NLRB Rule Provokes Firestorm

The U.S. Chamber of Commerce and other employer groups fiercely oppose what they call an "ambush elections" rule.

The National Labor Relations Board's decision to issue a final rule speeding the process of holding an election about union representation in workplaces is being fiercely opposed by the U.S. Chamber of Commerce and other employer groups, who have been condemning it as an "ambush elections" rule for several weeks by now.

NLRB said the rule will "reduce unnecessary litigation and delays." It was published in the Federal Register on Dec. 22 and will take effect April 30, 2012 -- except lawsuits are sure to delay its implementation.

Congressional action could halt it permanently, as well. U.S. Senator Mike Enzi, R-Wyo., ranking member on the Senate Health, Education, Labor and Pensions Committee, said Dec. 21 he will use the Congressional Review Act to challenge the rule, which Enzi contends was hurriedly issued so the rule could be implemented before the end of 2011. The board may lack a quorum and be unable to act when 2012 begins. The Congressional Review Act is the method that was used to repeal OSHA's ergonomics standard early in President George W. Bush's first term.

"This gift to union bosses is nothing more than a lump of coal for America's job creators," Enzi said. "The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using back-door political maneuvers to boost anemic union memberships and smother our nation's struggling economy, this administration should help America regain its strong financial footing."

The act allows either the Senate or the House of Representatives to introduce a joint resolution of disapproval that can block a federal agency from implementing a recent rule or regulation. A resolution of disapproval introduced under the act cannot be filibustered and can be passed with a simple majority in the Senate if acted upon during a 60-day window.

The labor board majority claims it is a rule to make election administration more efficient. "The rule is primarily focused on procedures followed by the NLRB in the minority of cases in which parties can't agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB regional director decides the question and sets the election," the board's news release about the rule states. "Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs. Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process. In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections."

The board divided along partisan lines. Chairman Mark Gaston Pearce and board member Craig Becker voted in favor of the rule, while board member Brian Hayes voted against proceeding with publication of the rule last month. The release said the final rule affords "the opportunity for publication of a separate dissenting statement prior to the effective date of the rule."

"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," Pearce said. The release says more than 65,000 comments were submitted about the proposed rule.

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