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Archived: NLRB Boycott Threat Leaves New Union Election Rules Up in the Air

Posted on November 30, 2011

Proposed regulations that would shorten the time employers have to respond to union organizing campaigns face an unprecedented showdown vote today amid reports that the lone Republican on the National Labor Relations Board (NLRB) may boycott the session.

NLRBThe NLRB has scheduled a vote for this afternoon at 2:30 p.m. on a provision of the regulations that would deprive employers of the ability to seek court review of issues prior to a union election. NLRB Chairman Mark G. Pearce said yesterday that the board will not consider other parts of the rule that would speed up the elections and share workers’ contact information with unions.

The question is whether the NLRB will have enough commissioners present to vote on a binding decision.

Republican commissioner Brian E. Hayes threatened last week to skip today’s board meeting to deprive the two Democratic NLRB commissioners of the three members the U.S. Supreme Court has said the NLRB needs to issue regulations.

Hayes complained in a letter to Congress last week that the two Democrats on the board had not told him exactly what changes they planned to make and had not adequately shared with him the 65,000 public comments the board received.  Hayes said that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision.

“They cannot, in my view, simply be cast aside in pursuit of a singular policy agenda without doing irreparable harm to the board’s legitimacy,” he wrote.

Pearce and fellow Democratic commissioner Craig Becker are pushing for a vote on the accelerated elections proposal before Becker’s recess appointment expires at the end of the year.

Even though the Chairman’s public pronouncement does not include a provision for “quickie” elections, AIM  continues to oppose the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up. Ten-day elections are insufficient time for a company to combat the promises, lies and misrepresentations that the union has been able to make without the opportunity for an employer to present an opposing view.

Organized labor wants shortened elections desperately since first-time union elections produce contracts only about 56 percent of the time. Unions are often unable to bargain to an agreement and lose their majority representation assumption as employees express “buyer’s remorse.”

The proposed rules seriously impact how a bargaining unit is formed, remove the employer’s ability to challenge pre-election, delay questions regarding the unit until after the election and provide hearing officers with authority to determine if an election should be held despite the existence of challenges.

Legal and political experts disagree about whether Hayes can single-handedly stop the accelerated union election rules. Some maintain that the NLRB cannot issue rules based on the votes of only two commissioners, while others maintain that the board may move ahead with today’s vote.

AIM will update members on the results of this afternoon’s session.