WFI Protests NLRB's Union 'Snap Election' Policy Change

The Workforce Fairness Institute has sent the following letter to the National Labor Relations Board today:

August 8, 2011

Wilma B. Liebman
National Labor Relations Board
1099 14th Street, NW, DC20570-1000

Docket ID: NLRB-2011-0002 Agency: NLRB RIN: 3142-AA08

Dear Chairwoman Liebman,

The Workforce Fairness Institute (WFI) is an organization committed to educating workers, their employers and ordinary citizens on important issues affecting the workplace.

We respectfully submit this comment in opposition to the National Labor Relations Board’s (the Board or NLRB) proposed rule, published in the Federal Register on June 22, 2011, which would, if implemented, dramatically change the Board’s representative case law and procedures.

At a time of near double-digit unemployment and increasing economic anxiety, the proposed rule would further undermine business confidence in the ability of the NLRB to deal fairly and neutrally on issues involving labor and management.  It represents a sweeping change in Board law and procedures, which would tip the election process decidedly against legitimate employer interests adding to a regulatory climate that will discourage domestic business investment.

The Board’s proposal shortens the period of time from a petition to an election from a current median number of 38 days, with 95% of all elections taking place within 56 days, to as little 10 to 14 days.  It flips the nature of the pre-election hearing, moves to after the election the resolution of most pre-election issues, and changes the Board’s standard of review for post-election challenges and objections from a de novo review of the record to a discretionary standard based on compelling circumstances.  Currently, representation elections generally occur within five to seven weeks of a petition’s filing and unions win nearly 68 percent of them.  By all indications, the Board’s election process that has been in place for decades under both Republican and Democratic Administrations has worked exceptionally well.  This raises the question: Why is there a sudden need for such sweeping changes?  The majority’s proposal makes no effort to establish a predicate for it.

While the Board cites election delay as the motivation for the proposal, it never defines when a reasonable period of time between a petition and an election ends and delay begins.  The Board fails to cite cases where unacceptable delays have occurred and the reasons for them.  Since delays occurs in a relatively small number of election cases, it is difficult to avoid concluding that the proposal is a rushed effort to achieve a result long favored by organized labor, but without regard for workers’ and their employers’ rights under the National Labor Relations Act (Act).

The election rule, if implemented in its current form, will stifle, if not eviscerate, the ability of an employer to express its views on unionization and the right of employees to hear those views and make an informed choice.  In many instances, the only story the employee will have heard is the union story.  While that may be perceived by the current Board as promoting collective bargaining, it does so at the expense of workplace democracy.

The decision whether to be unionize, however, is one of the most important workplace decisions a worker will make in his or her time on the job.  As a result, when workers vote for union representation, the election should be preceded by a full and fair exchange of information on the issue from the union, the employer, fellow employees and others.  The NLRB’s current pre-election period allows for such an exchange, for the “robust debate” on the issues dividing labor and management that Congress intended.  The proposed rule does not.

It would be considered undemocratic if in a political election only one party was given the opportunity – or the predominant opportunity – to speak with voters and the ability to set an election date only days away without prior notice to the other side.  Shouldn’t the same principles that guide our political democracy guide the workplace democracy that is guaranteed workers under the Act?

The proposed rule gives union bosses who are familiar with Board law and procedures an unlimited amount of time to organize and prepare for an election, while it gives small businesses mere days to respond.  The employer, who may never have heard of the NLRB much less be familiar with some of the Board’s arcane election law principles, will have seven days to prepare for an adversarial hearing.  The result, as pointed out by Board Member Brian Hayes in his dissent, is likely to deprive smaller employers of legal representation and due process.

The Board has long favored the informal resolution of labor and management disputes.  The NLRB’s current election procedures reflect that preference; they foster the informal resolution of pre-election disputes.  Last year, this resulted in 92% of all elections proceeding on the basis of pre-election agreements.  The proposed rule threatens to undermine this success, while imposing on employers a rigid obligation to identify all pre-election issues in a maximum time of seven days of the petition’s filing.  And at the pre-election hearing, the employer, not the Board’s agent, will be responsible for developing a full record.  To suggest that this new procedure is analogous to the summary judgment procedures of the Federal Rubles of Civil Procedure ignores the time and the discovery available under those rules and smacks of either antipathy, or a stunning lack of sensitivity, for all that is involved in operating a financially successful enterprise.

The Board’s current election procedures are logical and uncomplicated.  The proposed rule is not.  Leaving until after the election the resolution of issues some of which will determine whether the election should have taken place to begin with will be a waste of the Board’s and the parties’ time and financial resources.  Similarly, leaving until after the election the determination of a voter’s supervisory status will result in additional elections being set aside or, at least being contested for alleged coercive supervisory conduct.  A similar result will follow leaving eligibility issues involving up to 20% of the electorate until after the election.  A large number of Board elections are decided by a narrow margin of voters.  With all of these uncertainties left without a final resolution, it is fundamentally unfair to impose on the employer the risk that if he or she contests the election result, they imperil normal business operations.

It seems clear from the witnesses who testified at the Board’s public hearing, which concluded with Professor Kate Brofenbrenner, that the NLRB is of the view that employer unfair labor practices necessitate a shortened period of time between a petition and an election.  There is simply no reliable evidence, however, to support that conclusion or that workers are rejecting unionization because of employer intimidation or other illegal activities.  Brofenbrenner is well-known for her research which overstates beyond credulity employer threats of plant closings during a union organizing campaign.  A former union organizer herself, Brofenbrenner based her conclusions on the anecdotal information she received from fellow union organizers.  She apparently avoided management interviews believing they would be less reliable.  The study she and Professor Dorian Warren testified about during the Board’s July 19 hearing references Bronfenbrenner’s flawed prior research and bases its additional conclusions on union charges filed, not unlawful labor practices found, much less complaints issued.  Since roughly 65% of all charges are dismissed after an investigation as being without merit, the study’s conclusions are invalid.  The report reveals in one column of Table 1 that only 25% of the charges resulted in unfair labor practice findings, but makes no effort to adjust its conclusions for that fact.  In addition, there is no evidence that the elections studied constituted a representative sample.  The charges studied were filed in connection with 154 elections conducted in 2003.  These elections were taken from a universe of 558 elections held over a four year period, which were selected based on undisclosed criteria from a universe of 1000 randomly selected elections.Simply put, employer unfair labor practices do not skew election results against the union as has been alleged by a few of the speakers.  Instead, when workers reject unionization in a secret ballot election it is because they have weighed the pros and cons of unionization and have determined it is not in their own best interests.  Having an adequate period of time between a petition and an election gives workers a fair opportunity they make that determination.

We take strong issue with the proposed rule’s Excelsior List revisions that require employers to provide labor bosses with proprietary employee contact information such as personal e-mail addresses and telephone numbers.  This information, to the extent it is provided, is generally given to the employer in confidence to be used in the event of an emergency.  The employee has a right to have this information kept private unless the employee expressly agrees otherwise.

Once again, we want to emphasize, beyond the immediate negative consequences on the principles of workplace democracy, the “quickie” elections being proposed will place additional costs and burdens on small business owners who lack the resources and legal expertise to navigate and fully comprehend the Board’s election processes.  In this struggling economy, the Board should avoid making sweeping regulatory changes that will put this critical element of our economy further at risk.  The proposed changes in the Board’s election law and procedures will result in more unemployment as scarce business dollars will be used to comply with its new and complex requirements.

We urge the Board to reconsider this proposal and the haste with which it is pursuing it.  While we  recognize that a Board majority is expected to reflect, to some degree, the policy preferences of the President who appointed its members, to sweep aside decades of Board election law and procedures in this fashion for the perceived benefit of organized labor undermines the agency’s legitimacy as a neutral instrument of government charged with promoting stable labor-management relations.


Fred Wszolek
Workforce Fairness Institute


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