Speeding Labor Elections Unfair to Companies, Employers Say

Speeding labor elections would deny companies a fair chance of persuading workers to reject organized representation, employers are telling U.S. regulators.

The National Labor Relations Board, which investigates unfair-labor practices, is considering adoption of steps sought by unions that would lead to quicker votes. More than 60 speakers are scheduled to testify before the board on the proposed rule today and tomorrow.

“I assure you, we all have open minds,” NLRB Chairman Wilma Liebman said today as the hearing began.

Faster elections would be a win for labor, which has lost fights this year to stop Republican governors from curbing public-employee unions in states such as Wisconsin and Ohio. Speakers include representatives from about 14 unions, 10 businesses or business groups, and academics. Law-firm consultants who help companies block unions also testified.

“Quickie elections quite simply can create an ill-informed electorate by not providing a reasonable time for all employees to hear the other side of the story,” from companies, said Arnold E. Perl, a lawyer with Memphis, Tennessee-based Glankler Brown PLLC who is representing the Tennessee Chamber of Commerce.

The changes would be “modest and incremental,” said Amy Bachelder, with Sachs Waldman PC in Detroit, a law firm that works for unions. “Delay is often used as a tactic in a union election,” she said.

Depriving Employers

The proposal is “designed to deprive employers of representation,” Charles Cohen, an attorney at Morgan Lewis and Bockius LLP, said in prepared testimony. He represents the Washington-based Coalition for a Democratic Workplace, which calls itself an alliance of workers and employers opposed to federal legislation making unionization easier,

Union votes should be streamlined because “every additional day of delay before a representation election provides another opportunity for employers to manipulate the system and cause controversies that can take years to litigate,” Veronica Tench, a member of the Service Employees International Union, said in her prepared testimony.

The rule would have a “significant adverse impact” on businesses, resulting in votes being cast before employers started to craft a defense, said Peter Kirsanow, a partner at Benesch, Friedlander, Coplan & Aronoff LLP in Cleveland, representing the National Association of Manufacturers.

‘Wants to Say’

“An election would be carried out even before an employer figures out what it wants to say,” said Kirsanow, who served on the NLRB from 2006 to 2008.

The proposal is opposed by the U.S. Chamber of Commerce, the largest U.S. business lobbying group, which says it’s a sign the NLRB has adopted an activist agenda favoring unions at the expense of companies since President Barack Obama’s appointees have gained a majority on the board.

Among changes proposed by the NLRB are letting unions file petitions electronically, deferring “litigation of most voter eligibility issues until after the election” and consolidating appeals to the board “into a single post-election appeals process,” according to a statement from the agency.

The median time for a union election is now 38 days from petition to the vote, according to the NLRB.

The proposed rule will force elections “in 10 to 21 days after the filing” of a petition to unionize, according to a dissent written by Brian Hayes, the NLRB’s only Republican member. The board voted 3-1 to issue the proposal.

‘Patently Unfair’

Deadlines that tight would be “patently unfair” because workers may be told falsehoods in an organizing drive, Brett McMahon, vice president for business development at Bethesda, Maryland-based Miller & Long Co., said in prepared testimony. Employers should have adequate time to provide a full picture, he said.

“It takes away the opportunity of workers to be educated on both sides, which is what the board should be upholding,” he said.

Faster elections would still give employers time to make their case, said Kimberly Freeman Brown, executive director of the American Rights at Work, a Washington group that advocates for unionization, in her prepared testimony.

Workers “encounter significant obstacles in the form of needless bureaucratic delays and costly taxpayer-funded litigation,” she said. “It can take months and even years before they get to cast a vote.”

The NLRB conducted 1,633 union-representation elections in the year ended Sept. 30, 2009, the most recent period posted on the agency’s website. Of cases closed in the period, employees chose to join a union in 64 percent of the votes.

The rule would require employers to give union organizers access to workers e-mail addresses, which may be a privacy violation, said Ronald J. Holland, a partner at Sheppard, Mullin, Richter & Hampton LLP in San Francisco, which represents companies.

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