NLRB Issues Final ‘Ambush Election’ Rule; Employer Groups File Suit

The National Labor Relations Board lately appears to believe that if an aspect of labor law isn’t broke, fix it anyway. Unions certainly are comfortable with that. On December 15, the NLRB published a final rule that would dramatically shorten the duration between a union’s filing of a petition to represent workers and the holding of a vote. This ‘ambush’ or ‘quickie’ election rule, under the guise of promoting fairness and efficiency, would throw roadblocks in front of an employer seeking to respond to union organizer arguments. The board issued its preliminary rule last February after a Washington, D.C. federal court in May 2012 had struck down a similar mandate on procedural grounds. Last Monday, January 5, a coalition of trade groups filed suit to block the rule, set to take effect on April 14. As before, at stake is the right of workers to choose whether to belong to a union.

Union officials understandably have been clamoring for this rule for some time. As maximizing membership and bargaining clout is in their interests, one way to achieve that is minimizing opportunities for employer opposition to organizing campaigns. All things held equal, the shorter a campaign, the less able an employer will be to make a case to employees about the drawbacks of unionization. Smaller businesses in particular lack the resources to mount an effective challenge. While the National Labor Relations Act prohibits employer interference with a campaign, it does not impose a code of silence on the employer. Employers may not retaliate against workers who support union representation, but they can explain their own position, whether verbally or in writing. It’s a reasonable arrangement. Union organizing, by its nature, is not impartial. Organizers can be expected to emphasize the advantages of membership, not the disadvantages. Employers can be expected to focus on the disadvantages. It’s the job of the Congress and the NLRB to set the boundaries of debate and decision-making, including those relating to campaign duration.

As Union Corruption Update has explained before, labor officials have every reason to limit the possibilities for opposing representation campaigns. Less than 7 percent of the private-sector U.S. work force is now unionized, down from more than 30 percent during the late-1950s and early-60s. Union officials are committed to reversing this trend by any legal means necessary. A friendly National Labor Relations Board is an asset here. And the NLRB, now once again at full strength, is union-friendly. As is longstanding custom, three of the board’s five appointees belong to the political party in power; the other two appointees belong to the party in opposition. Having Barack Obama, a Democrat, in the White House thus insures that the pro-union faction has a 3-2 majority.

Apropos the ‘quickie election’ rule, we’ve been down this road before. Back in June 2011, the NLRB proposed reducing the window of opportunity to express opposition to a union organizing campaign from 42 days to between 14 and 21 days, and in certain instances, only 10 days. The rule would force an employer to hold pre-election hearings no later than seven days after the filing of an election petition. It also would reduce from seven to two days the maximum time by which an employer must provide an electronic list of potential voters. The proposal triggered an avalanche of comments, pro and con – more than 65,000 in all. That December, the board approved the final rule, which would go into effect April 30, 2012. But that May 14, with the rule in effect for only two weeks, U.S. District Judge James Boasberg, responding to a lawsuit filed by several business groups, struck it down. The rule, he concluded, had been developed by only two members of the board. As such, the adoption of the measure lacked a proper quorum. Suspending the regulation indefinitely, Boasberg declared: “Representative elections will have to continue under the old procedures.”

But the issue hardly was a dead letter. It only was a matter of time before the NLRB, which was brought back to five-member full strength in the summer of 2013, would reintroduce the rule. And on February 5, 2014 it did just that. Unions, as before, argued that the rule would break the election process logjam. But that claim remains suspect. Nearly 95 percent of all union elections typically are conducted within two months of announcement, with the median campaign duration lasting 38 days. And unions have won more than two-thirds of the time. The new final rule, for all intents and purposes a copy of the earlier version, would ease the way for union election victories. The regulation, among other things:

Requires a pre-election hearing within eight days of an election petition.

Forces an employer to submit a Statement of Position within seven days of receiving the petition. Any issue omitted from the statement would be ineligible for use by the employer at a representation hearing.

Limits issues and evidence that an employer may present at a pre-election hearing.

Eliminates an employer’s ability to appeal pre-election decisions to the NLRB regional director.

Eliminates the current 25-day grace period between the end of a hearing and the holding of an election, making it highly difficult for skeptical workers to get a balanced view of union representation.

Requires an employer to give union organizers personal information about workers, such as home addresses, telephone numbers, e-mail addresses, shift schedules and work stations.

This isn’t called the “ambush election” rule for nothing. Under the pretext of reducing delays, it would grant unions a virtual license to muzzle worksite opponents. Last year, following introduction, AFL-CIO President Richard Trumka glowed: “We applaud the National Labor Relations Board for proposing these commonsense rules to reduce delay in the NLRB election process.” By contrast, Doreen Davis, a labor and employment lawyer with the New York firm of Jones Day, offered this critique before Congress: “The NLRB’s proposed rule changes are in excess of the board’s rulemaking authority, are substantively unnecessary, and are contrary to the [National Labor relations Act]. Moreover, the proposed rules evidence poor policy and are likely to exacerbate, rather than alleviate, labor tension between employers and employees.”

The rule once again has been finalized. And once again, it has wound up on the docket of the U.S. District Court for the District of Columbia. On January 5, five business groups – the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management – sued the NLRB, arguing that the final rule violates the First and Fifth Amendments to the Constitution and exceeds the board’s statutory authority. The suit, like the previous one, asks the court to vacate and set aside the rule. The plaintiffs bought some extra time two years ago when the court ruled that the NLRB lacked a quorum. This time around, the outcome will hinge on substantive grounds.

Should the NLRB prevail, opponents still would have an opportunity to challenge via the legislative branch. Back in 2011 and again in 2014 House Education and the Workforce Committee Chairman John Kline, R-Minn., sponsored the Workforce Democracy and Fairness Act. The bill contained several provisions to ensure adequate time for an employer to respond to a union to raise concerns over a particular union campaign. Among other things, the measure would have provided an employer with at least 14 days to prepare a case for presentation to an NLRB election officer. The first time around, the full House passed the measure by 235-188 but the Senate took no action. The second time around, the bill was reported out of committee but went no further. Another bill, the Employment Privacy Protection Act, introduced last year by Rep. Phil Roe, R-Tenn., would guard the right of employees at nonunion sites to choose the way they wish to communicate with union organizers during the election process. In practical terms, this means a guarantee against surprise home visits, phone calls or e-mail from organizers.

As the quickie election rule contains much in the way of minutiae, it is crucial not to lose sight of the larger issue. Congress in 1935 established the National Labor Relations Act to make the workplace more into a microcosm of political democracy. The law sought to place employers and unions on a level playing field when stating their respective cases before workers. In this manner, workers would have ample opportunity to make up their own minds about whether to join or remain. The system, for all its flaws, has worked well. Unions understandably want to improve their chances of winning representation elections. Yet they shouldn’t be able to enlist the National Labor Relations Board as a de facto partner, effectively rigging the process. The regulation represents a radical departure from 80 years of precedent. Employers and independent-minded workers alike have good reason to be suspicious.