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House hearing reveals divergent views on NLRB ‘quickie election’ rule

March 4th, 2015  |  Pamela Wolf

By Pamela Wolf, J.D.

Congressional disapproval of the National Labor Relations Board’s representation case procedures rule—the so-called “quickie election” rule—is escalating. On Wednesday, March 4, using the Congressional Review Act, the Senate passed its joint resolution of disapproval, S.J. Res. 8, by a vote of 53 to 46. Meanwhile, in the House, the House Education and the Workforce Committee’s Subcommittee on Health, Employment, Labor, and Pensions held a hearing on its counterpart resolution of disapproval, H.J. Res. 29. The testimony of the panelists at the hearing revealed a sharp divide as to whether the rule unfairly tips the scales against employers and for unions, or finally levels the playing field for employees who want to get to an up-down vote on union representation.

At the hearing on “H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation case procedures,” Bradley Byrne (R-Ala.) didn’t mince words in his opening statement, saying that “for nearly four years, the Obama National Labor Relations Board has sought to radically alter long-standing policies governing union elections, and as the Board pursued this misguided effort, House Republicans, led by this committee, have consistently fought to defend the rights of America’s workers and job creators.”

Pro-union, anti-employer action. According to Byrne, the modifications made by the Board are designed to advance union organizing: “These are by no means modest changes and they go far beyond simply ‘modernizing’ the election process. In truth, the Board’s real goal is to dramatically tilt the outcome of elections in favor of union leaders by ambushing employers and workers without allowing them to fully understand their decision. The American people are on the losing end of the Board’s extreme culture of union favoritism.”

Byrne’s sentiments were echoed by G. Roger King, Labor and Employment Counsel for the Retail Industry Leaders Association (RILA), Of Counsel with the McGinnis & Yaeger Law Firm, and Senior Labor and Employment Counsel to the Human Resource Policy Association. From his testimony, it was clear that King, on behalf of RILA, saw the new rule as both pro-union and anti-employer, among other things. He told the subcommittee that RILA fully supports the joint resolution and offered several key points about the new election rule. In his testimony, King expanded on the following objections to the new rule, presented in simplified form below:

• It is fundamentally unfair to employees and employers and is an unprecedented partisan policy initiative favoring organized labor. A union can campaign for months, or even years, file a petition with the NLRB at any time it chooses (generally when it reaches a certain level of support), carve out or gerrymander who gets to vote (including micro or fragmented voting units), and have an election as soon as 11 to 14 calendar days after it the petition is filed.
• It is a legal and procedural ‘landmine’ for employers and violates their due process rights.
• It significantly curtails the free speech rights of other employees and employers.
• It is inconsistent with the legislative history of the NLRA and violates the appropriate hearing requirement of the Act.
• It is an unwarranted intrusion into employee privacy rights—employers will be required to furnish, if available, personal email addresses, personal cell phone numbers, and personal home telephone numbers of eligible voters in Board-conducted elections.
• It will further erode the Board’s credibility as a neutral arbiter of labor relation issues in the workplace.
• It is an irresponsible rejection of Board Members’ responsibility and accountability; the new rule removes those officials who were nominated by the President and confirmed by the Senate from making important election-related decisions and places that decision-making in the hands of individuals who have virtually no public or Congressional accountability.
• It presents a dangerous precedent for future Boards; the Board’s “extraordinary policy bias in favor of unions” reflected in the new rule only invites future Boards to respond in kind.

Leveling the playing field. Brenda Crawford, a registered nurse for 27 years, saw the NLRB’s new election rule in a very different way. She has worked at Universal Health Systems, Inc. in Murrieta, California, for the last 21 years. She shared some of her experiences while participating in an organizing drive in 2013.

A majority of the RNs had signed cards supporting the United Nurses Association of California/Union of Health Care Professionals and the union filed an election petition. “All we wanted was to have a fair opportunity to vote on whether or not to form a union,” Crawford said. “However, it became clear to us that the NLRB’s election procedures were rife with opportunities for employers to create delay and uncertainty.”

“Under the NLRB’s current election procedures, employers have an unbalanced ability to demand when and how an election takes place,” Crawford observed. “In our case, the Company had the leverage of forcing a hearing on the small issue of charge nurses. To avoid the delay caused by litigating this small issue, the nurses were forced to give up the rights of those charge nurses. And that was not the only concession we had to make. The Union had to agree to the election date the Company wanted, again to avoid the need for a hearing. We had to agree to an election date that was a month and a half after the petition was filed, even though there were no longer any issues that needed to be decided for an election to take place earlier.

“The NLRB’s Final Rule will allow the parties to approach elections on a more even-footing. The new rules give Regional Directors the discretion to defer questions of individual eligibility and inclusion for small groups of workers until after the election. In our case, that means the charge nurses could have voted challenged ballots, and their status would have been resolved only if it would have affected the outcome of the election. This removes the Company’s leverage to force a pre-election hearing to unnecessarily litigate these types of small issues, and would offer greater protection for the rights of workers.”

The final rule would also improve the union’s ability to communicate with workers in a proposed bargaining unit, according to Crawford. She said that from before the election petition was even filed through the date of the election, her employer “ran a relentless anti-union campaign.” The employer communicated anti-union messages to nurses on every shift daily. Nurses were taken off patient care “constantly to attend anti-union meetings,” Crawford said. Moreover, her employer sent “anti-union propaganda emails to the nurses, and even sent anti-union text messages to the nurses’ personal cell phones on off-work time.” The employer’s anti-union campaign was very stressful for the RNs, whose main concern was patient care, Crawford explained. That stress was one of the main reasons why the organizing committee decided to concede the charge nurses in an effort to conduct an election as soon as possible.

Crawford also pointed out that the union “struggled to get accurate contact information from the Company.” Because her employer was only required to provide home addresses, the union couldn’t communicate with the nurses in the same ways the employer did. Without knowing shift times or other job information for the nurses, who work 12-hour shifts, the union had difficulty knowing when the nurses would be home, or how to avoid bothering them when they had just finished a shift.

“The NLRB’s Final Rule expands the information the Union and organizing committee would receive regarding the workers in the unit,” Crawford noted. “Had we had this information, we would have had a better opportunity to communicate with our fellow nurses, and use the same means of communication that the Company was using.”