Publications: Proposed election rules grease skids for unions

During 2009, when Democrats controlled both the White House and Congress, Big Labor's top priority was the passage of the Orwellian-named Employee Free Choice Act (EFCA). Designed to do anything but protect employee free choice to decide whether or not to have a union, EFCA essentially would have done away with the government-supervised secret ballot union elections that have been the hallmark of the National Labor Relations Act for more than 80 years and replace it with the so-called "card check." Under the "card check," a union is declared the employees' exclusive collective bargaining agent if 50 percent plus one of the employees in a collective bargaining unit sign union authorization cards for that union. The card-check process obviously would make it much easier for unions to organize work forces, without the "bother" (or for that matter, integrity) of secret ballot elections.

EFCA as proposed provided no real safeguards to ensure that employees were not coerced by union organizers to sign the cards and accordingly came under fierce attack by Republicans, employers and employee-rights advocates. EFCA's anti-democratic tenor was so odious that even the left-wing luminary George McGovern condemned it. When Republicans retook the House of Representatives following the 2010 elections, EFCA rightly was consigned to the trash heap.

But what Big Labor could not achieve through the democratic lawmaking process it is now attempting to back door by National Labor Relations Board (NLRB or board) rulemaking, courtesy of an Obama-appointed board. Recall that one of the new board members, Craig Becker, is a former counsel to the Service Employees International Union. On June 22, the NLRB, per these Obama appointees, published in the Federal Register proposed rules that, if adopted, will "streamline" the NLRB election process.

The significance of this expected "streamlining" cannot be overstated. Under the current rules and NLRB practices, union election campaigns typically last 35 to 42 days between the date a union formally petitions the NLRB for a secret ballot election and the date the board actually conducts the election. That time is critical to employers because unions are trying to win employees over, generally under the radar and without the employer's knowledge, long before they petition the board for an election. Management needs the four to six weeks post-petition to get its viewpoint heard and counter the ongoing union message. In compressing the time between petition and election, Big Labor hopes to reduce significantly the opportunities the target employer has to get its message out to its employees. The less time the employer has to campaign, the better the union's chances of winning the election. Ultimately, the employees, deprived of a fair opportunity to hear both sides of the story, lose out.

Why is Big Labor pushing so hard to make it easier to organize? The statistics tell a compelling story. According to the U.S. Department of Labor, unions in 1983 represented about 20 percent of all American workers. Twenty-seven years later, in 2010, unions represented just 11.9 percent of all American workers. That 2010 number is grimmer still for labor if you back out public sector employees and look at union representation of just private sector employees: 6.9 percent. It is little wonder that Brian Hayes, the lone Republican NLRB member, commented, "In truth, the 'problem' which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections."

What are the more significant changes to be wrought by the proposed rules? First, the proposed rules would require targeted employers in contested bargaining unit proceedings to submit within seven days a Statement of Position Form setting forth the employer's specific positions regarding the appropriateness of the union's proposed bargaining unit. Employers who do not agree with the union's proposed bargaining unit would be required to identify a list of employees in "the most similar unit the employer concedes is appropriate." Significantly, an employer that fails to raise in its position statement an issue concerning the proposed bargaining unit will be precluded from raising that issue at any subsequent NLRB hearing regarding the unit's appropriateness.

Second, the proposed rules would eliminate pre-election NLRB review. Under the current rules, a board regional director ordering an election cannot set balloting to occur less than 25 days after the direction of election. This delay allows all parties to request NLRB review of the regional director's decisions in the matter. The proposed rules would defer board review of regional director determinations to alter the election. In other words, important issues, particularly as to who is allowed to vote, would not be definitively settled until after the vote is held. Kafka could not have designed a more nightmarish scenario for employers.

Dissenting board member Hayes said it best: "By administrative fiat in lieu of congressional action, the board will impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition … The principal purpose of this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining." Of course, that should have been of little surprise given that member Becker for years has questioned whether employers should have any role in the election process.

Big Labor, of course, applauded the proposed rules. Others were less complimentary. Sen. Mike Enzi, R-Wyo., the ranking Republican on the Senate Health, Education, Labor and Pension Committee, blasted the proposal and called the board a "runaway agency."

The NLRB's notice allows interested parties 60 days to file comments on the proposed rule changes and an additional 15 days for reply comments. After the comments are in, the board's Obama appointees will approve the rules and member Hayes will dissent. A court challenge is inevitable.

Stay tuned.

Reprinted with permission from Chicago Daily Law Bulletin.