NLRB General Counsel Issues Guidance Memorandum on ‘Quickie Election’ Rule
blog, HR Compliance,
On Monday, April 6, NLRB General Counsel Richard F. Griffin, Jr. issued a guidance memorandum on modifications to the representation case procedures that will take effect on April 14 under the controversial so-called “quickie election” final rule. The memo, which comes only days after President Obama deflected a move to block the rule’s implementation, outlines how new representation cases will be processed from petition filing through certification.
Controversial rule. The final rule, issued on December 15, 2014, revises earlier representation case procedures in an effort to streamline and modernize union election procedures and remove unnecessary delay, according to the Board. However, the rule update was sharply criticized by opponents who say it unfairly favors unions and disadvantages employers by, among other things, shortening the amount of time it takes to get to election day. Those who favor the changes made by the rule say that it finally levels the playing field for employees who want to get to an up-down vote and removes avenues used by employers for unnecessary delay.
Congressional resolution shot down. Just last Tuesday, the president exercised his pocket veto authority to strike down a joint resolution of Congress to prevent the NLRB from implementing the rule under a provision of the Congressional Review Act.
“Workers need a strong voice in the workplace and the economy to protect and grow our Nation’s middle class,” President Obama wrote in his Memorandum of Disapproval. “Unions have played a vital role in giving workers that voice, allowing workers to organize together for higher wages, better working conditions, and the benefits and protections that most workers take for granted today. Workers deserve a level playing field that lets them freely choose to make their voices heard, and this requires fair and streamlined procedures for determining whether to have unions as their bargaining representative. Because this resolution seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard, I cannot support it.”
Battle not over. Republicans immediately criticized the president’s action and promised continued opposition to the rule. “President Obama has decided to stand with his powerful friends in Big Labor, rather than America’s workers and job creators,” said Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee. “With his veto, the president has endorsed an ambush election rule that will stifle employer free speech, cripple worker free choice, and jeopardize the privacy of working families. This fight isn’t over. Congress will continue to oppose this radical assault on workers and employers, and we will continue to demand a fair union election process.”
What does the final rule do? According to the Board, the final rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
- Eliminates or reduces unnecessary litigation, duplication, and delay;
- Adopts best practices and uniform procedures across regions;
- Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance information sharing by permitting other parties to the election to communicate with voters about the election; and
- Allows parties to consolidate all election-related appeals to the Board into a single appeals process.
But 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 characterized the rule differently. At a hearing on the joint resolution held by the House Subcommittee on Health, Employment, Labor, and Pensions, King raised these objections to the final 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 relations 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.
New time frames not established. Neither the final rule, nor the General Counsel’s memo, establishes new time frames for conducting elections or issuing decisions, according to the NLRB’s release announcing the General Counsel’s memo. All cases filed prior to April 14 will be processed under the Board’s existing rules.
Training offered. The Board said that prior to the final rule’s implementation on April 14, its 26 Regional Offices will host more than 35 training sessions nationwide for practitioners on the new procedures.
“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently,” wrote General Counsel Griffin. “I am also confident that the dedication and professionalism consistently demonstrated by the personnel in the Agency’s field offices will be exhibited in the implementation of the Board’s new representation procedures.”
Source: By Pamela Wolf, J.D.
Reposted with permission from Wolters Kluwer.
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