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Latest News - April 2015

April 7, 2015
Agency's union 'speedy election' rule has no firm deadlines

The National Labor Relations Board's guidance for its controversial new rule intended to speed up the scheduling of union workplace elections gives no firm rules on scheduling elections, merely stating that should be held "at the earliest date practicable."

The new rule would make it easier for labor organizations to win the elections by giving businesses less time to try to persuade their employees against joining. The changes have been long sought by labor leaders, and President Obama's appointees to the board have been trying for four years to adopt the rule.

"I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently," wrote Richard Griffin, the board's general counsel, in an announcement Monday. "I am also confident that the dedication and professionalism consistently demonstrated by the personnel in the agency's field offices will be exhibited in the implementation of the board's new representation procedures."

The board is the agency that enforces federal labor laws. The rules, formally adopted Dec. 15, will go into effect April 14.

The changes will require that the board's regional directors set the first pre-election hearing after a union petitions to represent workers within eight days, though it gives the directors discretion to extend that by two days. Any challenges that a business has, such as disputes over who is eligible to vote in the union, must be made in detail to the board before the hearing.

"For the businesses, the key date is the seventh day—the date on which their Statement of Position [on the election] must be submitted to the NLRB. That is not much time to hire and meet with lawyers and produce and file the document, especially considering one can expect unions to start the clock ticking on Thursday or Friday afternoons before Monday holidays, i.e., the least convenient time resulting in the fewest business days to respond," said Aloysius Hogan, labor policy expert with the free market Competitive Enterprise Institute.

After that, the regional directors must schedule the election at the earliest date they can, but the rule sets no firm timelines. Instead directors are advised to "exercise their discretion." Under the old rule, elections were automatically delayed 25-30 days to allow for any challenge to the board to be handled.

The board's two Republican members argued in their dissent to the December rulemaking that most elections would likely be scheduled within 10 days of the hearing.

The rule also requires employers to provide the personal contact information for all of their employees to the union, regardless of whether the employees have authorized the disclosure.

Even under the current rules, unions win most elections. According to NLRB data, workplace elections have occurred on average 38 days after unions first filed their petitions. Of the 1,330 elections held in 2013, unions won 852.

The board adopted an earlier version in 2011. It was subsequently thrown out by a federal court the following year because the board had lacked a legal quorum at the time it adopted the rule. The current version was adopted in December by the board with five Senate-approved appointees. Even the board's critics concede there is no doubt that it had valid quorum this time.

Business groups are nevertheless challenging the rule in court, arguing that the board has overstepped its authority.



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