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NLRB Reflects on “Another Year of Excellent” Work
Annual performance review undercuts the case for ambush election scheme

Without a great deal of fanfare, National Labor Relations Board Acting General Counsel Lafe Solomon recently released a report that amounts to his annual performance review. Solomon is responsible for investigating and prosecuting violations of the National Labor Relations Act (NLRA), as well as overseeing NLRB field offices that apply the law and supervise union elections.

In a letter sent to his staff, Solomon notes that the “preliminary figures for FY 2011…reflect another year of excellent casehandling performance.” Here are some of the stats that highlight last year’s performance:

  • 1,423 “initial representation elections” were conducted to provide workers an opportunity to vote on whether to form a union;

  • 89 percent of initial elections were held pursuant to an agreement between the employer and the union – exceeding the agency’s goal of 85 percent;

  • 91.7 percent of all initial elections were conducted within 56 days – exceeding the agency’s goal of 90 percent;

  • 38 days was the median time between the filing of a petition and the election – “well below” the agency’s goal of 42 days; and

  • 33 days was the median amount of time necessary for NLRB Regional Directors to issue decisions before the election when the election was contested.

  • While this glowing report suggests the NLRB is doing its job efficiently and effectively, it does raise an important question: If the NLRB is doing an “excellent” job, are radical changes to current election rules really necessary?

In June of 2011, the Obama labor board proposed an “ambush election scheme,” which would allow an election to be held in as little as 10 days. Additionally, employers would have just seven days to raise all legal concerns, important questions that may determine how a worker votes wouldn’t be answered until after the election, and employers would be forced to turn over to union leaders even more of their employees’ personal information.

According to the Obama NLRB, these changes are necessary to “streamline” the election process. Yet, employers and union leaders agree to the terms of elections 90 percent of the time and the NLRB is exceeding expectations for scheduling elections. And perhaps more importantly to the board’s Big Labor allies, unions already win roughly 70 percent of elections. In reality, the NLRB is advancing changes to union elections to further tilt the playing field in favor of union interests by stifling an employer’s right to speak to his or her employees and crippling a worker’s free choice.

In December, the board approved several components of its ambush election scheme and NLRB Chairman Mark Pearce has expressed his intent to approve the rest of this proposal in the future. Which brings us back to our earlier question: If the NLRB is doing such an “excellent” job, are these types of draconian changes necessary? The answer is simply no.

To rein in the board and protect the nation’s workforce, the House of Representatives passed with bipartisan support the Workforce Democracy and Fairness Act (H.R. 3094). Among its many pro-worker provisions, the legislation will:

  • Ensure employers are allowed to participate in a fair union election process and communicate with their employees;
  • Guarantee workers have an opportunity to make an informed decision before casting a ballot;
  • Allow a union election to take place as soon as practicable but no earlier than 35 days from the filing of an election petition – reflecting today’s median time of 38 days; and
  • Protect the privacy of our workforce by empowering workers – not a board of unelected bureaucrats – to choose the kind of personal contact information that is provided to the union.

While the Obama labor board works to tear down a successful union election process, House Republicans will continue to stand by the nation’s workers and employers. It is time for the Democrat-led Senate and President Obama to do the same by supporting the Workforce Democracy and Fairness Act.

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