NLRB Approves Pro-Union "Ambush Election" Final Rule

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NLRB logoIf 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. The ulterior motive, however, appears to be to prevent employers from mounting an effective challenge to union organizing. The rule is set to take effect on April 30. But opponents aren't wasting time. The House of Representatives on November 30 passed a bill to undo the rule. And the U.S. Chamber of Commerce, only hours after the board vote, filed suit in federal court to block its enforcement. 

National Legal and Policy Center covered this issue in June. It did so again, two weeks ago, in the wake of approval by the House of Representatives of a bill to undo the NLRB rule. Lawmakers, led by Rep. John Kline, R-Minn., by 235-188, had passed the Workforce Democracy and Fairness Act (H.R. 3094), whose main feature is to give nonunion employers and dissenting workers adequate opportunity to hear both sides of a debate over whether to unionize. The measure would: 1) allow employers at least 14 days to prepare a case for presentation before an NLRB election officer and an opportunity to raise additional concerns throughout the hearing; 2) require a union election to be held with at least 35 days' advance notice; and 3) bar the board from issuing a rule to require companies to give out employee home addresses and e-mail addresses to union organizers.

All this was in response to the original proposal pitched by the National Labor Relations Board on June 21. The board, then with a 3-1 Democrat-to-Republican majority, saw the typical 42-day period between a union filing a petition for representation at a given worksite and the subsequent election as far too long. It proposed shortening this time elapse to 20 or (in certain instances) 10 days. It also would force an employer to set pre-election hearings to begin seven days after the filing of a petition and reduce from seven to two days the time by which an employer must provide an electronic list of eligible voters. The proposal, argues current NLRB Chairman Mark Pearce, is "about giving all employees who have petitioned for an election the right to vote in a timely manner and without...needless litigation."

Yet upon closer inspection, the regulation is all about giving unions maximum opportunities to expand their ranks. That's why AFL-CIO President Richard Trumka and other labor leaders have been so vocal in their support these past several months and why Republicans on Capitol Hill have been equally adamant in their opposition. The rule should be placed in the context of resistance by lawmakers to stalled "card check" legislation (i.e., the Employee Free Choice Act, or EFCA) that would force private-sector employers to recognize a union as the sole bargaining agent if a majority of affected workers indicate their desire to join. Given the nature of card check campaigns, which often take the form of strong-arm persuasion, GOP lawmakers see EFCA as a union power grab. Drawing up a rule to minimize the duration of union election campaigns, and hence minimize the duration of an employer's response, can be seen as a Democratic Party surrogate for EFCA.

The 2-to-1 vote by the National Labor Relations Board to finalize its ambush-election regulation comes as no surprise. Two members of the normally five-member board, Mark Pearce and Craig Becker, are Democrats. And they have an extensive background as highly partisan union lawyers. That's pretty much why President Obama named them to their posts in the first place - and why he appointed them via recess appointment in March 2010 in the face of Senate Republicans mounting a determined filibuster. The lone Republican, Brian Hayes, by contrast, was so opposed to the new rule that last month he threatened to resign from the board. Another reason why the vote was not unexpected is that Becker's temporary term runs out on December 31. And given the highly unlikely prospect of his reappointment to a full term, the NLRB almost certainly will enter 2012 with only two members - that is to say, too few to issue a ruling. The U.S. Supreme Court in June 2010 ruled in New Process Steel that a two-member board was insufficient for a quorum. Thus, Pearce and Becker had a very small window of opportunity to finalize the rule. And they used it to good effect, albeit with a compromise: Due to pressure from Hayes and various persons commenting in opposition, the final rule eliminates the provision requiring employers to provide union organizers with a list of employees' e-mail addresses and phone numbers.

Opponents have a window of several months to block the regulation from kicking in April 30. The House passed its Workforce Democracy and Fairness Act by a substantially less than veto-proof majority. But the Senate doesn't have a companion measure and isn't likely to produce one. If the legislative route isn't likely to bear fruit, the judicial route may. Some organizations aren't wasting time. On December 20, only hours after the NLRB vote, the U.S. Chamber of Commerce, joined by the nonprofit Coalition for a Democratic Workplace, filed suit in District of Columbia federal court to enjoin the board from enforcing its rule. The suit argues that the regulation contravenes the Constitution's First and Fifth Amendments, plus the National Labor Relations Act and other federal statutes. "This rule has no conceivable purpose but to make it easier for unions to win elections," said Randy Johnson, Chamber senior vice president for labor, immigration and benefits policy. "While couched in technicalities, the purpose of this regulation is to cut off free-speech rights to educate employees about the effects of unionization. The elimination of these rights has long been on the wish list of organized labor, and the Board has dutifully granted that wish today."

In the meantime, the National Labor Relations Board will enter 2012 with only Pearce and Hayes. President Obama is trying to make sure the NLRB can work with a voting quorum and with a strong pro-union tilt. Late Wednesday evening, December 14, Obama announced plans to nominate two persons, each a Democrat, to the board: Sharon Block and Richard Griffin. Block serves as deputy secretary for congressional affairs at the Labor Department, and previously served as labor counsel for the Senate Health, Education, Labor and Pensions Committee under the late Sen. Ted Kennedy, D-Mass. Griffin is general counsel for the International Union of Operating Engineers. In other words, even if Republican nominee Terence Flynn receives belated Senate approval, the board, given the approval of Block and Griffin, would have a ready-made 3-2 majority in favor of organized labor. The ambush election rule thus should be seen as a precursor to future NLRB efforts to expand union power under the guise of efficiency and fair play.

Related:

House Overrides NLRB's Ambush-Election, Micro-Union Positions

Will NLRB Create Stealth Pro-Union Legislation?