NLRB Rule Would Burden Employers with Fast-Track Union Elections

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Trumka photoUnion leaders, frustrated over their inability to sway Congress, more than ever are relying upon the National Labor Relations Board to enact stealth legislation. The board, now with a Democratic majority, seems willing to oblige them. Case in point: an NLRB proposal announced last Tuesday, June 21, and published in the Federal Register the next day, to substantially reduce the duration of election campaigns for union representation. While the board touts the regulation as an overdue streamlining of an inefficient system, its covert motive, say critics, is to hamstring employer opposition. That's because such campaigns typically begin months in advance of the employer's knowledge. Among those critics, fittingly, are two former board members and a current one. 

Private-sector union membership has been declining for decades. Last year, a mere 6.9 percent of the non-governmental work force belonged, noted the Bureau of Labor Statistics. That's down from nearly a third during the late Fifties and early Sixties. Union officials are doing everything within the realm of possibility to reverse the trend. The most potent element in their arsenal is the Employee Free Choice Act (EFCA), whose "card check" feature would mandate an employer's recognition of a union as a sole collective bargaining agent if the union secures signatures indicating a willingness to join by more than half of all affected workers. Such legislation would allow unions to bypass the NLRB-supervised election process. Thanks to Senate Republican filibuster (or the threat of one), Congress has yet to enact EFCA. And with a Republican majority in the House and an even more filibuster-ready minority in the Senate, unions are less likely to make headway.

Enter the National Labor Relations Board, whose five members serve staggered five-year terms. By political custom, the NLRB at full strength has three members of one major party and two of the other. With Barack Obama as president, the full board has a 3-2 natural Democratic majority, which is to say a natural pro-union majority. The board is currently Democrat by a 3-1 margin. Each Democrat - Chairman Wilma Liebman, Craig Becker and Mark Gaston Pearce - has extensive experience as a union lawyer. Even if the Senate approves Terence Flynn, the pro forma Republican nominee for the current vacancy, the board generally can be relied upon to favor union interests in both dispute resolution and regulation. This gives unions opportunities to do things beyond possibility under a Republican administration.

The proposed NLRB rule would drastically shorten the period between the filing of a petition for a worker-representation election and the holding of that election. Currently, the standard time elapse is 42 days. As an employer usually doesn't become aware of an organizing campaign and its gathering of requisite signatures until the filing date, he will use this six-week period to explain the company position to employees. The new regulation would reduce this elapse to 10-20 days, making it highly difficult for an employer to assess the situation and develop an effective case against unionization. The rule also would force an employer to "set pre-election hearings to begin 7 days after a petition is filed" and would "reduce from 7 to 2 days the time for an employer to provide an electronic list of eligible voters," the latter an especially effective way of enacting forced card-check recognition through the back door. This regulation is even more tilted toward unions than a similar proposal the NLRB issued in February 2008 but never finalized.

The NLRB justifies its rule change as a way to promote efficiency. The proposal allegedly would discourage unnecessary litigation; streamline pre- and post-election procedures; and enable greater use of electronic communications. AFL-CIO President Richard Trumka, endorses this view, calling the proposal "a commonsense approach to clean up an outdated system." Yet the underlying reality appears quite different.

Understand, first, that union organizers are anything but impartial in pitching their case to unorganized workers. They are going to explain the pros, and never the cons, of membership. They are trained to do this. Understand as well, and related to the first point, unions usually win representation elections. In 2009 and 2010, they won about two-thirds of the time, excluding cases in which a union withdrew its election petition prior to balloting. Labor officials would like to raise this figure to as close to 100 percent as possible. A drastically shortened election campaign can do this by minimizing employer resistance. Peter Kirsanow, a Cleveland-based Republican lawyer who served on the National Labor Relations Board as a recess appointee (January 2006-January 2008) and now sits on the U.S. Civil Rights Commission, explains the self-fulfilling prophecy:

The "quickie election" rules proposed by the NLRB will shorten the time frame to a mere 10-20 days. Make absolutely no mistake: That's not enough time for even the largest and most sophisticated employers to counter what the union has been telling employees while organizing them for the last 6-8 months. The union win rate will far exceed 68 percent. In fact, it's likely that many employers will choose to not even go through the expense of an election that he's sure to lose, but will simply voluntarily recognize the union upon a showing of authorization cards.

In other words, unions can point to the alleged overwhelming desire for representation by would-be rank and file by restricting the availability of information representing the employer's view.

Kirsanow isn't the only former NLRB member to voice objections to the proposed rule change. Peter Schaumber, a Republican who served on the board from December 2002 until the expiration of his term last August, remarks, "Imagine a political election in which only one party were given the opportunity to tell voters its side of the story, and could set an election to make it easier to unionize." The board's lone current Republican, Brian Hayes, also has some pungent words for the regulation. "(T)he principal purpose for this radical manipulation of our election process," he writes, "is to minimize or, rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

Union leaders, by contrast, have no problem with the NLRB proposal. If anything, they see it as not going far enough. The AFL-CIO's Trumka, called the rule a "modest" step in the right direction, adding that it doesn't address "many of the fundamental problems with our labor laws." With trademark bluster, he then denounced the "poisonous political environment" that is the creation of "politicians and ideologues opposed to any protection of workers' rights." He continued:

Whether you're a teacher, firefighter or nurse's aide - right-wing legislators and their corporate funders have made it clear that their ultimate aim is to take away worker's rights on the job. We call on leaders on both sides of the aisle to defend the independence of the NLRB. Political interference with any independent agency sets a dangerous precedent that should not be tolerated.

In the same vein, Service Employees International Union President Mary Kay Henry stated, "At a time when corporations have lawyers and lobbyists speaking for them on Capitol Hill, it's a good thing when a federal agency wants to allow working people to have a say."

One doesn't have to be an "ideologue," however, to recognize there is something wrong with the NLRB regulation. The idea that employers have to go along with an election campaign (and by extension, a particular result), with as little dissent or debate as possible, speaks of a certain contempt labor officials have for the democratic process they profess to uphold. Workers have a legally protected right to form or join a union. At the same time, the choice is not for them to force upon others. Three members of the NLRB apparently believe otherwise. The public has a 60-day period to make written comments to the board on this rule.

Related:

Will NLRB Create Stealth Pro-Union Legislation?

NLRB Opens Door to Stealth Card Check Despite Becker's Conflict of Interest

NLRB Issues Proposal to Allow Quickie Union Elections

Seven Unions Petition NLRB to Mandate Minority Bargaining