule Aug. 30 forcing most companies to post an 11-by-17inch poster in the workplace notifying employees of their rights to organize, although the NLRB said in a news release that it had postponed the effective date of the rule until April 30 in light of federal litigation challenging it.
The separate lawsuits challenging the poster requirement and the new rules on speedier elections say the Democratic majority on the NLRB was abusing the rulemaking process to push a pro-union agenda.
Management-labor attorney Charles Baldwin, a shareholder with Ogletree Deakins in Indianapolis, said conventional wisdom in Washington says the NLRB is pushing the changes through rulemaking as a “consolation prize” for union supporters because Democrats had failed to deliver labor’s ultimate goal of “card check” elections in 2009’s failed Employee Free Choice Act.
“Rulemaking has its place, but what they’re trying to do is change the tenor of the (National Labor Relations Act) through rulemaking, as opposed to letting Congress make the statute and then interpreting it,” Baldwin said.