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.
"The employer, meanwhile, is completely oblivious to the fact that an organizational campaign is underway."
Oh please. It strains credulity to believe that any employer would be so oblivious that a 1/2 year long card campaign would go un-noticed. It is not as if an unionization campaign happens out of the blue to workforces who are completely content with work conditions.
The proposed rules are bad. They tilt the playing field to far in the union direction but lets stop with the whole 'management had no idea' meme.
Reply to this commentLinkReport Abuseso are companies allowed to wage a counter information campaign against the union prior to an election being called for ?
The consequence of this will be to force companies to constantly wage a campaign of anti-union information.
Want to bet the NRLB will sue the company ?
Reply to this commentLinkReport AbuseIf you think companies are not constantly waging anti-union campaigns you are naive. There is a whole industry for union avoidance and its premise has always been the earlier a potential problem is confronted the better.
Reply to this commentLinkReport AbuseI work in the union avoidance field.
Most employers do not know what is happening until a majority of cards are signed.
Reply to this commentLinkReport AbuseThen you are very bad at your job. The primary defense against unionization is robust employee/management communication. I have worked in HR my entire adult life, almost 40 years, and have been through numerous attempts to unionize workplaces. Not once have I not known, and by extension the owners of the company, that there was a card campaign active. There is always someone in the workforce who will spill the beans, very often this is prompted by the subtle intimidation that union organizers love to use.
Any business that has a card campaign active for 6-8 months and is unaware of that probably deserves to be unionized because they are completely out of touch with their employees.
Reply to this commentLinkReport AbuseYou are too kind in describing the imbalances. As one who has gone through more than one organizing campaign, the critical piece of info always glossed over is: employers are legally prohibited from deliberately or unintentionally speaking falsehoods. Everything the employer states publicly MUST be true. The union has absolutely no such constraint. So when messages conflict, why does the media not ask the most basic of questions: is the employer breaking the law, or is the union lying?
Reply to this commentLinkReport AbuseThe ONLY reason ANYbody wants to reduce the opportunity to disseminate information about themselves is because that info is liable to be negative about them. Is that so hard to understand? And the ONLY reason ANYbody would ever try to put in rules that limit such exposure time would be because they cannot change the facts that go against them.
I have noticed something going on in America these days that I just wonder the time limit on--just how long we'll go along with it before we get fed up and mightily offended. It is this: the open, willful, and even cheerful description of people that others want to influence as, in effect, too dumb to know better. Unions (and I'm a member of several and have been an officer in two) nowadays basically are telling their workers that they are not only too weak to negotiate their own best interests, but that they are, as in this case, too dumb to be allowed to get all the info out there before making a decision. This is massively insulting and, of course, untrue.
It isn't just unions that are doing this--has anyone seen any of the many commercials for VOIP company "Vonage" the sum total of whose message is "If you're too dumb to even read your own phone bill, we're the company for you!"--and I just wonder how soon the average American will stand up and say, to the marketers, the unions, and most of all the government (and mostly lefty commentators) who dare to castigate them for "not voting in your own self-interest" and basically call them too stupid to be in charge of their own destiny, "Enough!"???
It can't happen too soon. Exposing proposals like this one from the NLRB/Unions will only hasten the long-overdue day of reckoning.
Reply to this commentLinkReport AbuseSadly, there are a great many citizens of this republic who let themselves fall on the backside of the bell curve of ignorance. And, then, the folks you mention work strenuously to keep them there.
Reply to this commentLinkReport AbuseHow long before the NLRB just makes union membership mandatory?
Reply to this commentLinkReport AbuseIt's never going to happen, act like an adult and don't over exaggerate.
Reply to this commentLinkReport AbuseUnion membership is already mandatory in many workplaces. This is enforced by the NLRB and various other govt agencies. We need more "right to work" legislation where union membership is by individual choice and we don't have the union hand in our pockets.
Reply to this commentLinkReport AbuseHow about we get the government out of the business of regulating employee-employer relations? That would solve most of this.
Reply to this commentLinkReport Abuse"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?"
The Obama administration doesn't care about the rights of employees.
Reply to this commentLinkReport AbuseThe Obama administration doesn't give a rat's patootie about the competitiveness of employers.
The Obama administration doesn't care about the health of the economy except as it bears on Obama's re-election chances.
Obama needs to be thrown out of office in 2012.
It would be a good thing for our country if we shut-down the NLRB, the US Commission on Civil Rights, the Dept. of Education, Homeland Security, the SBA, well, just shut-down about 90+% of all of the various boards and commissions. My guess is that besides grievance-mongers, grant-seekers, rent-seeking businesses and bureaucrats, no one would complain. The savings in labor costs (total compensation) might not be substantial, but the savings in compliance costs, and 'cover-your-behind' costs, would be quite substantial. One can dream...
Reply to this commentLinkReport AbuseYes, turn us into Mexico, that works.
Reply to this commentLinkReport AbuseThe proper resolution of this is to depoliticize the decision for or against union representation. That is, take it out of the realm of majoritarian politics and return it to the individual, where it was prior to the enactment of the NLRA. There is no moral (or Constitutional) warrant for compelling anyone to accept representation by some person or group if he doesn't choose it. That is to say, unions should operate under the same rules as all other groups -- free to seek to persuade people to join or contract with them but having no right to compel those who say "no."
Eliminating the exclusive representation provision from the NLRA would go part way toward restoring the freedom that the statute has destroyed. Another provision that would have to go is the legal mandate to "bargain in good faith." Employers ought to be free to say, "I don't choose to bargain with you" to union representatives just as they are free to say that to any other party.
Let's just repeal the NLRA in full and leave this to the states, where federalism says it should be.
Reply to this commentLinkReport AbuseThe second thing an incoming Republican President should do is an Executive Order abolishing the NLRB. Then get Congress to rewrite the job description and purpose of the new NLRB which does not include campaigning for or against any Union. The new Board should be comprised of an even number of political appointees.
The first thing is abolish Obamacare.
Reply to this commentLinkReport AbuseThe unions are at the van of the downfall of America. They deprive their own members of rights, and as stated in the article, have one agenda - leftist. Members have no choice where their dues go, so if they don't want to re-elect the liar-in-chief, tough!
The potential union members are getting one side of the story, just as the American people are getting one side of the story because of the tilted, totally biased media. I am almost at the point of desperation, particularly since the GOP is so inept at forming a cogent statement, or that they aren't DEMANDING televised news conferences to tell the people the truth.
Here's today's question: For years the leftists have been screaming that Social Security will be solvent until 2132. Obama says that if the debt ceiling isn't raised, Social Security checks may not go out. Someone on the left is lying.
Reply to this commentLinkReport AbuseI can understand opposition to unions - I work for one. I appreciate some of the benefits that the union provides / forces the company to abide by. But to accuse approximately 12% - 15% of the countries workforce of being the root of all evil, so to speak, is a little hard to swallow. If 15% of the workforce of this nation actually does carry this level of influence, then perhaps non-union advocates should organize themselves better to fend off "all" of those "bullies." Time to stop using such a small minority of America's worker's as a scape goat.
Reply to this commentLinkReport AbuseI too have spent a great deal of time in my career in the labor relations business. One of the tactics of some unions has been to present "cards" to the employer and asking that they be accepted. Many employers have accepted them to avoid a long union campaign so in effect the employer accepted "card check". In doing so, they gave up their employees' right to vote in a secret ballot election. If I were an employee in that company, I would have sued the company for abrogating my right to participate in a free election. Can some of the lawyers on this thread tell me why that wouldn't work.
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