WASHINGTON — The National Labor Relations Board will sort through more than 5,000 comments — including last week's testimony from food retailers and unionized food workers — as it considers enacting controversial changes to federal union election procedures.
The National Grocers Association was among the groups testifying before the NLRB last week during public hearings on the proposed changes, designed to streamline the union election process. Jay P. Krupin, a labor law attorney representing the NGA, denounced the proposals as “blatantly pro-labor” and raised questions as to the appropriateness of the board, rather than Congress, making changes to labor law. Krupin's testimony reflected the views of many business leaders concerned that changes would create an unfair playing field.
A written comment period continues until Aug. 22, followed by a two-week period allowing responses to comments. The board at that point would consider substantive commentary in crafting a final draft, according to Nancy Cleeland, a spokeswoman for the NLRB.
Krupin, who represents NGA with the law firm of Epstein Becker & Green here, told SN in an interview last week that it was possible the NLRB would adopt the new rules as soon as this September, but said he was hopeful issues raised during the hearings would be a “stepping stone” toward what he called more balanced labor reform.
“They can issue a rule in September, but that would be ramrodding it down the throats of business and wouldn't be looked too kindly upon. There'd be significant litigation,” Krupin predicted.
Any scenario is likely to be complicated by the makeup of the NLRB itself, sources noted. Chairman Wilma B. Leibman's term is scheduled to end in August. In addition, one board member, Craig Becker, was a so-called recess appointee by President Obama and as a result has not been confirmed by Congress. His term is to end later this year. Another appointee, Terrence Flynn, is awaiting Congressional approval and has not yet joined the board officially.
More than 50 speakers representing a wide range of industries and trades testified during two days of public hearings on the changes, which were proposed by the board last month. The proposed revisions to existing rules would shorten the time period between the filing of an election petition and the actual election by removing what the NLRB called “unnecessary delays” stemming from “old-fashioned communication technologies” and “haphazard case-processing,” as allowed by existing rules. NGA estimated the changes would give employers from 10 to 21 days to respond to a union campaign, as compared to around 42 under current rules.
“Under such a system, employees will be rushed into making a decision without the benefit of the opportunity to receive and digest information, contemplate the consequence of their ballot and review and question information,” Krupin argued before the board. “It cannot be maintained that less information before voting is a laudable goal.”
Labor representatives argued that the changes to lengthy delays were necessary — and presented some research indicating that employer violations of labor laws frequently occur before unions petition for a vote.
“Workers know their employers' views on unionization. And if workers are unclear about their employers' position, it doesn't take long for them to find out,” Pat O'Neill, organizing director of the United Food and Commercial Workers, said during testimony. “Nor will this rule change lead to ambush elections, as claimed by employer-funded lawyers. Almost all union election campaigns are well under way and well known to employers long before an election petition is filed.”
Krupin likened the hearings to the debt-ceiling debate taking place across town last week, saying the opposing sides would likely need to work together.
“It is instructive that one side in the long-running labor-management struggles is thrilled with the proposals while the other is threatened,” Krupin said. “In order to carry the perception of legitimacy, the ground rules of the game must be fair. They must not have the whiff of biased motivation behind them. That is not the case here.”