July 29, 2015
You may have heard of the National Labor Relations Board’s new “ambush election” rule—so-called because it hurriedly schedules union elections within as little as two weeks, depriving employers of the time needed to learn about the union and express their views to employees.
But what you may not know is that the rule requires an employer to provide union organizers with the personal cellphone numbers and email addresses of its employees before they vote in a union election. So much for the right to privacy.
It doesn’t seem to matter to the Obama-era NLRB that a worker may have provided this personal information on condition that it be kept confidential and used only in an emergency. Nor does it matter to the board that union organizers may use the information to bombard the worker with pro-union messages and demands anywhere, anytime.
The NLRB defended its new disclosure requirement by claiming that there has been no evidence of union “abuse of voter lists” in the 50 years that the board has required they be handed over to unions. But that depends on what you mean by “abuse.”
On Oct. 1, 2008, two employees at the Boulder City Hospital in Nevada complained during a union-organizing campaign that they were being harassed to “sign up for the Union.” In response, the hospital posted a reminder of its anti-harassment policy.
Seems reasonable enough. Yet the NLRB—with the current chairman, Mark Gaston Pearce, in the majority—found that the hospital’s posting was an “unfair labor practice.” According to the board, “persistent union solicitation even when it annoys or disturbs the employees” may be considered harassment to some but cannot be interfered with by an employer or its representatives.
The NLRB rejected calls that workers be allowed to opt out of the requirement that their personal contact information be disclosed to the union. Demonstrating a callous disregard for the rights of workers who are not actively pro-union, the board said the new disclosure requirement “maximizes the likelihood that all voters will be exposed [to messages they] may not be predisposed to.”
The rule also transforms what has been a largely informal pre-election process aimed at helping the parties identify and resolve issues into a formal, adversarial one. The rule requires employers to complete a written “Statement of Position” form on all contested election issues within as few as seven to eight days after the employer is served with the union’s election petition. These can include complex, arcane legal issues that most employers are unlikely to know anything about.
The most pernicious impact of this change will be on smaller employers. Without experienced labor counsel, they might unknowingly waive their right to challenge issues important to the workplace, such as whether the union is entitled to file a petition and whether the size of the “bargaining unit”—the group of employees the union seeks to represent—is appropriate. A unit that is too small threatens to have a detrimental impact on non-bargaining-unit workers, involving them in workplace disputes, even work stoppages, in which they have no interest. Making matters even more unfair, employers are not allowed to amend their Statement of Position forms without a showing of “good cause.”
The new rule also guts the significance of the pre-election hearing that the Supreme Court has held was intended by Congress to give all parties “full and adequate opportunity to present their objections.” The rule does this by postponing until after the election consideration of fundamental pre-election issues, such as who is eligible to vote.
This may result in workers voting to be members of a bargaining unit that may be transformed after the election into something very different. This is analogous to workers voting for one candidate but getting another. If, after the election, the unit is certified by the NLRB over the employer’s objections, the employer can continue to contest the issue but only if it refuses to bargain with the union over the terms of a collective-bargaining agreement, which will trigger litigation.
The employer may reasonably hesitate before doing so, without regard to the strength of his position. Under decades-old NLRB law, if the employer loses the litigation, the union can require that any changes made in the terms and conditions of employment since the election was certified be undone. This can include far-reaching changes that will be incredibly costly to undo, like requiring the employer to reinstate a production line that was discontinued during the litigation due to market conditions.
For the Obama NLRB, this is the new normal for workplace democracy: disclosure requirements that do not honor worker privacy and election procedures that skew results in favor of unions.
Lawmakers in the House and Senate have introduced legislation to protect workers and employers by rolling back the overreaching ambush-election rule. The bills don’t stand a chance of becoming law while President Obama occupies the White House. But with a new president and perhaps less biased NLRB appointments in 2017, change should come.
Mr. Schaumber was a member of the National Labor Relations Board from 2002-10 and chairman in 2008.