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.
A fair election campaign operates on the principle of a "level playing field" - while neither side is guaranteed victory, each should have an equal opportunity to state its case. The National Labor Relations Board has an unusual interpretation. On February 5, the NLRB reissued a rule that would curtail the ability of nonunion employers and employees to oppose union organizing drives. This 'quickie' or 'ambush' election rule, is a near rewrite of its 2011 rule change that briefly made it onto the books before being struck down on procedural grounds by a federal court in May 2012. Here, as before, the allowable time frame for opponents of a union drive to express their views would be reduced from 42 days to as few as 10 days.
Thomas Perez is the nation's newest Secretary of Labor. And given his track record of political radicalism, this ought to be more than a little troubling. Perez insists he will be even-handed in his enforcement of the law. That commitment is getting an early test. On July 23, the day of Perez's swearing-in ceremony, two key House Republicans, John Kline (Minn.) and Phil Roe (Tenn.), wrote Perez a letter asking him to clarify the legal status of nonprofit 'worker centers' that are proliferating throughout the country. Because these nonunion organizations mimic the behavior of unions, the letter stated, they ought to be subject to laws that govern unions, especially with respect to financial disclosure.
The National Labor Relations Board, strictly speaking, should have shut down nearly five months ago. But it has kept on going anyway. And even if President Obama's slate of five nominees takes office, the issues surrounding its legal limbo almost certainly will continue onward to the Supreme Court. On May 22, the Senate Labor Committee approved all five and sent their names in one package for a full floor Senate vote. In February the president had re-nominated two members, Sharon Block and Richard Griffin, both of whose recess appointments were declared unconstitutional on January 25 by a federal appeals court.
If the Democratic-majority National Labor Relations Board (NLRB) under the Obama administration has become a de facto union law firm, then its proposed rule mandating "fast-track" or "ambush" elections loomed as its crowning achievement. Two days ago, on Tuesday, December 20, that proposal became final. By a 2-to-1 margin, the board approved a regulation it had unveiled this June ostensibly to speed up union representation election campaigns and avoid frivolous litigation.
For organized labor, the National Labor Relations Board (NLRB) during the Obama years has become a de facto legislative body, issuing rules and rulings to give unions extra advantages in organizing and bargaining that Congress won't enact. Not surprisingly, union officials are dismayed over a vote in Congress last week to block a proposed NLRB regulation to shorten the time frame for holding representation elections and a board ruling expanding the leeway for forming workplace "micro-unions." Last Wednesday, on November 30, the House of Representatives by 235-188 passed the Workforce Democracy and Fairness Act (H.R. 3094), which, among other things, would counteract a "quickie" or "ambush" election rule unveiled by the NLRB in mid-year. Meanwhile, the Senate has come out with a similar bill focusing on the micro-union issue.