Lobbying not to change the rules
Issues for exploration
One of the principal points made by those testifying and commenting against the rules was that the changes were not necessary. Opponents said, for example, that the median number of days between the filing of a petition and the holding of an election is 38, well within the NLRB’s target range.
But does that figure divert attention from more relevant data? Retired NLRB examiner Michael Pearson pointed out in his comments that the 38-day median time between petition and election is “misleading.” The more pertinent subset of elections to analyze, Pearson said, were those that took place pursuant to NLRB direction where employers and unions disagreed over matters like the makeup of the bargaining unit and the timing of the election. The median for those elections, he continued, ranged over time from 58 to 70 days. And the fact that most elections may occur within a reasonable period does not change the fact that some vigorous anti-union campaigns result in delays in the process that can drag on for months and years.
At the hearing, unions pointed to several instances of long delays that workers faced when seeking to hold an election to unionize. For example, some employers were said to seek out extension after extension on hearings that covered only frivolous objections. One employer was said to have drawn out hearings and litigation for three months over the eligibility of a single person in a unit. In perhaps the most extreme example, the Service Employees International Union brought a worker to testify that she and her coworkers had waited 13 years since the filing of their petition for a unionization election.
Remapping Debate found further examples, too (see two illustrations on page three). Yet opponents of the rules appear to ignore this subset of NLRB cases, instead choosing to focus attention on the fact that most elections take place relatively quickly. They should be asked to confirm that there is indeed a subset of cases where long delays do occur and to justify why those extensive delays should continue to be permitted.
As is commonly the case, associations and law firms that primarily represent large businesses asserted that the rules would harm small businesses. The claim was that small businesses would have neither the time, nor the resources, nor the expertise to respond to an abbreviated process. Unions, when asked, pointed out that small businesses are not typically the targets of unionization and asserted that those employers who are unrepresented will be solicited by management attorneys who regularly scrutinize NLRB’s docket to find potential clients.
The extent to which opponents’ professed concern for small businesses is genuine needs to be examined. Likewise, opponents should be asked whether they concede the accuracy of the union assertion that the unionizations campaigns today are overwhelmingly focused on larger businesses. Finally, opponents should be asked why issues about the shape of an election to certify a union would be either complicated or difficult to navigate in the context of a small shop.
Those favoring the rules should be asked to respond directly to the issue of what occurs in the circumstance, however unusual, where it is the workers of a smaller business that a union seeks to organize. In those cases, does an expedited process unfairly disadvantage the small employer?
Another focus of employer comment was that all employers — including large employers — would be unfairly disadvantaged by what was characterized as the requirement under the proposed rules that employers fully set forth their position, including all of their objections, before a pre-election hearing begins. This aspect of the rule — which applies to information already available at the time of the statement of position — is clearly designed to press parties to put all their cards on the table. The NLRB says that the purpose of the provision is to facilitate the ability of its regional offices to weed out frivolous objections early in the process. Under the rules, requests for reviews of regional decisions would be deferred until after an election took place.
Notwithstanding employer complaints that the rules would preclude them from objecting to problems that emerge after the statement of position has been filed, the rules still do allow employers or unions to challenge the results of an election or regional-level decision after an election takes place but before a union is certified. Moreover, a union would not be certified if the NLRB ultimately found that an employer’s objections were meritorious. Aren’t the real objections that a consummated election (a) leaves a company with less room to erode support for the union over time, and (b) takes an employer’s objections from the realm of the abstract to a concrete matter of whether there are substantial reasons to ignore what on its face is the democratic voice of a majority of workers who have literally cast ballots?