Without making a case for it, the Board’s proposed “quickie election” rule would shorten the time for a board election from a median time of 38 days to as little as 10 days. It accomplishes this result by radically manipulating the Board’s election process so as to tilt the process in favor of organized labor. The proposal moves from before to after the NLRB’s election resolution of virtually all pre-election issues even though those issues may determine whether or not an election should have taken place.
The rule replaces a non-adversarial hearing conducted by an agency hearing officer who is charged with the responsibility of making a full record with an adversarial one. Employers are given only seven days time to obtain legal counsel and to prepare for this new adversarial hearing at which time they must raise all pre-election issues or they permanently waive their right to do so.
These revisions will deprive the parties to a Board election of a full and fair hearing, the agency and reviewing courts an adequate record, the employer a meaningful opportunity to express its views on unionization, and the worker the opportunity to make an informed choice. Under the rule, workers would hear only one side of the story – the union side. Emasculating workplace democracy in this manner may result in more union wins, but it is not good for workers, small business owners or the nation as a whole.
H.R. 3094 also reverses the Board’s micro-unit decision, Specialty Healthcare. In authorizing micro-units the NLRB broke with Board law developed since shortly after the NLRA was passed 77 years ago. A bargaining unit under the Act could be all the employees of the employer, a facility, a department, a craft or something less. But a unit always had to be of a sufficient size to warrant separate group identify thus preventing an undue proliferation of units. Under Specialty Healthcare these principles are tossed aside.
Now, a union can cherry-pick a very small number of employees doing the same job in the same location – the cashiers at a supermarket -- without regard to whether such a small unit warrants separate group identify from, let’s say, the baggers or others on the floor. This drastic revision of the nation’s labor law will make it easier for a union to gain access to an employer – it is easier to organize four employees than 40 – but it is inconsistent with the Act and the legitimate interests of workers and their employers.
The Workplace Democracy and Fairness Act is an appropriate and necessary response to the two very misguided actions of the Obama NLRB.
It is not the Board’s place to rewrite our nation’s labor laws to favor a perceived constituency, organized labor. And Big Labor’s support for these actions is short-sighted. The decline of unionization in the private sector is the result of a combination of social, political and economic causes, not our nation’s labor laws.
Organized labor, which has contributed so much, needs to come to grips with this reality instead of encouraging short-lived solutions that are inconsistent with the principles of workplace democracy, undermine workplace harmony and are damaging to a fragile economy.
Peter Schaumber is the former chairman of the National Labor Relations Board (NLRB).