Anti-union Right’s alternate reality on NLRB election rule

Fact No 1: Is “regulatory uncertainty” destroying jobs? On this point, Wszolek might read the Economic Policy Institute’s study, “Regulatory Uncertainty: A Phony Explanation for our jobs problem.” EPI director Larry Mishel concludes, “An examination of current economic trends, and especially what employers are doing in terms of hiring and investment, debunks this story about regulatory uncertainty as the cause of our dismal
job growth.” With regard to the NLRB rules, GOP lawsuits and legislation are responsible for creating the current uncertainty.

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Fact No 2: Is the current NLRB more “politicized” than its predecessors? As evidence of this alleged politicization, Wszolek quotes respected former NLRB chair Bill Gould. Gould criticized the General Counsel’s handling of the Boeing dispute, while other experts supported the decision to issue a complaint. But contrary to what Wszolek suggests, Gould
appreciates current efforts to improve enforcement of the law. Wszolek omits one key sentence in Gould’s quote: "I agree with much of what this board has done and is likely to do, but I don't agree with what the general counsel has done in the Boeing case.” Wszolek would do well to read Professor Gould on the problem of election delay: “The employer that
is adamant in its resistance to unionization has time on its side….” Nor does Wszolek mention the partisanship of the Bush NLRB, which in 2007 issued more than 60 decisions attacking workers’ rights, known collectively as the “September massacre.”

Fact No. 3: Is the new rule is unnecessary because the NLRB election system works well? Wszolek cites board statistics that the median time for certification elections is 38 days as “proof” that the rule is unnecessary. The new rule does not set a definite time limit, but let’s suppose it reduces the median election period to 21 days. This is still
significantly longer than the 5-10 day elections mandated by Canadian provinces and “not as bad” as a 15-day election proposal that, according to the Chamber of Commerce, organized labor should have pushed through Congress in 2010.

Moreover, it is unclear how 38-day elections represent a repudiation of a rule designed to reduce pre-election litigation and deliberate employer delay. As scholars at Cornell and Columbia Universities have demonstrated, longer certification elections are more likely to involve management intimidation of employees. For all these reasons, the rule is desirable.

Fact No. 4: Is the election rule simply the Obama Administration’s payback for “Big Labor’s” support in 2008? And who would really benefit from the rule – ordinary employees or “union bosses”? Wszolek might read the work of Harvard economist, Professor Richard Freeman: “Workers continue to want to have much greater say at the workplace than the U.S. labor relations systems gives them. Workers want unions more than ever before.”

This is the critical issue: No matter how much the GOP and its anti-union proxies try to distort the debate, the simple reality is that the current election system fails to protect the free choice of too many Americans who want union representation at work.

So what about yesterday’s Senate debate?

Introducing his resolution, Sen. Enzi stated that the current NLRB is “more controversial than most observers can ever remember.” He is correct in one respect: the present situation at the labor board is virtually unprecedented.

Never in its history has the NLRB experienced anything quite like the political attacks of the past 15 months. But the root cause of the controversy is not, as Enzi and Wszolek would have us believe, that the board has moved to the left. Rather, the GOP has moved far to the right and no longer believes that workers should be free to select representatives of their own choosing and engage in collective bargaining to improve their terms and conditions of work.

Not so long ago, the Republican Party accepted these basic principles. But no longer. Enzi’s Senate statement illustrates the impossibility of having a rational debate when one side no longer believes in the fundamental rights labor law is intended to protect.

Logan is Professor and Director of Labor and Employment Studies at San Francisco State University.

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