Business groups quickly denounced the move, saying it limits the time that employers have to educate workers about the impact of joining a union. The U.S. Chamber of Commerce has already filed a federal lawsuit challenging the rules.
The rules, which take effect April 30, simplify procedures and reduce legal delays that can hold up union elections after employees at a work site gather enough signatures to form a union.
“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” board chairman Mark Pearce said.
Unions say the old rules allowed companies to file frivolous appeals, stalling elections for months or years. The new rules could help unions make inroads at businesses like Target and Wal-Mart, which have successfully resisted union organizing for years.
But business groups claim the new plan allows “ambush” elections that don’t give company managers enough time to respond.
“This decision erodes employers’ free speech and due process rights and opens the door to rushed elections that will deny employees access to critical information,” said Katherine Lugar, executive vice president for public affairs at the Retail Industry leaders Association.
Most union elections currently take place 45 days to 60 days after a union gathers enough signatures to file a petition. The new rules could shorten that time by several weeks, depending on the situation.
Many employers use the time leading up to an election to talk to workers about the cost and impact of joining a union. But union officials claim the lag time is often used to pressure or intimidate workers against forming a union.
“It’s good news that the NLRB has taken this modest but important step to help ensure that workers who want to vote to form a union at their workplace get a fair opportunity to do so,” said AFL-CIO president Richard Trumka.
While union leaders publicly tried to play down the new rules as a modest development, labor experts called the change significant. Unions have seen their ranks dwindle steadily over the last three decades to 11.9 percent of the work force.
“Employers wouldn’t have fought against it so hard if it wasn’t going to make a difference,” said Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations.
One way employers can currently delay union elections is to raise questions about which workers should be included in a bargaining unit. Supervisors aren’t eligible for union membership, and the company and union can spend months litigating that issue.
Under the new rules, questions about the makeup of bargaining units are resolved after the election takes place.
“This isn’t going to change the world, but it’s one step, and we haven’t had a step towards workers’ rights in a very long time,” Bronfenbrenner said.
The rules were approved by the board’s two Democratic members. Its lone Republican, Brian Hayes, has not yet cast his vote, but he is expected to cast a dissenting opinion sometime before the rule takes effect.
Hayes is so strongly opposed to the plan that he threatened to quit the commission last month, claiming its Democratic members were ignoring longstanding procedures in their haste to finish the rules.
The final rules were scaled back from an earlier version that would have required employers to hand over to union organizers a list of employees’ e-mail addresses and phone numbers.
The board rushed to approve the new rules before the end of the year, when the term of Democratic member Craig Becker expires. The board currently has only three members instead of the usual five, and the Supreme Court has ruled that it can’t issue any decisions with less than three members in place.
Congressional Republicans have blocked President Barack Obama from filling vacant posts on the board, and lawmakers have used procedural tactics to prevent Obama from bypassing the Senate to make recess appointments.
The lawsuit filed by business groups late Tuesday claims the board circumvented its own operating procedures to finalize this rule, and that the rule itself short-circuits safeguards meant to ensure fair elections.
“The blatantly partisan purpose of this rule is to ensure that employers have no time to talk to their workers about unionizing,” said Robin Conrad, executive vice president of the U.S. Chamber of Commerce’s public policy law firm, the National Chamber Litigation Center.
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Online:
National Labor Relations Board: https://www.nlrb.gov/
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