It's "Wonderland" at Obama's Labor Board

“If I had a world of my own … [n]othing would be what it is because everything would be what it isn’t,” said Alice in Alice in Wonderland. Well, so it is at President Obama’s National Labor Relations Board (NLRB). The board is making sea-changes in law and procedure, but it characterizes them merely as “modest” and “routine.” Consider three cases in point – the Boeing complaint, the “ambush election” rule and Specialty Healthcare or micro-union decision – in which the board made radical departures from past policy and described them not by what they are but by what they are not.

First, the Acting General Counsel, Lafe Solomon, described the board’s Boeing complaint as “routine and not unprecedented,” despite the fact that it was inconsistent with controlling law and sought an unprecedented order dictating to an American manufacturer where it could produce additional product. And Solomon defended the accuracy of the complaint’s pivotal allegation that Boeing’s opening of a new plant for additional production was a “transfer” of unit work because the work “could have been done” by Boeing’s unionized employees in Washington State. Mr. Solomon needs to read a dictionary’s definition of “transfer.”

Second, the board’s chairman, Mark Pearce, used the same Wonderland language to blunt public criticism of the far-reaching “ambush election” rule. He repeatedly describes as “modest” the sea change in board election law and procedure made by the new rule that he and former board Member Craig Becker rammed through the agency last December on the vote of only two members. Modest? Then why all the rush? Because the rule cut in half the time for a union organizing election, limiting the ability of employers to secure legal counsel and to express their views on unionization to their employees. Although the unions’ election win rate hovers near 70% today and the elections themselves take less than a median time of 40 days, unions win more elections when the employer is effectively muzzled by a narrow election window.