For most of the last year, Washington business lobbyists and various right-wing organizations have been engaged in an all-out war against the National Labor Relations Board, the agency that protects the right of employees to join a union if they want to. The NLRB has been excoriated for an enforcement action against Boeing, for requiring employers to post a notice letting employees know what their basic rights are under the law, and for trying to modernize its 65-year-old procedures for union representation elections. In addition, congressional Republicans have taken extraordinary steps to block President Obama from appointing a full five-member board to lead the agency and decide cases.
Yesterday, Republican senators failed in an effort to block the NLRB’s election modernization rule. The Senate defeated a resolution of disapproval 54-45, with all Democrats opposed and all but one brave Republican, Sen. Lisa Murkowski of Alaska, crossing party lines. The resolution would have repealed the new rule and prevented the NLRB from adopting a new one to replace it.
One of the ironies of these right-wing attacks on the NLRB’s attempt to streamline representation election procedures is that it belies conservatives’ supposed dislike of excessive bureaucracy and frivolous litigation. Typically, business leaders and anti-government activists charge that government processes are plagued with unnecessary delays, for example in FDA approval of new drugs or medical devices. When it comes to rushing a product to market that might cause disabling injuries or even death, conservative critics usually side with speed over lengthy review.
Likewise, when the issue is the prevention of illegal immigration and the preservation of jobs for American citizens, leading businesses and trade organizations call for limited review and speedier determinations. Recently, for example, 40 multinational corporations wrote President Obama to complain that the State Department takes too long to issue visas to companies that want to bring foreign workers to the United States. The companies object to having government officials ask for evidence about the need for particular foreign computer techs, even though the Inspector General has found widespread fraud and abuse in visa applications. And nothing is more common than to hear officials of the Chamber of Commerce complain about frivolous litigation and laws that enrich attorneys–“full employment for attorneys!”–when the purpose of a law is to allow average citizens to sue after their health or safety has been jeopardized by corporate misbehavior.
So here, in the case of a regulation designed to reduce the opportunities for lawyers to delay representation elections through frivolous litigation, the Chamber is showing its real agenda. Efficiency no longer matters; the more time bureaucrats spend reviewing legal arguments that add nothing to a decision, the better.
Here’s a recent example involving T-Mobile: A union petitioned to represent a unit of 14 technicians in Connecticut. T-Mobile argued that five engineers should have been added to the unit. The law is clear that an employer cannot require that professional employees be added to a unit of non-professional employees, and engineers are regularly found to be professional employees. T-Mobile claimed that these engineers were different, forcing four days of hearings that wasted government resources. The new rules would have given the NLRB’s Hearing Officer the authority to require the employer to make an offer of proof as to how its engineers were “different” from the hundreds of cases in which engineers with college degrees were found to be professional employees, thus eliminating at least three of the four days of hearings and needless legal expenses.
Why are business lobbyists suddenly in favor of inefficiency and delay? Because delaying the date of the election gives the employer more time to harass and intimidate workers who otherwise might vote for a union.
Cornell researcher Kate Bronfenbrenner and her colleague Dorian Warren examined thousands of union representation cases and documented that employers engage in intense campaigns of abusive anti-union activity. They also found, as the NLRB put it, “a longer period between the filing of a petition and an election permits commission of more unfair labor practices with corresponding infringement upon employee free choice, while a shorter period leads to fewer unfair labor practices.”
Employers call the NLRB’s new election rules the “ambush election” rules because they remove various automatic appeals and such built-in delays as an arbitrary, automatic 25-day delay after the board issues an order for an election. This waiting period alone gave an extra three weeks to employers to hold captive-audience meetings (even to require employees to attend them outside of normal work hours), to subject employees to repeated one-on-one sessions with their supervisors, and to figure out which employees support the union and which do not.
The NLRB has realized that its old rules tilted the playing field toward anti-union employers and ultimately discouraged employees from exercising their right to choose without interference. An honest assessment and a modest amount of consistency would lead most observers to agree that the new rules are fair and sensible.