In a move that could significantly impact unionized retailers and manufacturers, the National Labor Relations Board (NLRB) adopted a new rule to alter and accelerate union representation elections.
The new rules would go into effect on April 14 and would allow electronic filing and transmission of election petitions while aiming to eliminate or diminish litigation. The new amendments would also allow parties to consolidate multiple appeals into a single appeal and would require employers to provide a statement of position early in the process identifying the employer’s stand on various issues as well as lists of a potential bargaining unit’s employees and their contact information. Additionally, issues not raised in the position statement would be waived in any NLRB hearing challenging the election.
The NLRB’s action, termed by some as the “ambush election rule,” marks the second time the controversial amendment has advanced since it was first introduced in June 2011. The proposal was struck down a year later when a District Court in Washington, DC said the NLRB did not have its full slate of five members in place (only four of the five seats were filled at the time).
Opponents of the new changes believe the new ruling may not hold up, either, after the term of board member Nancy Schiffer – a Democrat – expires this month. Schiffer voted to approve the changes. However, the new candidate nominated by President Barack Obama to potentially replace Schiffer, Sharon Block, is also a Democrat. She has already gained preliminary approval by a Senate committee, and now awaits a vote from the full U.S. Senate early next year.
Those opposed to the changes believe they are arbitrary and subjective and tilt the playing field in favor of organized labor. They also feel that the shortened timelines do not allow management the necessary time to present its side in a union campaign.
“This is a devastating rule for employees throughout the retail industry,” David French, the National Retail Federation’s senior VP of government relations, said in a statement. “These men and women will be forced to make a decision that could drastically change their workplace environment without adequate information and time to consider the issues before them. The NLRB already conducts a vast majority of representation elections within a reasonable time frame and this rule is simply unnecessary and unfair.”
However, NLRB chairman Mark Gaston Pearce said: “I am heartened that the board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act. “Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”
The rule passed 3-2, with the three Democratic members – Pearce, Schiffer, and Kent Y. Hirozawa – approving it and the two Republican members – Philip A. Miscimarra and Harry I. Johnson III – dissenting.