In the most significant policy change ever undertaken by the Obama administration to strengthen the power of labor unions, a divided National Labor Relations Board issued a long-awaited final rule speeding up the union election process.
Most significantly, the rule will require businesses to postpone virtually all litigation over union eligibility issues until after the election itself, thereby depriving management of a stall tactic that unions widely claim benefits the employer. In effect, regional NLRB directors will be given broad discretion to rule such litigation unnecessary until an election takes place.
The regulation will also eliminate a previously-required 25-day period between the time an election is ordered and the election itself, and it will require employers to furnish union organizers with all available personal e-mail addresses and phone numbers of workers eligible to vote in a union election. An NLRB decision handed down yesterday essentially prohibited employers from denying union organizers access to company email. The rule will also, for the first time, allow for the electronic filing and transmission of union election petitions.
The board adopted the rule by a 3-2 vote, with the Democratic-appointed members all voting in favor and the Republican-appointed members all voting against.
“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,” NLRB Chairman Mark Gaston Pearce said in a statement. “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 was long in the making. The board proposed a similar change in 2011 but the U.S. Court of Appeals for the D.C. Circuit struck it down, ruling that the board lacked a quorum to issue the rule. The five-member NLRB re-proposed the rule in February.
The proposed regulation prompted heated criticism from the business community. The U.S. Chamber of Commerce said it would “hamstring employers facing organizing drives and give unions the upper hand.” The final rule is virtually guaranteed to prompt a similar outcry from Republican members of Congress, who have routinely opposed President Obama’s nominations to the board. Sen. Lamar Alexander (R., Tenn.), who will chair the Health, Education, Labor & Pensions committee in the next Congress, introduced a bill in September to expand the NLRB by one member so that Democrats and Republicans are represented in equal number—a change all but certain to paralyze the board with partisan deadlock.
The NLRB said the rule would bring union elections up to date with modern technology and eliminate “unnecessary litigation and delay.”
“With these amendments, the board will be better able to fulfill its duty to protect employees’ rights by fairly, efficiently and expeditiously resolving questions of representation,” the NLRB said in a statement.
The notice of petition that employers must give workers voting in union elections will be more detailed, and employers will have to post the notice and transmit it by email if they have a work email system.
The rule will also consolidate appeals related to elections into a single process. Parties appealing a pre-election decision by an NLRB regional director will have to wait until after the election takes place before they file a request for review. Post-election reviews of issues by the board will now be discretionary rather than mandatory.
The board received and considered more than 75,000 public comments before Friday’s announcement, according to its spokesperson Anthony Wagner. While business groups like U.S. Chamber of Commerce came out vociferously against the rule, labor groups hailed it.