The Hill, July 27, 2011
Last week the National Labor Relations Board held historic public hearings - the first in three decades -- on its
proposed new rule on union certification elections. The rule, designed to streamline cumbersome administrative
practices and eliminate excessive election delays, was roundly criticized by the U.S. Chamber of Commerce, National
Association of Manufacturers, various anti-union organizations, and representatives from several of the nation's
largest "union avoidance" law firms.
How do their arguments against the new rule and in favor of the status quo - under which anti-union employers
can delay elections for several months -- stand up to scrutiny? Not well, as illustrated by ten examples
below from the two-day hearings.
1. The National Association of Manufacturers (NAM) believes the new rule would deny employers sufficient
time to respond to a union petition. But employers do not wait until a petition to convey their
anti-union message, as pointed out by an LA Times editorial: "Employers can and often do begin pressing
the nonunion line on each worker's first day on the job."
2. According to the NAM, most employers feel "extraordinarily rushed" under the current
"union-friendly" regulations with a median of 38 days between petition and election. If U.S. employers feel
rushed under the 57-day average, their Canadian counterparts -- who cope with 5-10 day election periods --
must feel completely under siege.
3. The Chamber of Commerce stressed that unions win more than 60 percent of elections. But that figure excludes
campaigns withdrawn between petition and election and those that fail to make it to petition, and ignores
the fact that many unions that have all-but abandoned the "employer-friendly" NLRB system.
4. The Chamber complained the new rule threatens the "legitimate and substantial interest" of employers in NLRB
procedures. But the new rule does not restrict employer speech in any way, and employer interests have fared
remarkably well in recent decades, while those of employees have not.
5. One Chamber of Commerce representative claimed the rule would prevent a "free and reasoned choice by the
electorate." This is true only if one believes that lengthy election campaigns dominated by "captive audience"
meetings -- which employees can be sacked for refusing to attend -- are necessary for free and reasoned choice.
Under the new rule, captive meetings and all other aggressive anti-union tactics will remain. If employers want
genuine choice, moreover, they could provide the union with access to employees and encourage a real debate.
6. The anti-union Coalition for a Democratic Workplace stated that the proposals "blow up the envelope and do
violence to the administration of the act." This is extreme rhetoric from an extreme organization, but one that
now appears to represent mainstream GOP opinion on the NLRB.
7. The Society for Human Resource Management (SHRM) believes the proposal threatens the "institutional
credibility" of the NLRB, while the open shop Associated Builders and Contractors finds a "sense of outrage"
towards the board. In reality, the failure to protect worker rights has undermined the agency's credibility over
many years, while outrage towards the NLRB does exist -- but largely among GOP leaders, anti-union organizations,
and employer groups whose extreme views fail to represent the best interests of their members.
8. SHRM objected to the proposal being rushed through, and argued that it is part of a "regulatory tsunami"
coming out of the board. At least there's consistency here: support for delay in NLRB elections and support for
delay in NLRB rulemaking. But in terms of tackling the shortcomings in the current NLRB process, the new rule is
more a ripple than a tsunami.
9. A Jackson Lewis lawyer called the proposal an effort to implement through rulemaking aspects of the
failed Employee Free Choice Act. Fact: Jackson Lewis has advocated election delay as a tactic to undermine
employee support for unionization. Fiction: the NLRB rule makes any mention any of EFCA's three provisions --
card check, first contract arbitration and tougher penalties for employer violations.
10. A Littler Mendelson lawyer stated that the rule would "severely cut into the time for employers to
campaign" against unions. But Barron's acknowledged that arguments like this "could be more symbolic than real"
because "employers are rarely caught unawares." Firms like Littler Mendelson and Jackson Lewis make millions of
dollars from "counter-organizing" activities under the current system that enables their clients to delay
elections and deploy aggressive anti-union tactics.
It is no wonder they favor the status quo.
Finally, outside the hearings the anti-union Americans for Job Security displayed a large inflatable rat with
the message "Stop Worker Intimidation." Perhaps the most risible aspect of this debate is the notion that these
groups seek to protect the interests of employees. Thus, the same organizations that advocate extensive delay as an
anti-union tactic are the defenders of employee free choice. In terms of barefaced hypocrisy, it is almost without
equal in today's political discourse.
John Logan is professor and director of labor and employment studies at San Francisco State University