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Peter Schaumber June 30, 2015

The Washington Times

When the NLRB chairman claimed in a press release that the agency’s controversial new election procedures would give “businesses and workers a process they deserve that is effective, fair, and free of unnecessary delays,” the devils in hell must have blushed. The Board’s new “Ambush Election” rule has nothing to do with fairness. It was adopted to limit, if not eviscerate, an employer’s protected speech on the issue of unionization before an election and to stack the deck in favor of a union outcome.

The rule rewrites the Board’s election procedures to shorten the time for a Board election from a median of 38 days with 94% of all elections taking place within 56 days—a time-line considered “remarkable” by the first Obama-appointed Acting General Counsel—to only 13 days.

Although preventing “unnecessary delay” is the principal reason for the rule, the Board does not examine the relatively few elections that have taken too long and the reasons why. Instead, it slashes time from all pre-election procedures and orders that all elections take place “at the earliest date practicable.”

The Board bobs and weaves indecorously with half-truths to explain why the rule provides no time for a debate on the most important workplace decision an employee is likely to make.

For example, the Board informs the public that the “current [now former] rules and regulations do not set forth any such time periods [either].” The former rules did not set aside a specific time for a pre-election campaign, but they allowed time for one. For example, 25–30 days was provided between the order for an election and the election. Claiming that “[t]his delay served little purpose,” the Board summarily removes it, well aware that it gave the parties and the employees time to debate the issues.

And to address the argument that it is interfering with protected employer speech, the Board responds that it does not “change any rules regarding speech,” while failing to acknowledge that it does everything it can to limit the time within which that speech can occur.

The NLRB is controlled by committed members of a labor movement threatened by a continuing loss in union membership. They sincerely believe that unionization is the only avenue available for workers to achieve equal dignity and respect and are determined to turn the decline around.

Union decline in the private sector is the result of a combination of political, social, and economic factors—mostly beyond their control, but Big Labor and movement members ignore that reality and claim that the cause of the decline is intensified employer opposition.

That claim is the unstated reason for the Ambush Election rule, and it is indefensible for two reasons. First, lawful employer opposition benefits the workplace by allowing for a more informed electorate, and it is expressly protected by law that contemplates an “uninhibited, robust and wide-open” debate on labor issues.

If the employer steps over the line, the same law authorizes the Board to set the election aside. Second, the research Big Labor consistently relies on to support its claim of increased unlawful employer opposition is dubious at best—specifically on unreliable anecdotal evidence and unproven allegations of misconduct.

For example, Professor Kate Bronfenbrenner’s conclusions are based on interviews of 562 union agents. Not surprisingly, her conclusions are inconsistent with the Board’s statistics, which show a significant drop in employer unfair labor practices since 1980.

The Board denies that the rule’s goal is to curtail employers’ protected speech. “[T]he dissent acknowledges—as it must—that the final rule expressly disclaims any such purpose.” Translation: It is so because we say it is so.

But the day has long past when representations of the Obama NLRB can be taken at face value. The second reason given by the Board demonstrates why.

According to the Board, just because some commentators—”someone, somewhere”—claim that silencing the employer is the reason for the rule, that does not make it so. But in fact, two commentators are among the principal authors of the Ambush Election rule—former Board members Craig Becker and Nancy Schiffer—both have forcefully advocated for eliminating the employer from the election process, claiming that employer participation intimidates employees and denies them free choice.  Before he was named to the Board, Becker pushed for changes in the Board’s election procedures to achieve that very result.

If the courts look beneath the surface of the Board’s justifications for the Ambush Election rule, they will not be deceived, and the rule will be denied enforcement in whole or in part. This outcome is in the interests of workplace democracy and the nation as a whole.

Peter Schaumber was a former Chairman of the NLRB appointed by President George W. Bush.

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Hector Barreto

July 28, 2015

Washington Examiner

The ambush election ruling is perhaps one of the most egregious National Labor Relations Board (NLRB) rulings to date, significantly speeding up the unionization process while providing no tangible benefit to American workers.  With union membership steadily on the decline—from nearly one-third of workers in the 1960s to one in ten American workers today—it appears as though the union-backed NLRB will stop at nothing to increase union rolls and pad big labor bosses’ pockets.

As expected, since the ambush election rule went into effect in April, the number of petitions for elections to unionize rose dramatically.  In the first three months of the rule taking effect, case filings increased by 15 percent.  According to data provided by the NLRB, from April to July, election filings totaled 773, up from 668 during the same period last year.  Since April 14, 20 ambush elections have been held, taking an average of 25 days.

The shortest election to take place, according to National Law Review, was in Region 22 in Newark, New Jersey, where an election was conducted in just 9 days.  In this instance, employers and employees had just over a week to educate themselves on the facts.

Historically, employers had an average of 38 days—a little over a month—to combat and plan for a union election.  In fact, in 2014, more than 95 percent of these elections occurred within 56 days.  The extra time was important, allowing small companies who don’t have in-house counsel to hire an outside legal expert to ensure they are complying with labor laws and election practices.  Before this rushed ruling, employers had that extra time to speak with their employees and explain what unionization would mean for their individual workplace, and for their paychecks.  But not anymore; the ambush election ruling stifles an employers ability to speak freely with their workers and increases the likelihood that a workplace will unionize.

History shows that the shorter the amount of time an election takes place after the petition is filed, the greater the likelihood that a company will unionize.  From 2004 to 2014, unions won 86 percent of elections that took place in less than 21 days, while they only won 60 percent of those that occurred within 36 to 42 days.

Workers should have the right to make informed choices when casting a ballot in workplace elections, just as they do when they cast a ballot for their government officials.  Ambush elections seek only to benefit union bosses, who often use coercion and misinformation in order to get a favorable vote.  Workers shouldn’t be forced to make rash decisions without having time to gather the facts.

The new rules also violate worker privacy.  Previously, employees were only required to provide names and home addresses.  Now, however, they must provide all contact information they have for their employees, including personal email addresses and both cell and home phone numbers.  Union bosses now have the ability to harass you and your family at home, in hopes of getting a favorable vote.

Fortunately, business-friendly members of Congress included provisions in both the House and Senate appropriations bills earlier in July to defund the NLRB and took action to block the board from implementing these rules.  If these provisions remain in these “must pass” appropriations bills, President Obama may have little choice but to sign them.  I applaud Congress for coming together in a bipartisan way and attempting to roll back this NLRB overreach, and encourage them to keep at it.

Backed by taxpayer dollars, the NLRB was originally created to protect workers, not tip the scales in favor of union membership.  But the Obama administration’s NRLB has proven to be one of the most ideological in America’s history, stifling employers’ free speech, hurting workers’ free choice, and invading employee privacy.  It’s time to rein in the board’s power.  Workplace elections, like all elections in our American democracy, should be fair, impartial, and transparent.  Unfortunately, thanks to this new ruling, they are anything but.

Hector Barreto is the former head of the Small Business Administration.

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