A union election is a decisive event in an employee’s life, and new rules limit the information employees get before voting.
The Wall street Journal August 9, 2011
Government encroachments typically come as a wolf in sheep’s clothing, Justice Antonin Scalia once observed, but occasionally they are brazen—then, the “wolf comes as a wolf.” The Obama administration recently proposed a pair of rules to help unions win workplace elections. One rule is obviously a wolf. The other is a pretty creepy looking sheep.
The “wolf” is a proposal of the National Labor Relations Board (NLRB) to enable unions to force organizing elections with as little as 10 days’ notice. Critical issues governing the election—such as which employees may vote—would be determined in a hearing just a week after the union petitions for a vote.
The company, which often will not even know a labor lawyer, would also have one week to prepare a hearing statement addressing such arcana as “the Board’s jurisdiction to process the petition; the appropriateness of the petitioned-for unit; . . . [and] the existence of any bar to the election.” In the same week, the company would have to learn its rights and responsibilities under the labor laws, prepare for the hearing and launch its campaign for the upcoming election. Oh—it has a business to run too.
And the union? Its business is organizing. Often, paid organizers have been working behind the scenes for months, awaiting the opportune moment to spring their election demand.
The day before the NLRB proposed its election-blitz rule, the Department of Labor proposed a rule to further hobble companies’ response to union organizing. The department’s rule concerns the circumstances where employers, and firms they hire to “persuade” employees on union matters, must disclose that relationship in government filings. Congress created an exception to the disclosure requirement if outside firms “advise” the company, rather than “persuading” its workers. Labor’s proposal sharply limits that exception. Disclosure now would be required, for instance, when a lawyer suggests changes to material the company has written to distribute to employees.
Businesses always are reluctant to make governmental filings about the purpose and terms of their relationships. That’s particularly so when sensitive strategic and legal matters are involved—and when misfiling could result in criminal sanctions. And so, the Labor Department rule is dressed in the innocent garb of “disclosure.” But its intent is to pressure experts and companies to curb the services they offer and seek—in order to avoid federal filing obligations—just as the NLRB rule increases a company’s need for experts to quickly counter the unions’ inherent organizing expertise.
An irony to the NLRB’s move to expedite union elections is that these already are among the fastest legal proceedings known to man. In 2010, according to the NLRB’s acting general counsel, the median time to an organizing election after the union petitioned was 38 days, and “95.1% of all initial representation elections were conducted within 56 days.” By contrast, a federal court case—which often is less decisive to a company’s future than unionization—takes a median of seven and a half months, not counting appeal. A defendant has 21 days to file an answer, a deadline that’s commonly extended.
A union election is a decisive event in an employee’s life too—and the new rules would limit the information employees get before voting. While union organizers will have had months to bend workers’ ears (and arms), the company gets just a few days to prepare and communicate its message. That means employees have limited opportunity to get the company’s perspective on what a union means for its cost structure and competitiveness.
Both proposals are cut from the same cloth as the dubiously titled Employee Free Choice Act (EFCA) from two years ago, which effectively would have eliminated secret-ballot elections for unions. EFCA failed to pass Congress because it was not just manifestly unfair, it was undemocratic. The secret ballot is integral to an election worthy of the name. And so is a campaign in advance to educate voters. Are companies’ statements necessarily more truthful than unions’? No. But to quote Justice Brennan (who quoted Judge Learned Hand), through the First Amendment we have “staked . . . our all” upon the belief that “right conclusions are more likely to be gathered out of a multitude of tongues.”
President Obama—an avowed civil libertarian and former voting-rights professor—can’t be feeling proud about a pair of rules meant to change election outcomes by limiting speech and helping one side get a jump on the other. But unions are a financial bedrock of the Democratic Party. And private-sector unions are in sharp decline—6.9% of the work force, compared to nearly 21% in 1978. The president’s allies may figure that helping unions win their elections is essential if unions are to help the president win his.
The problem with that calculus is that the administration has spent much of the year attempting to show businesses that it’s their ally and a foe of unreasonable, onerous new regulations. That message is sharply undercut by a pair of proposed rules that overnight could subject thriving businesses to blitzkrieg union elections for which they have scant ability to prepare.
Mr. Scalia, an attorney, was solicitor of labor under President George W. Bush.