After the forces of organized labor lost their battle for mandatory card check in Congress, it was widely anticipated that the board would give them the next best thing — “quickie elections,” which are held seven to ten days after a petition is filed. Like card check, quickie elections rig the rules to favor a union outcome. With NLRB chairman Wilma Liebman’s term ending in ten weeks, we may well see something issued soon.
Imagine a political election in which only one party were given the opportunity to tell voters its side of the story, and could set an election date only days away, all without prior notice to the other side. Sound unfair? This is the model the Obama board intends to impose on American business for union-representation elections.
One of the cardinal roles of the NLRB is to protect employees’ free and informed decisions on the issue of union representation. Consistent with that goal, the board has over many decades arrived at election procedures that allow for an election window of three to six weeks after a petition is filed. This permits the board to conduct a statutorily required hearing if the parties are unable to reach agreement on certain pre-election issues and to complete other pre-election requirements. The window also gives management the opportunity to learn about the union and either support it or assemble a case against it and make its reasons known to its workers. Organized labor abhors this opportunity because employees are less likely to vote for union representation if they are given the opportunity to consider both sides.
The current election procedures work. Under this system, union density in the private sector reached 35 percent in the1950s, when the election window was roughly the same or a bit larger.
Big Labor wants the rules of the game changed.
For variety of social, political, and economic reasons entirely unrelated to the board and its election procedures, union density has fallen below 7 percent for the first time. But instead of looking in the mirror and considering changes to the predominant combative, zero-sum union model that was a better fit for the 1930s and ’40s than for the 21st century, Big Labor is clamoring for its partisans at the NLRB to change the election rules to favor a union outcome. And its partisans at the board are prepared to do just that.
Here’s how it will work if the board has its way: Without the employer’s knowledge, the union will secretly collect employee signatures on a petition, covertly telling the employees they solicit what the union can do for them. After achieving the requisite number of signatures, the union will file the petition, catching the employer and the remaining employees by surprise. The employer will be faced with election only days away with little opportunity to inform itself about the union or the issues involved, and without the ability to express itself on the issue of unionization to its employees. Employees who were unaware of the union solicitations will find themselves in a similar situation.
As justification for such a sweeping change, the board will undoubtedly argue that any election delay only increases the likelihood that employers will commit unfair labor practices depriving employees of their free choice. But an orderly election process fully consistent with the statute does not constitute “delay,” and the same allegation can be made against unions. Furthermore, there is absolutely no evidence that an increased incidence of employer unfair labor practices is contributing to union decline. As mentioned, the election window was roughly the same or a bit larger in the 1950s when union density in the private sector was 35 percent; and the available board data shows a dramatic decline in the number of unfair-labor-practice complaints filed, from 6,230 in 1980 to 1,243 in 2010.
The board may point to Canadian provincial law, which provides for “quickie elections.” But Canadian provincial law does not have to satisfy the National Labor Relations Act or the U.S. Constitution.
Congress amended the NLRA in 1947 to “insure to employers and labor organizations full freedom to express their views to employees on labor matters,” and in so doing, according to the Supreme Court, was “implement[ing] the First Amendment.” According to the Court: “We have characterized this policy judgment . . . as ‘favoring uninhibited, robust and wide open debate on labor disputes,’ stressing that ‘freewheeling use of the written and spoken word’ . . . has been expressly favored by Congress and approved by the NLRB.” Quickie elections subvert this statutory goal.
Over the last 30 years or more, board law has changed when political control of the board changed. But what we are witnessing today from the Obama board goes far beyond what has occurred in the past. The board majority readily ignores statute language and congressional intent and trashes decades of board law and procedure with the sole goal of augmenting union power, even at the expense of workers’ rights. To continue to refer to this board as a “neutral independent agency” gives it legitimacy it no longer deserves.
— Peter Schaumber is a former chairman of the National Labor Relations Board.