Since becoming president in 2009, President Obama aggressively has pursued policies aimed toward making it easier for employees to form labor unions. During 2009-10, he supported legislation that would allow unions to use "card check" procedures rather than secret-ballot elections. However, the so-called "card check" bill narrowly failed to pass a Democratic-controlled Congress because of a strong lobbying campaign to defeat the legislation and preserve secret-ballot elections.
After Republicans took control of the House of Representatives in the 2010 elections, effectively killing the card-check bill, the Obama administration turned to the regulatory arena to advance its goal of making it easier for workers to join unions. The centerpiece of Obama's campaign to boost union organizing is a regulation the National Labor Relations Board (NLRB) proposed in 2011 that dramatically would change union representation procedures. Unfortunately, this regulation will erode employers' due process rights, and NRCA opposes it.
Unnecessary restructuring
NRCA represents union, open-shop and dual-shop contractors and supports policies that maintain an equitable balance in labor-management relations. However, there is nothing balanced about NLRB's proposed regulation.
The regulation will reduce the time frame for union elections to as few as 10 to 21 days from the filing of a petition. According to NLRB data, the median time for completing elections now is 38 days, and 90 percent of elections occur within 56 days. The current time frame allows for ample dialogue between employers and employees regarding the issues at stake.
Although there are some cases in which the election is more drawn out, radically restructuring the rules to compress the time frame for all elections is not warranted to address isolated instances.
Reducing the time frame for union elections is problematic because in many instances employers are not aware of union-organizing campaigns until a petition has been filed. A union can file a petition whenever it chooses and will not file a petition until it is prepared to move ahead with an organizing campaign. However, it only is fair that an employer, especially a small-business owner, have sufficient time to prepare and communicate with employees about the complex issues involved with collective bargaining.
The National Labor Relations Act allows employers to express views regarding unions that do not contain threats of reprisal or promises of benefit. However, NLRB's so-called "ambush" regulation effectively would deny employers their rights and abilities to communicate with employees.
Accelerating the election process is a diminution of employers' basic free speech rights and will deprive workers of their opportunities to make fully informed decisions regarding union representation.
In his dissent to the proposal, NLRB member Brian Hayes states: "The principle purpose of this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."
Simply put, there is no compelling case for dramatically expediting the union election process. NRCA submitted comments urging NLRB to withdraw the regulation during summer 2011.
Strong opposition
Despite strong opposition from NRCA and hundreds of other business associations, NLRB issued a final regulation in December 2011. Although not as draconian as the original proposal, the final regulation nevertheless will severely restrict employers' due process rights. The regulation is scheduled to take effect April 30.
But the battle is not over. Sen. Mike Enzi (R-Wyo.) has introduced a resolution of disapproval designed to block the regulation from taking effect. Because resolutions of this nature require only a simple majority (51 votes) in the Senate, Enzi's resolution may have a chance at passage, and it appears there will be a Senate vote sometime this spring. How-ever, even if Enzi's resolution is approved by Congress, President Obama likely will veto it.
Unknown outcome
The last line of defense against NLRB's proposed regulation likely will be the courts.
The Coalition for a Democratic Workplace, of which NRCA is a member, has filed suit challenging the regulation. If a court fails to overturn it, you should prepare for the day when a union election petition is filed and you only have a few weeks to respond to a campaign aimed at urging your employees to join a union.
Duane L. Musser is NRCA's vice president of government relations.
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