National Labor Relations Board to vote on proposed changes in union rules

November 28, 2011

The Memphis Commercial Appeal

By Bartholomew Sullivan

WASHINGTON -- The National Labor Relations Board is scheduled to vote next week on union representation election rules that a Memphis attorney said should be "much better for management" than those proposed this summer.

Memphis lawyer Arnold E. Perl, representing the Tennessee Chamber of Commerce and Industry, was the lead-off witness in two days of hearings on the proposed rule changes in July, and urged the board not to adopt them.

Perl said he liked the idea of a more limited proposal, designed to minimize unnecessary litigation.

"We'll see what they vote on," he said. But he predicted "this is going to be much better for management; there's no doubt about it."

The original rules changes would speed up union elections and therefore shorten the time available for employers to make their case against organizing.

Republicans opposing the rule change and some employer groups say the expedited procedure would set up "ambush elections." The only Republican on the currently three-member board, Brian E. Hayes, has reportedly threatened to resign over board chairman Mark G. Pearce's scheduled vote, set for Wednesday.

Perl testified in July that Tennessee's Chamber had a "natural interest" in the proposed changes because the state's union membership in the private sector has been reduced to just 2.2 percent, the second lowest in the country.

He also argued that a delaying tactic used by unions is the claim of an unfair labor practice once a union election is scheduled in an effort to manipulate the timing of an election it would likely lose.

One proposed NLRB rule would limit the use of pre-election hearings, called when the composition of a bargaining unit is at issue, to disputes involving 20 percent or more of a unit's prospective membership. Perl called that provision "ill-advised."

Besides Perl's oral testimony, 65 other witnesses addressed the board, and it received an additional 65,957 written comments.

Behind the scenes, the proposed vote has produced something of a power struggle. The five-member board currently has only three members, two Democrats and one Republican. If action isn't taken before Congress adjourns, the term of Democratic member Craig Becker, a former lawyer for the AFL-CIO and the Service Employees International Union, will expire.

Becker reached the board through a recess appointment by President Barack Obama when the Senate declined to confirm his nomination. His nomination was opposed by the U.S. Chamber of Commerce and the National Association of Manufacturers, among others. Conservative Democrats, among them Arkansas' Blanche Lincoln, voted against it.

The Supreme Court has ruled that the board can't take action with only two voting members. If it takes place, Wednesday's vote is likely to be 2-1 in favor of the changes sought by labor.

On the day the board scheduled Wednesday's vote, Hayes, the Republican member, sent a letter to the chairman of the House Committee on Education and the Workforce, John Kline, R-Minn., complaining that the "opaque, exclusionary and adversarial" rulemaking process appeared destined to go forward to a vote.

Hayes noted in his letter that he believed the NLRB's response to the committee's Oct. 27 inquiries about the rulemaking process had not been fully responsive.

Kline said the letter raised questions about the board's compliance with the committee's oversight efforts. He said the scheduled vote showed that the "Obama NLRB is determined to impose a flawed rule," adding, "it is disturbingly clear that the board's only concern is advancing an extreme agenda."

Witnesses at the July hearing said unions petition for elections when they feel they have the votes sufficient to win and would therefore benefit by the expedited procedure. One union witness said faster elections would shorten the period of anti-union "brow-beating" engaged in by some employers.

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