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Labor Relations Insight

by Phil Wilson

Three Things Congress Can Do to Fix Labor Law Today

It’s been another month and we remain not one step closer to a Republican majority National Labor Relations Board. I suppose you could say the Administration took a quarter-step when it announced this week its “intention to nominate” Marvin Kaplan to the Board. That’s a quarter-step in the right direction, but a better step would be officially nominating both Kaplan and Bill Emmanuel, so that the Senate can start the process of getting them confirmed.

Due to the congressional calendar (and the likelihood Democrats will be playing the four-corners offense the next two years) it’s all but certain that the we won’t have a Republican majority before the August recess. And there is no guarantee that Phil Miscimarra will continue on as Chair when his term expires in December. If things don’t move quick we could very well be stuck with a 2-2 tie until sometime in 2018. And 2018 will be consumed with the mid-term elections. I’m beginning to worry whether a full Republican Board and General Counsel will be in place before 2019. Seriously.

Luckily not everyone in Washington is sitting still. A number of solid proposals are moving in the House. As long as it continues to take 60 votes to pass legislation in the Senate these proposals aren’t likely to become law. But the filibuster rule isn’t on the most solid of footing. So there is at least some chance for labor law reform. And a legislative solution is much more solid than the “on again, off again” labor policies adopted through agency decisions and rulemaking.

Three proposals got hearings recently and deserve your consideration (and more important the consideration of your Representatives and Senators). First, is the Employee Rights Act (HR2723). The most important requirement of this legislation is that unions can only gain representation rights with a secret-ballot election. This is a very valuable rule that eliminates the main goal of most anti-corporate campaign activity and ensures employees aren’t denied the right to vote on whether they wish to be represented by a union. In addition this legislation requires that elections be decided based on all eligible bargaining unit employees (not just a majority of those who vote in an election). These two provisions ensure that unions are only brought into a company based on the support of an un-coerced majority of workers in a represented unit.

Another important provision of the Employee Rights Act is the requirement that new secret-ballot elections be held in any units where more than 50 percent of employees are new since the last union vote. I would make this change voluntary (i.e. at the request of an employee in the bargaining unit) and include a safe-harbor provision for unfunded pension liability. But the idea that unions must enjoy majority support from the people they actually represent today makes total sense.

Another great proposal is the Employee Privacy Act (HR2775). This is one response to the ambush election rule (the other is below) and helps ensure that employers only turn over information to unions that is approved in advance by employees. The ambush rule-making (which seems to get worse every week as the Board interprets what it means) requires employers to turn over any “available” contact information for employees, even if employees don’t wish to have their private contact information disclosed. This legislation lets employees select one form of contact information they wish to be turned over.

Those two proposals are great, but they don’t do anything to deal with the “ambush” part of the new election rules. The Workforce Democracy and Fairness Act (HR2776) fixes that by requiring all elections to have a minimum 35-day campaign period. This is dramatically shorter than in any other important election in America, but a heck of a lot better than the current two to three week (if you’re lucky) campaign period. Student council election campaigns are longer than union elections these days, and that should change. HR2776 also makes sure that bargaining units share a community of interest, versus the fractured units allowed under the NLRB’s Specialty Healthcare line of decisions.

These proposals won’t fix everything that’s wrong with our labor laws. And they aren’t perfect (I know employers who don’t like aspects of each bill). But each of these proposals is a step in the right direction. And a much more solid step than waiting for a Republican-majority NLRB to get seated and then trudge through a complicated rule-making or decision process that will just be reversed the next time Democrats regain a Board majority.

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