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NLRB schedules vote on controversial policy

By Michael P. Tremoglie | Nov 29, 2011


WASHINGTON (Legal Newsline) - The National Labor Relations Board has scheduled a Wednesday vote on a controversial policy to permit changing workplace election rules regarding votes on union representation.

The NLRB's stated position is that the new rules will simplify procedures, make them more uniform across regional offices and reduce unnecessary litigation.

But critics say the new rules facilitate labor union power.

The proposed rule at issue is the shortening of the amount of time between a union filing a petition to hold an election for union representation and the actual vote. By shortening the time, business advocates say employers will not have an opportunity to present their case opposing the union.

The employers' position was summed up during a congressional hearing last month.

Washington D.C. attorney Charles Cohen, senior counsel in labor and employment law for the firm of Morgan Lewis, testified before the House Committee on Education and the Workforce on Oct. 12 about the NLRB changes. He characterized the NLRB actions as a transparent attempt to bypass Congress on reforming the nation's labor laws.

He criticized the stated reasons the NLRB is giving for the changes as being incorrect.

"The first flaw is the incorrect premise that the current procedures for conducting secret-ballot elections 'take too long' or are 'broken,' he said, and that this delay causes unions to lose more elections.

"Unions already win far more elections than they lose," Cohen said.

NLRB says it received more than 65,000 written comments on the proposal and heard testimony during hearing. Because of the feedback it has received and because there is a possibility that the Board will lose a quorum at the end of the current congressional session, as one member intends to resign in protest of the rule changes, Board Chairman Mark Pearce will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.

The meeting of the Board's three members, to be held at NLRB headquarters in Washington, will be open to the public, although the public may not participate. Members will discuss and vote on a resolution to accept the chairman's proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.

But as Cohen noted during his testimony, "The proposed rule's shortening of the election time period inevitably will undermine the ability of employers to express their views.

"Because employers exercise no control over pre-petition union activities - and often have no knowledge of union organizing - employers exclusively bear the burdens and limitations resulting from a shorter election period. This renders disingenuous the Proposed Rule's statement that its changes 'would apply equally to all parties' and 'do not impose any limitations on the election-related speech of any party.' Invariably, the Proposed Rule's impact on the timing of elections will diminish the employer's right to express views."

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