Faster Union Voting Plan Angers Business Groups

This story appears in the April 28 print edition of Transport Topics.

The National Labor Relations Board’s proposed rule governing “representation-case procedures” garnered nearly 75,000 comments, including dissents from two of the board’s five members.

Some observers say it is shaping up as the most hotly contested aspect of labor law since the proposed “card check” legislation several years ago — a process that was aimed at avoiding secret ballots by having employees simply vote for union representation by signing a card from a union organizer.

After card check failed, the regulation was introduced initially in 2011 but withdrawn for procedural reasons arising from a legal challenge. It was then reintroduced in February.

It is backed by three of the board’s five members, including Chairman Mark Gaston Pearce, and several unions. However, a coalition of 141 business groups, including American Trucking Associations, opposes the regulation, calling it the “ambush-election rule.”

NLRB members Philip Miscimarra and Harry Johnson filed a joint dissent, breaking from Pearce and members Nancy Schiffer and Kent Hirozawa.

“The uniform thrust of the proposed changes is to greatly reduce the time between a representation petition’s filing and the election,” the dissenting board members said.

The “ambush” description came about over wanting to speed up elections as quickly as 10 days.

But the current pace for such elections often has been five or six weeks, said attorney Mark Goodwin, who represents trucking companies and other businesses. Accelerating the process is convenient for union organizers, he said, but very difficult for small businesses.

“The practical result of the board majority’s proposed rule is that employers will have as little as 10 days from petition filing to election in order to try and exercise their [protected] rights. For all employers to some extent, and for smaller employers in particular, the practical impact of this rule will often render these . . . rights illusory,” he said in filed comments with the board.

ATA General Counsel Prasad Sharma said the proposal could generate substantial litigation if enacted.

“The board’s proposed rule represents a results-oriented tipping of the balance of employer and employee interests in favor of the unions that contravenes the directives set forth by Congress in the [National Labor Relations Act] and that addresses too sweepingly an alleged problem in an area where the board has consistently met its targets,” ATA’s filed comments said.

The federation is part of the 141-member “Coalition for a Democratic Workplace” that opposes the measure.

Sharma said one of the objectives of “card check” was to make it easier for unions to organize employees and proceed with elections.

“The NLRB is now taking administrative steps to do this through regulation,” he said.

Card check was a part of the proposed Employee Free-Choice Act introduced in 2009. The provision, had it been enacted, would have allowed employees to vote for union representation by signing a card proffered by a union organizer.

James Hoffa, president of the Teamsters union, filed comments in favor of the measure.

“Delaying elections has become a routine strategy by employers seeking to buy more time to conduct anti-union campaigns,” Hoffa said. “True enough, employers have the right to express their views about collective bargaining. They do not, however, have to engage in frivolous or pointless litigation pursued solely for the purpose of achieving delay.

“These are modest, common-sense changes that preserve due process and strengthen the secret-ballot process. They update election methods so they are compatible with today’s technology,” he added.

The AFL-CIO also filed comments endorsing a speedier process.

“Under the current rules, the board is hamstrung from fulfilling its mission of protecting workers who seek an election to form a union, to exercise their full freedom of association,” said Elizabeth Bunn, an AFL-CIO organizing director. “The truth is that employers are able to exercise too much control over the timing of the election.”

The Motor & Equipment Manufacturers Association filed comments opposing representation-case procedures on privacy grounds. MEMA, the parent organization of the Heavy-Duty Manufacturers Association, said the proposal, if enacted, would compel employers to provide unions with employee names, addresses, telephone numbers and e-mail addresses.

In its comments, MEMA said Congress has been actively trying to protect citizens’ privacy. In such an environment, MEMA said, employee records should be considered confidential.

MEMA Senior Vice President Ann Wilson said her group’s members are a mix of union and nonunion companies, but they are concerned about the proposal.

“This goes way beyond what is needed. We’re all very concerned about privacy these days,” she said.