Today, Senator Mike Enzi (R-WY) and Congressman Phil Gingrey (R-GA) introduced resolutions of disapproval (S.J. Res 36 and H.J. Res 103) of the National Labor Relations Board (NLRB) ambush elections rule.

The rule, finalized in December of 2011, would effectively strip employers of certain legal rights in cases where a petition for representation election has been filed. The rule also compresses the time between the petition and the election by eliminating the 25-day grace period resulting in elections being held in as few as 20-25 days.

Senator Enzi and Congressman Gingrey are invoking Congress’ right to review regulations issued by the federal government under the Congressional Review Act. The Act allows Congress to vote up or down on a final rule and is a privileged motion – meaning it cannot be filibustered and only needs a simple majority in each Chamber.

It is not just Congress who is upset about the NLRB’s ambush election rule.  The Coalition for a Democratic Workplace, consisting of several businesses business organizations and which the NAM is a leading member, immediately filed a lawsuit in federal court challenging this rule.

From the beginning, the NAM has taken the position that changing the rules of representation elections is not needed and will not only curtail employer rights of free speech, but it will also deprive employees of the information they need to make an important decision about whether to join a union.  In fact, President John F. Kennedy would agree with the NAM.  Then Senator Kennedy, when commenting on the 1959 amendments to the National Labor Relations Act (the Act), stated “there should be at least a 30-day interval between the request for an election and the holding of the election.”  Indeed, Senator Kennedy went on to oppose an amendment to the Act requiring less than 30 days for an election to take place.  Absent any evidence there is a problem with the current process, it seems that Board believes then Senator Kennedy, Members of the House and Senate, and the business community are all wrong.

The National Labor Relations Board (NLRB) has been making a case that representation elections need to be put on a faster track. When the Board originally published their “ambush elections” proposed rule, their notion of an ideal timeframe between when a petition for certification and the actual election worked out to 10-14 days. Of course, employers were concerned about such a compressed schedule for a number of practical reasons, but it also violates a fundamental sense of fairness most Americans hold with regard to elections.

While the final rule did not truncate the election time period as much as the proposed rule, it does shorten it to somewhere in the neighborhood of 20-24 days according to some experts. Employers remain concerned about the timing of these elections, because they often are not aware an organizing campaign is going on until they receive notice the petition has been filed. At that point, the employer has some tough choices to make and different rules to follow about how and what they can communicate to their employees. In short, they have serious ground to cover in order to catch up – meanwhile, the clock is ticking.

As we anxiously await the NLRB General Counsel’s Summary of Operations report for fiscal year 2011 – which according to my research results has not been issued later than February 4^th in the last ten years – I thought it would be good to go over some historical data about representation elections and paint a picture to show what’s really going on and why employers believe the Board’s ambush elections rule is a solution in search of a problem.

Over the ten-year period from 2001-2010, an average of 2,356 elections were petitioned for each year. Of that number, 89.9 percent of the petitions were agreed to by both parties. The median time it took from the time the petition was filed to the date of the election was 38.9 days. Finally, 93.8 percent were completed within 56 days – though in full disclosure I could not find data for 2001, so this number is really a nine-year average, but the yearly percentages for an election to be completed in 56 days ranged from a low of 91 percent in 2002 to a high of 95.5 percent in 2009. A chart is included below to illustrate these numbers.

What I believe the numbers show is a vast majority of petitions and elections are handled in a timely fashion – rendering the need to ‘fast track’ election unnecessary. It appears the cases taking longer than 56 days are outliers and we can reasonably infer they represent more complex cases in which there are questions about who is eligible to vote, the make-up of the collective bargaining unit or some other complication – all of which should be resolved prior to the election being held. Employees deserve to have the information they need in order to make an important decision like joining a union and employers deserve to know the rules before the results of the contest have been decided.

The Chairman of the National Labor Relations Board, Mark Pearce, made comments to reporters this week outlining several issues he would like to address in the coming year through rule making now that he has been bestowed three new members by recess appointment. Among the issues he would like to push via regulatory fiat are:

-          Requiring employers to furnish unions their employees’ personal email and phone numbers

-          Further compressing the time for representation elections

-          Expanding the use of electronic filings

Pearce goes on to share his ideas of the NLRB being a “household word” for everyone. An interesting goal to be certain, but the Chairman appears to have overlooked that the NLRB is in fact a four-letter word – if you want to characterize it as a word at all. At any rate, the four-letter word most Americans want to be more familiar with is spelled J-O-B-S.

The Board Chairman promises to anyone paying attention that, “We keep our eye on the prize.” Pray tell, Mr. Chairman, what prize are you talking about? Jobs are the prize Americans want, not the aggrandizement of a federal agency and a stacked deck in favor of organized labor.

This afternoon the NLRB held a public meeting to discuss and vote on Chairman Pearce’s proposal to move forward with amending the Board rules and regulations regarding the procedures for representation elections.  This meeting, timed coincidently on the same day as the vote in the House on the Workplace and Democracy Act, is one more step towards a final rule altering current procedures on representation elections. 

While Chairman Pearce’s introductory remarks appear to show this meeting demonstrates a fair and open process, what should not be overlooked is this proposal, while harmless at first glance, will alter what can and cannot be heard at a pre-election hearing, what can be appealed after a pre-election hearing and shorten the time frame for elections.

What the meeting revealed is it is likely the Board will cast aside its own tradition—securing three affirmative votes when making such major changes and allowing a dissent to be published along with the rule being finalized. Both Chairman Pearce and Member Becker do not seem too concerned, however, and emphasized the traditions and practices of the Board were not statutory and the filing of a dissent only applied to adjudications and not rule making.  It seems the Board can interpret their policies in the light most favorable to fit its current agenda.

One has to wonder then whether this meeting was nothing more than a disingenuous attempt to show the public the NLRB is making a good faith effort to be open and fair when considering a final rule.  So while there was a vote of 2 to 1 to proceed with Chairman Pearce’s proposal – we don’t know yet, what appearance the final rule will take. There is a wolf in sheep’s clothing, but the zipper is showing.

The Chairman of the National Labor Relations Board has released his proposal to pare down the controversial ambush elections rule proffered by the Board in June. Usually when something terrible is pared down it’s not as bad as its original – not so in this case. Here is my read of Chairman Pearce’s proposal – which will be voted on by the Board tomorrow.

The NLRB appears to be moving forward with short-circuiting employers rights because they’re inconvenient. Pre-election hearings will be limited to whether or not there is a question of representation – which is often not in dispute. All other pre-election issues become post-election issues and most post-election issues, the Board freely admits, are mooted by the results of a successful certification of the union.

The Board apparently doesn’t care if the election is fair – if the union succeeds, all is well. Employers will be forced to play a game of “I Win” in which the rules of the game are – the union wins. All of this will be able to happen in as little as three weeks instead of five.

For reference, Winston Churchill defined a fanatic as “one who can’t change his mind and won’t change the subject.”

Today, the National Association of Manufacturers filed a reply to the National Labor Relations Board proposed rule to implement ambush elections. In the reply, the NAM asks the NLRB to certify that it has read and duly considered all the comments submitted in response to the Notice of Proposed Rulemaking.

In its initial comments on the proposed rule, the NAM contended the NLRB has failed to comply with the Regulatory Flexibility Act of 1980 and has not provided sufficient evidence the rules are necessary. Further, the NAM believes the volume of comments provided to the NLRB demonstrate the proposed rule will have a significant impact on small businesses. This calls into question the NLRB’s certification to the Small Business Administration that it will not have a significant impact on small business.

Joe Trauger is vice president for human resources policy, National Association of Manufacturers.

Today the National Association of Manufacturers filed comments with the National Labor Relations Board (NLRB) requesting the board to withdraw its proposed “Ambush Elections” rules which shorten the time between a petition filing and a union certification election.

Under these “Ambush Elections” rules employers would have as little as 10-14 days from the time organizers file a petition to the election and certain due process rights of employers would be severely curtailed or eviscerated entirely.  The NAM opposes the proposed rules as they will severely the ability of a company to communicate with their employees about upcoming union elections. In our comments we note, “The proposed rules impair the right and the ability of employees to make an informed choice regarding their Section 7 rights and denies employers their Section 8(c) rights to communicate vital information to their employees regarding unionization.”

The NAM has argued there is no demonstrable need to make changes to the manner and timing with which certification elections are conducted.  Indeed, the NLRB has exceeded its goals with respect to representation elections and guidelines in recent years.  Fully 95 percent of all initial elections were conducted within 56 days of the filing of a petition and the median was 38 days.  Clearly, the NLRB’s proposed rules are a solution in search of a problem.

Small to medium-sized manufacturers are sure to feel the brunt of this regulation first. These companies lack the resources and expertise necessary to navigate the complexities of this rule. This regulation will hurt jobs – not create them.    

Joe Trauger is vice president for human resources policy, National Association of Manufacturers.

The Wall Street Journal editorialists consider the language a modified Employee Free Choice Act that Senator Specter claims will be the basis of legislation that could pass the Senate, judging by his comments to the AFL-CIO in Pittsburgh, that is. From “A Gift for Labor“:

In place of this proposal to automatically unionize if more than half the employees sign union cards, they are proposing an election within a week or so of a minority of employees petitioning for a union. This shotgun vote is intended to deny employees the kind of educated choice that comes with a proper discussion of the merits of unionization informed by both management and labor.

The new old “card check,” according to Mr. Specter, also gives unions unprecedented access to the workplace and meetings between employers and employees before a vote to unionize. Last we checked the Constitution, even in the age of Obama private companies haven’t signed away their property rights.

An equally problematic binding arbitration provision stays in. This idea would let a federal arbitrator impose a contract if the employer and a newly organized union aren’t able to agree within three months. In other words, a government-sponsored agent would decide what salaries and benefits management will have to pay its employees. Throw in the expanded access to company property, and this so-called compromise bill may be worse than the original.

The National Association of Manufacturers’ position is that the Employee Free Choice Act is at its heart a destructive, jobs-killing piece of legislation from which no compromise can be drawn. Senator Specter’s version proves the point.

The flogging of the “Senate Dems drop card check” story to the New York Times certainly brought renewed attention to the Employee Free Choice Act’s political prospects, which was probably the goal of the labor lobbyist(s) who were pushing the news.  At least people are talking about the bill now instead of just assuming the whole thing is dead. Smart.

Binding arbitration is still to be included in the legislation, if we are to believe labor’s spin, along with quick “ambush elections” and limits on employers being able to express their views.

Some reactions…

Walter Olson, Point of Law, “EFCA ‘compromise’, the latest round“:

The miscellaneous provisions are probably the biggest political danger to bill opponents. Both card check and compulsory arbitration are relatively easily grasped as drastic changes in the existing labor-law regime for private workplaces, and both can be effectively criticized as curtailing worker choice (arbitration would impose new working conditions not just without management’s consent, but also without a vote by workers). On the other hand, proposals that can be presented as merely increasing penalties for violations tend to go down easy in our system, and many of the other ideas can be couched as if there were incremental adjustments in things like the speed or logistics of elections — even if their cumulative effect might prove drastic.

Wall Street Journal editorial, “The New Old ‘Card Check’“:

One proposal would slash the time for an organizing vote, requiring that it be held within five or 10 days after 30% of workers had signed cards asking for a union. The median time today is 38 days. Organizers want the rush because they know the more time workers have to learn about a union, the less they usually want one. Once employees hear the other side of the story, support dwindles.

This also explains a Big Labor demand to bar companies from requiring their workers to hear management’s side during a union campaign. Labor supporters say this creates a “captive audience,” but these meetings are one of management’s few opportunities to address workers, since companies are barred from the sort of outreach allowed to union organizers — such as visiting employees at home. At the same time, Senators want to give union organizers access to company property.

Jennifer Rubin at Commentary, “Card Check Lite“:

Once again, we can only gape in awe at the misplaced priorities of certain Senate leaders. The economy is sputtering and we are bleeding jobs, but the Senate is dreaming up new ways to pummel employers. Surtaxes, energy taxes, mandatory arbitration, and on it goes. Quite a list. (Where do they think the jobs are going to come from?) If you wanted to make America an undesirable place to locate new businesses in or to expand your payroll, you’d be hard pressed to match the agenda coming out of Congress.

More good commentary and reviews at EFCAReport.com.