The National Labor Relations Board has been one of the most active outposts of the Obama “unilateral presidency.” It returned to the news last week with a proposal to speed up union elections. The board floated this rule once before. It failed. Take two is no better.
The idea first surfaced in 2011, after “card check” legislation to steamroll elections failed in Congress. The NLRB then went looking for other ways to make it easier for unions to organize work sites. They landed on a new rule, which would get unions in the door fast with speeded-up certification votes.
In that spirit, the NLRB jammed the rule through with the votes of only two members, both Democrats. An official quorum required three members, and on that ground the U.S. District Court in Washington declared the vote invalid, in response to a lawsuit by the Chamber of Commerce.
Under the NLRB’s latest and rewarmed proposal, a company is required to give the union the contact information for all its employees, and the time frame for a vote is shortened. The current average period after the union calls for a vote is 38 days. The new rule would shorten it to between 10 and 21 days after the petition is filed.
Unions say the quickie rule is necessary because the longer time frame lets businesses discourage workers from supporting the union. An alternative view would be that 38 days allows businesses and workers to have a debate on the merits of unionizing before the election is held. Union membership rates have been declining in no small part because when workers are given an informed choice, they don’t think union representation is worth losing a chunk of their paycheck.
However much it may appear that business is at the mercy of whatever the current NLRB wants to do, the law itself—the National Labor Relations Act—is clear about business’s rights during organizing campaigns.
That labor law guarantees companies’ First Amendment right to engage with their workers on the merits of a unionizing proposal: “Expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice.”
The labor board’s proposed fast-vote rule would unbalance that right. While a union may silently stalk a company for months to prepare for a unionizing effort, under the new rule the employer would have only days and at most three weeks before the vote.
The NLRB declined in 2011 to appeal its initial defeat in federal court for violating quorum rules. Instead, it waited for a Democratic quorum and majority on the board. They now have that. While the rule is open for a comment period, we’re going to guess that the new liberal members will vote it through, and the legal challenges will begin again.
In 2011, the Service Employees International Union said the speeded-up election procedures would “ensure that workers are able to exercise a fundamental right we hold dear in our country—the right to vote.” In fact, the point of the new rule is to limit workers’ freedom to discuss and debate whether their workforce should be unionized. There’s not much democratic about that.