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Workplace Democracy Gets Ambushed (Read More…)

The National Labor Relations Board’s new election rule runs roughshod over the rights of nonunion workers.

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

Posted by Admin on 07/30 at 11:00 AM

Republican bill targets unions’ power (Read More…)


Republican lawmakers are taking aim at organized labor by re-introducing legislation this week to strictly limit union power to force dues from workers who oppose the union’s political agenda.

The Employee Rights Act, scheduled to be introduced Monday by Sen. Orrin Hatch, R-Utah, and Rep. Tom Price, R-Ga., also includes several changes to the election rules for private-sector workplace organizing, making it harder for unions to win — and hold onto — recognition without genuine majority support from workers.

“Our economy has undergone a significant transformation over recent years, as innovation and technological development have fundamentally reshaped the American workplace. Despite these fast-moving changes, Congress last overhauled our labor laws more than 50 years ago. Today, these outdated laws allow unaccountable union bosses to hinder growth and disregard employees’ rights. That’s why I’m introducing the Employee Rights Act, which includes a number of important reforms,” Hatch told the Washington Examiner.

The legislation would be a severe blow to the labor movement’s financial and political clout since it draws a substantial part of its funding from workers who are obligated to support it even if they don’t want to join a union.
The two lawmakers had sponsored the same bill in several previous Congresses but it got little traction, never getting out of committee in the Democrat-led Senate. With the GOP now in control of Congress, the measure has a chance to land on President Obama’s desk.

It is nevertheless unlikely to become law. Obama would be certain to veto it, and there isn’t enough support to override him. But it could force the first major congressional debate on labor rights in decades.
The National Labor Relations Act, the main federal law governing private-sector unions, generally assumes that unions are synonymous with workers and thus gives individual employees who dissent little say in workplace matters.
The Employees Rights Act attempts to change that, limiting the power a union has over workers who do not wish to join it. To its fans, it is about ensuring individual rights.

“This legislation would give workers more control over their working conditions,” said James Sherk, labor policy analyst for the conservative Heritage Foundation. “Workers — not union officers — would have greater influence over how collective bargaining operates in their workplaces.”


Posted by Admin on 07/27 at 03:13 PM