NLRB Proposal Modest and Will Help to Reduce Unnecessary Election Delays
WASHINGTON, D.C. – A modest National Labor Relations Board proposal to update workplace election procedures would close some loopholes that have allowed parties to undermine the election process, members of a House labor committee learned today.
“Many union elections are uncontested. However, current rules provide multiple opportunities for bad actors to purposefully delay or stop an election,” said Rep. George Miller (D-CA), the senior Democrat on the House Committee on Education and the Workforce. “With delay, you wear down workers with fear and intimidation, show them how futile their efforts are as every move gets tied up in litigation, and force them to give up. This proposal limits that weapon. No more delay for delay’s sake.”
The proposal would reduce opportunities to delay elections by modernizing procedures, increasing transparency and reducing wasteful litigation. Specifically, the rule allows parties to file petitions and other documents electronically. The rule would also ensure the timely exchange of information so that all parties understand the process and are able to resolve any issues early on. It would reduce unscrupulous employers’ ability to delay elections just for the sake of delay. Finally, it would provide for a more timely delivery of voter lists as well as their phone numbers and emails.
“The purpose of the Board’s election procedures is to allow workers who want to have a vote on whether to form a union to be able to have a vote in a timely and economic manner,” said Kenneth G. Dau-Schmidt, professor of labor and employment law at Indiana University. “Yet even in the best of circumstances, when both sides undertake a good faith effort to make the process work, the Board’s procedures work against this goal. Current procedures include needless delay and the reliance on outmoded, costly and time-consuming methods for resolving issues, producing evidence, accomplishing service and engaging in effective communication.”
For instance, while most petitions by workers to hold a union representation election proceed to a vote with the consent of both parties, workers in contested elections wait an average of 124, according to a study by the University of California, Berkley. Some have been delays upward of 13 years. The NLRB reports the median time between a petition and election of 39 days, which includes both uncontested and contested elections.
“In too many cases unscrupulous employers, and the ‘union avoidance’ firms they employ, use Board process to intentionally delay the election process and give them time to intimidate employees into voting against the union through illegal unfair labor practices,” said Dau-Schmidt.
Despite claims from those who oppose the NLRB proposed rule, employers still have complete access to their employees. They can campaign 24 hours a day, on work time, in work areas. They can conduct captive audience meetings with workers and can legally fire workers for not attending these meetings.
“None of this is changed by the proposed rule. Nothing in this proposal affects what employers can say to a worker or when. And nothing in this proposal changes the election itself,” said Miller. “But what the proposal does begin to do is drawn down the ability of those who simply want to derail an election.”
One proposal to streamline the process would be to defer certain voter eligibility issues until after the election if resolution of those issues is unlikely to affect the outcome. Some have used litigation over voter eligibility as a tactic to delay the election for the sake of delay.
Rep. Rob Andrews (D-NJ) pointed out that the proposed rule is similar to congressional elections where provisional ballots are used when there are questions over a voter’s eligibility.
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