Business Under Assault

by Peter Kirsanow

The National Labor Relations Board is poised to issue new union-election rules that will significantly increase the number of unionized workplaces while at the same time severely restricting employers’ involvement in the determination to unionize their businesses and forcing employees to make an uninformed choice regarding the decision to unionize.

The NLRB held hearings on the proposed rules earlier this week. I argued against issuance of the rules on behalf of the National Association of Manufacturers — the nation’s largest industrial trade association — saying that although the rules would be enormously beneficial to unions, they would be profoundly harmful to employees, employers, and the economy. NAM was at the forefront of defeating the Employee Free Choice Act, or “card check.” These proposed NLRB rules promise to achieve the primary objectives of EFCA — easing union organization and vastly increasing the number of unionized workplaces — by administrative rule, without the need for tough congressional votes.

There are at least 17 readily identifiable, substantially deleterious effects of the proposed rules, but the two most damaging aspects are the reduction of the timeframe in which union elections will be conducted and the backloading of certain procedural safeguards to free and fair representation elections.

In a nutshell, the proposed rules would reduce the median timeframe between the filing of a representation petition and the conduct of a union election from 38 days to 10–14 days. This will utterly and completely deprive employers of the ability to communicate vital information to their employees regarding their rights and the effects of unionization. Even under the current median of 38 days, many if not most employers have a difficult time communicating their positions to their employees.

Consider the typical union-campaign scenario: The union spends six to eight months gathering authorization cards from employees at a targeted facility. During that time, the union conveys its message regarding the benefits of unionization with few constraints. The employer, meanwhile, is completely oblivious to the fact that an organizational campaign is underway.

The employee population hears a one-sided, unrebutted story from the union organizers, and frequently an inaccurate one. The employees won’t hear about the downsides of unionization. They may not hear about union dues, fines, and assessments. They won’t hear about the union’s political or social agenda, with which many of the employees may not agree. They won’t hear about unionized companies that have become uncompetitive and are struggling or have gone out of business.

The union decides when to file an election petition with the NLRB, which will also determine the approximate date of the election. This is the first time most employers are even aware that a union campaign is under way — and the election is a mere five and a half weeks away.

It takes most employers two weeks just to formulate their own campaign strategy in response. Consequently, were the proposed rules implemented, the election would occur before the employer has even figured out what it wants or needs to say to its employees regarding the particular union and unionization in general. For those of us who’ve been involved in hundreds of organizational campaigns, it’s difficult to conceive of how a union couldn’t win an election under such circumstances.

Supporters of the proposed rules contend that they’re but modest changes to current practice. Wrong. Employers understand that this is the most consequential change to labor law in more than half a century. And the proposed rules are just the beginning. The NLRB’s imminent decision in Specialty Healthcare, a case I’ve written about before, could permit unions to cherry-pick for participation in union elections only those employees the union knows support the union, effectively guaranteeing that unions win almost every election.

Again, this is wonderful for unions. But at what cost to the rights of employees, the competitiveness of employers, and the health of the economy?

— Peter Kirsanow is a former member of the National Labor Relations Board.

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