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Labor Board Finalizes Union Election Rule

by Kevin Bogardus

The National Labor Relations Board (NLRB) announced Wednesday that it has adopted portions of its contentious union election rule.

Portions of the rule will reduce litigation on union elections by limiting testimony at regional hearings and consolidating appeals of regional director decisions into one post-election review request, the labor board said. 

The election rule is strongly opposed by business groups, and House Republicans passed legislation earlier this year to void the regulation.

The chairman of the NLRB said the rule would give workers a right to vote in a union election in “a timely manner” and cut down on “needless litigation.”

“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,” Mark Pearce, a Democrat, said in a statement.

But business groups denounced the rule as a transparent attempt by the NLRB to help unions.

“This rule has no conceivable purpose but to make it easier for unions to win elections,” Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits, said in a statement. 

“While couched in technicalities, the purpose of this regulation is to cut-off free speech rights to educate employees about the effects of unionization. The elimination of these rights has long been on the wish list of organized labor and the Board has dutifully granted that wish today.”

On Tuesday night, the Chamber and the Coalition for a Democratic Workplace sued the NLRB in the U.S. District Court for the District of Columbia to challenge the union election rule.

Unions said the NLRB made the right call in adopting the rule.

"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," AFL-CIO President Richard Trumka said in a statement.

"Many more improvements are needed to protect workers’ rights. We hope the Board will quickly move to adopt the rest of its proposed reforms to modernize and streamline the election process," Trumka said.

The rule has split the members of the labor board. Brian Hayes, the NLRB’s lone Republican member, threatened to resign over the rule, which would have shut the board down, but later decided against it.

On Nov. 30, Pearce and Board Member Craig Becker, a Democrat, voted to move forward with the rule, while Hayes voted against moving forward in a public vote.

Subsequently, the labor board had an electronic vote, which was not public, to finalize the rule. Pearce and Becker voted to finalize the rule, but Hayes has yet to cast his vote, according to an NLRB spokeswoman.

Hayes can vote against finalizing the rule and publish a statement of dissent any time before the rule takes effect on April 30, according to the spokeswoman.

The board did not finalize other portions of the rule that it proposed in June. Those provisions included setting a pre-election hearing seven days after a union election petition is filed and sharing workers’ email addresses and personal phone numbers with union organizers. The NLRB says it still plans to consider those portions of the rule at a later date.

The final rule will be published in the Federal Register on Thursday.

The NLRB had to move quickly to get the union election rule on the books. Becker’s recess appointment ends at the close of this year. When he departs, it will bring the NLRB down from three members to two — not enough to form a quorum to issue rules and regulations.

Last week, President Obama nominated two new members, Sharon Block and Richard Griffin, to the NLRB.

Their nominations are not expected to move in the Senate, and all 47 GOP senators signed a letter to Obama earlier this week requesting he not recess-appoint Block and Griffin to the labor board.