NLRB hearings will reveal the future of labor law

Second, GOP leaders have threatened legislative action against the NLRB for proposing to streamline the agency’s antiquated and cumbersome administrative practices on union recognition in an attempt to get rid of the worst cases of election delay. In retaliation, they have proposed amending the law to diminish the already limited power of the board. The proposed legislation, first introduced after the Boeing complaint, includes a provision boosting employers’ well-established right to free speech during organizing campaigns – an indication that Republicans were gearing up early for the new rule on NLRB elections.

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So who really cares about these seemingly technical issues of labor law?

The Boeing dispute is critically important for its workers in Washington and South Carolina (whose rights to unionize have been effectively nullified by Governor Nikki Haley). But instead of working towards a practical compromise, Boeing executives and Republican leaders have turned the complaint into a divisive national issue by lambasting the NLRB and, by association, the Obama Administration. Conservative commentators have even blamed the NLRB’s action for contributing to the jobs crisis by discouraging skittish executives from investing, even though the dispute does not involve the creation of a single new job.

The issue at the heart of the Boeing complaint, illegal retaliation against workers for exercising their right to strike, has limited importance for labor-management relations. Strike levels are at historic lows, most workers consider industrial action a virtually suicidal undertaking, and whatever the outcome of the complaint, that is unlikely to change. But the outcome will be vitally important in determining whether influential corporations such as Boeing can violate labor laws with impunity and whether Republican bullying will succeed in undermining the enforcement actions of independent agencies.

Then there is the new NLRB election rule. Revisions to NLRB election processes are anathema to corporate America, which exercises a virtual stranglehold over the current system, and to Republicans, who oppose anything that protects the right to form a union. This issue is of greater importance to conservatives than Boeing, but also a more difficult one to spin with the mainstream media. How exactly will modest reforms designed to modernize administrative processes and stop employers gaming the system through extensive delay undermine employee free choice?

GOP and corporate leaders claim that the new rule will deny employers adequate time to explain their opposition to unionization. But the financial weekly Barron’s acknowledged that these arguments “could be more symbolic than real, since… employers are rarely caught unawares,” and the Chamber of Commerce conceded that the new proposal is “not as bad” as a 15-day election proposal that unions should have pushed through Congress two years ago. Under the new rule, employers will have ample opportunity to convey their anti-union message. As a recent LA Times editorial pointed out, “employers can and often do begin pressing the nonunion line on each worker's first day on the job.”

So who will win the debate? Stacked against Republicans is the overwhelming majority of academic opinion, which supports the
modernization of the NLRB’s antiquated procedures, and the actual behavior of employers, many of whom delay elections in an attempt to undermine employee support for unionization.

In their favor, Republicans have gimmicky rhetoric – “ambush elections,” “quickie elections,” or “snap elections” – and an abundance of bare-faced hypocrisy. This month, House GOP leaders held hearings titled “Rushing Union Elections: Protecting Big Labor at the Expense of Workers’ Free Choice,” at which they argued that election delay should be extended rather than curtailed. So enabling employers to prolong delaying tactics will protect employee choice?

One of the GOP witnesses at the hearing stood out -- a senior partner at the law firm Jackson Lewis. In the past, Jackson Lewis has counseled
employers on the benefits of election delay in article titled “Time is On Your Side,” which advises that lengthy campaigns can undermine support for the union. Inviting such a firm to testify at a hearing on employee free choice only serves to demonstrate the contempt that Republicans now hold for labor rights.

Thus, the party that supports outlawing collective bargaining for public sector workers, defunding the NLRB, and extending delay in NLRB elections is the champion of employee free choice? In previous decades, this kind of breathtaking hypocrisy was restricted to fringe groups on the anti-union right. But now it pervades the very essence of the GOP.

The GOP and corporate groups disingenuously claim to be the defenders of “employee choice” while simultaneously seeking to make it virtually impossible for workers to form unions. Monday and Tuesday’s NLRB hearings may go some way to exposing the duplicity behind the arguments.

John Logan is director and professor of labor and employment studies at San Francisco State University.