Toward the end of last year, the National Labor Relations Board (NLRB) finalized a rule for “quickie” or “ambush” elections. The final rule significantly diminishes the amount of time for workplace elections and threatens the unionization of workplaces without labor having secured the employees’ un-coerced majority support.
The Obama labor board majority, formed in April 2010, waited until June 2011 to propose a rule which would make startling changes in Board law and procedures. While the NLRB claimed the reason for the rule was delay in Board elections; that was in stark contrast to an earlier report of the acting general counsel who described the elections as taking place in a remarkably short period of time.
The unstated goal of the rule was to give organized labor the next best thing to card check: limiting, if not eviscerating, the time an employer has to express its views on unionization and its employees’ right to hear those views and make an informed choice. The predominant, perhaps only, story the employees would hear is Big Labor’s and there are few limits on a union’s ability to make promises that cannot reasonably be kept.
The proposal was so controversial that the NLRB received more than 65,000 comments, the vast majority of which were opposed the rule change. Since the Board is legally required to carefully consider each of the comments it receives and address the issues they raise, there was insufficient time for it to do so before labor radical Craig Becker’s term ended. As a result, the NLRB’s two member majority issued a final rule that was pared back from what had been originally proposed.
The rule nevertheless limits employer free speech by cutting the amount of time for NLRB elections at least in half. And the rule stacks the deck unfairly in favor of unionization by pushing board review of pre-election issues such as the appropriateness of the bargaining unit and voter eligibility until after the election, issues that can determine whether an election should have taken place at all. The changes were designed to pressure employers to accept the results of elections even if the business has evidence that the election results do not reflect the un-coerced majority support of the employees.
The Board emphasized in its announcement of the new rule that this was only the beginning, that it anticipated the next Obama NLRB would complete its work and promulgate the balance of the proposed rule. Only a few weeks ago, the new chairman, a former union lawyer, Mark Pearce announced his intent to do just that. He chillingly stated, “We keep our eye on the prize.”
According to news reports, the final rule “would expand on sweeping regulations approved in December that speed up the process for holding union elections at work sites.” By adopting additional and original elements of the proposed rule, Obama’s labor board could limit the amount of time for union elections to as little as 10 to 14 days. This would complete organized labor’s goal of minimizing – to the maximum extent possible – the employer voice in a Board election.
The “quickie” election rule is only one element of the Obama labor board’s extreme partisan union agenda. Coupled with other actions it has taken, unions will have easy access into any workplace they target. For example, last August, the NLRB turned 76 years of American labor law on its head and announced that unions could petition to represent “micro-units,” essentially collective bargaining units with as few as two or more employees doing the same job in the same location. Its unstated reason: it is easier to organize two or four employees than it is 20 or 40.
This change in the law threatens to balkanize the workplace, increase discord not harmony among employees as different unions with conflicting goals represent various small groups of employees, and it will dramatically increase an employer’s labor relations costs.
Recognizing the deleterious impact the NLRB’s quickie election rule will have on workplace democracy and employee free choice, Senator Mike Enzi, the ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, which has oversight over the regulatory agency, announced that he would use the Congressional Review Act (CRA) to undo the “ambush” election rule.
According to the Senator’s Web site, “[t]he CRA allows either the Senate or the House to introduce a joint resolution of disapproval with the full force of law to stop a federal agency from implementing a recent rule or regulation. A resolution of disapproval introduced under the CRA cannot be filibustered and needs only a simple majority in the Senate to pass if acted upon during a 60-day window.”
It is our hope and expectation that both houses of Congress will have the opportunity to vote on the CRA to demonstrate their support for or opposition to this misguided “quickie” election rule.
There is simply no need to expedite the union election process as most already take place in about a month, but this is about “payback” to union bosses, not good policy making or standing up for workers. As a result, members of the House and Senate should enthusiastically support Enzi’s CRA and send a message to Obama’s labor board that this Congress will use every tool at its disposal to end the job-killing giveaways to Big Labor.
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