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Latest News - August 2015

August 12, 2015
Business struggles against 'quickie' union election rule
By: Sean Higgins

Two major business trade associations announced Tuesday they are appealing a recent court ruling rejecting their legal challenge to a new federal rule speeding up union workplace elections, which is widely believed to give labor organizations the edge in the elections.

The National Federation of Independent Business and Associated Builders and Contractors will appeal that ruling, the latest development in what has been a losing battle for the business community so far. In addition to the two associations' challenge, which was rejected by a federal court in Texas last month, a different legal challenge by a coalition led by the Chamber of Commerce was rejected by aD.C. court last month.

The groups have been stymied by the lack of any clear provision in the National Labor Relations Act, the main federal law covering union relations, prohibiting the rule.

"We're cautiously optimistic that the 5th Circuit Court of Appeals will take it up," said NFIB spokeswoman Karen Harned. She argued that Congress never intended the law to allow the speedy elections, pointing to comments from lawmakers when the act was amended in 1959.

"I guess I would say its in the statute by not being in the statute," Harned said, adding, "Congress considered it and rejected it."

Courts have not found the argument persuasive, ruling that the controlling factor is instead the actual text of the law, which gives the National Labor Relations Board, the main federal agency charged with enforcing labor law, flexibility in setting up election rules.

"[T]he support on which plaintiffs rely for their interpretation of the act is its legislative history," a district court judge ruled in the NFIB's case last month. "Absent a lack of clarity in statutory language, a court need not examine the legislative history of a statute."

The court in the Chamber of Commerce's case reached the same conclusion, noting that the plaintiffs "gloss over the plain language of section 9 [of the law], and they point instead to its legislative history." The court found that "unpersuasive."

In a press release announcing the appeal, Harned said the NLRB was abandoning its charge to be a "neutral arbiter." A source at the NLRB, who requested anonymity, responded that there is nothing in the law that says the board has to be neutral.

The law states that the policy of the U.S. shall be "encouraging the practice and procedure of collective bargaining and ... protecting the exercise by workers of full freedom of association." Pat Semmens, spokesman for the National Right To Work Committee, a conservative nonprofit legal group, said that included the individual's right not to join.

"It isn't that the NLRB is a neutral arbiter between the general interests of union officials and companies and employees, but that it is supposed to be a neutral arbiter of what the NLRA means. That is what these legal challenges are about," Semmens said.

The board's new rule was formally adopted last December. It would allow for most votes by workers on whether to unionize to happen about two weeks after the board first authorizes them, instead of the current timeframe of about two months.

The rule gives employers just seven days to raise an objection after an election is announced. It also limits the evidence employers can use at those hearings, and allows NLRB regional directors to defer most questions about which workers are eligible to vote until after the election.

Employers are required to turn over all contact information they have for their employees to unions, including private phone numbers and email addresses, regardless of whether the workers have authorized that disclosure.

The changes were applauded by organized labor, which has long argued that businesses use delaying tactics to hold off elections and work to persuade workers against unionizing. Business groups contend the changes are intended to prevent workers from hearing from both sides before an election. Many business groups refer to it as the "ambush election" rule.

A study last month by Fisher & Phillips, an Atlanta management-side law firm, determined that since the rule went into effect, elections are being held an average of 26 days after they are announced, a reduction of 11 days from the previous year. However, the shorter time period has not translated into more victories for unions. They now win 63 percent of elections, marginally down from last year's rate of 64 percent.

Republican lawmakers introducedmajor legislation to reform the NLRA. The bill, titled the Employee Rights Act would invalidate the board's election rule.

Harned said they were hopeful that other challenges they have made to the rule will have traction. Those include challenges to the provisions regarding contact information are a violation of worker privacy, and due process concerns regarding whether businesses can make objections prior to a vote.

"We think those are some of our strongest arguments," she said.



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