Confirming the business community's worst fears, the National Labor Relations Board (NLRB) and the Department of Labor (DoL) are once again using the rulemaking process to circumvent Congress to implement big labor's policy priorities.
Last week, the NLRB issued a notice of proposed rulemaking (NPRM) in an effort to alter existing regulations to speed up unionization elections. The proposed rule will reduce the amount of time employees and employers may communicate prior to the election and limit the opportunity for full hearings on key issues such as voter eligibility, appropriateness of the unit, and election misconduct. Most union elections take place within two months of a filed petition. The NPRM would shorten the timeframe to as little as two weeks.
"The NLRB and Department of Labor's recent action is the latest attempt to implement the spirit of the Employee Free Choice Act through the rulemaking process," said AED President & CEO Toby Mack. "These regulations would further tip the scale in favor of unionization at the expense of employers and employees across the country."
In his dissent to the NPRM, Board Member Brian Hayes summarized the Board's action stating, "The principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."
Additionally, the DoL proposed changes for what constitutes "persuader activity" for reporting under the Labor Management Reporting and Disclosure Act (LMRDA). The DOL proposes to broaden the scope of reportable activities by substantially narrowing its interpretation of the "advice exemption" of the LMRDA. The new rules will deter businesses from seeking outside counsel when presented with a union organizing drive out of fear that even that conversation may trigger disclosure of detailed information about the company's employees and finances – information that will become public.
The public may comment on the proposed rules within 60 days of their June 22 publication in the Federal Register. Click here for the NLRB's summary of proposed changes.