On Tuesday two National Labor Relations Board officials, Chairman Mark Pearce and General Counsel Richard Griffin, appeared before the Labor, Health and Human Services, Education and Related Agencies Subcommittee of the House Appropriations Committee. Members asked Pearce and Griffin about new rules for union elections set to come into effect on April 14.
The new union election rules, known as “ambush election” or “quickie election” rules, were announced by the Board in mid-December. These rules would reduce the time leading up to union representation elections, which are held to see whether employees want unions to represent them through collective bargaining. Organized labor believes that more employees will vote for the union if the election is held sooner, because employers will have less time to present the disadvantages of union membership to employees.
On March 19 the House passed legislation to negate the union election rule, similar to Senate legislation that passed on March 4. President Obama threatened to veto the legislation, and it appears that the Senate lacks the votes to overcome a veto. Hence the hearing, with the possibility of withholding funding from the Board.
Under the new rules, regional NLRB directors must set a pre-election hearing eight days after an employer has received a petition for union representation, and the election must be held "at the earliest date practicable" afterwards. This could be anywhere from 13 to 22 days after the initial petition, compared to about 37 days at present.
At the hearing that General Counsel Griffin did not know whether the “ambush-election” rules required a pre-election hearing that was eight calendar or eight business days after a hearing notice was served (he was subsequently notified that it was eight calendar days). Rep. Chuck Fleischmann (R – TN) questioned the ability of small-businesses, especially in rural areas, to find a subspecialized labor lawyer within eight calendar days, using Labor Day as an example.
Speeding up the election is problematic because it takes time to work out the size of the bargaining unit, or which employees are eligible to vote for the union. In a large plant, some workers may have a common interest in being represented by one union, and some by another. Truck drivers might want to belong to the Teamsters and welders to the Ironworkers. The number and type of workers who vote on representation can affect the final results. Under the new rule, only after the election would there be a hearing to decide what is the appropriate bargaining unit for the election for union representation.
Putting off the decision about voter eligibility makes it easier to swing the final decision towards the union. Say that all employees in a retail store cast a vote, but only a minority want union representation. Under normal circumstances, the union would lose. But if the bargaining unit is redefined after the vote to include only those sections of the workforce that voted for the union, such as cosmetics workers at Macy’s, or shoe salesmen at Bergdorf Goodman, the union wins. That is the advantage to the union of the new system of vote first and decide later who is eligible in a post-election hearing.
According to Republican NLRB members Philip Miscimarra and Harry Johnson III, writing in a dissent from the rule, "When people participate in an election, it is significant whether they actually have a right to vote, whether their vote will be counted, and whether the election's outcome will even affect them. "
With potentially only 13 days between notification and the union election, employers have little chance to set up meetings to present their case to workers. Unions, by filing a petition, will have already provided workers with the so-called advantages of joining a union. The employer deserves equal time to present the other side. Disadvantages of joining a union include the mandatory payment of dues and initiation fees, the need to give up merit bonuses (the pay structure is set by the union), and forced membership in a pension plan that might be in poor financial shape. The rushed schedule limits employers’ presentations at a time when workers need to know the facts.
Under the new rule, employers have to turn over personal information about employees to the union, a gross violation of privacy. This includes home and personal cell phone numbers and home and personal email addresses. Employers must allow the union to use company email to communicate with workers. This can be confusing to employees because work emails are usually sent out with the approval of the employer.
Subcommittee chairman Tom Cole (R – OK) said, “For an agency that is supposed to be bipartisan, [this is] a very one-sided rule in my view.” He continued, “I think that two weeks is certainly is not long enough to organize something as important as the election of union representation.”
Why the rush? With declining union membership, the NLRB wants to do everything in its administrative power to tilt the playing field towards unionization—even if it goes against decades of precedent. Congress has been pressed by organized labor for many years to give unions greater leverage for gaining new members, but it declined to take action. The Employee Free Choice Act, which would have taken away the right of workers to a secret ballot in union elections, did not pass even when Democrats controlled both legislative chambers. The NLRB has taken matters into its own hands.
It is unlikely that ambush elections will stand up in court, but legal challenges take years, leaving employers and workers in a state of uncertainty. A better solution would be for Congress to withhold funds from the NLRB until the agency revises its rule. Tuesday’s hearing was a start.
Diana Furchtgott-Roth is the director of the Economics21 program at the Manhattan Institute for Policy Research. You can follow her on Twitter here.
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