On three separate panels, I testified last week against the flaws inherent in the National Labor Relations Board’s (NLRB) latest proposed rule. The NLRB benignly purports to re-examine “Representation Case Procedures.” The rulemaking is commonly known as the ambush elections rule, as a result of a key component that could require elections in as few as ten days. FIRST PANEL On the first panel, I addressed the election date at the heart of the proposal. Approvingly quoting a letter from eighteen United States Senators who commented against the proposed rule, I noted that, “then-Senator John F. Kennedy stated that it was essential to allow ‘at least a 30-day interval between the request for an election and the hold of an election’ in order to ‘safeguard against rushing employees into an election where they are unfamiliar with the issues.’” The crux of then-Senator Kennedy’s statement is a focus on safeguarding employees and on ensuring that effectively educating employees remains the Board’s focus. ANALOGY TO STUDENTS’ STUDIES Pointing out that the median times for elections are on the order of 40 days and that the proposal could call for elections in as few as ten days, I asked, “Would your students benefit from a 75-percent reduction in study time?” I pointed out that workers, who already have a job and many of whom have families and hobbies, are challenged with essentially learning a crash course in labor law and labor economics—two arcane and intricate areas normally pursued by highly trained specialists with advanced degrees. An absolute minimum of 30 days and really a routine minimum of sixty days are appropriate to learn such material. LABOR-MANAGEMENT REPORTING & DISCLOSURE ACT
Figure 1First, Title IV of the Labor-Management Reporting and Disclosure Act of 1959, the LMRDA, establishes standards for elections of union officers. Under the LMRDA, the Guide for Election Officials regarding “Conducting Local Union Officer Elections” provides a handy “Election Planner” in Figure 1. After doing the math, the Election Planner importantly envisions nomination notice well over a minimum 30 days before the election. A vote to install a union is at least as important as a vote for union officers. In fact, installing a union has longer lasting and wider ranging effects than selecting individual union officers. As a result, workers need at least as much and really more time to prepare for union representation votes compared to union officer elections. MCCAIN-FEINGOLD ACT Second, there's the example of federal legislators considering the minimum amount of time appropriate for educating voters in their own elections. The example arose in the context of the McCain-Feingold legislation, also known as the Bipartisan Campaign Reform Act (BCRA). There, legislators established that at least 60 days before a general election should be available to educate voters with television advertising. The 60-day minimum limit was struck down in the U.S. Supreme Court case Citizens United v. Federal Election Commission, so that now there is no limit on the time available to educate voters in this way. Hence, a 60-day minimum time to educate voters in union representation elections is reasonable too. THE BOTTOM LINE—LIMITING SKEPTICS’ SPEECH The bottom-line concern is that union proponents are attempting to limit the speech of skeptics of unionization. ADMONITION TO AVOID RAW PARTISANSHIP In closing, I advised the Board to insulate themselves from charges of raw partisanship and an almost certain move to undo your work that would result from a party-line vote. As we have seen with the ObamaCare law, this approach is not the best way to create policy. I suggested that instead the Board seek longevity for its work by obtaining bipartisanship with the vote of at least one member of the minority. SECOND PANEL In the second panel, I recounted the points of my colleague Trey Kovacs regarding privacy concerns that could arise from the National Labor Relations Board’s proposed rule. Of particularly concern is the provision of the rule adding workers’ phone numbers and email addresses to future Excelsior lists, putting employees at risk of identity theft, cyber harassment, cyber stalking and telephone harassment. PRIVACY & PREEMPTION The courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated because Congress did not define the areas where federal labor law preempts state law. A recent judicial case, Fisher v. Communication Workers of America, displays the inconsistencies in determining when federal labor law preempts state law. UNION CORRUPTION The case involves the Communications Worker of America (CWA) Local in North Carolina where its union president John Glenn posted in a public area at the company’s North Carolina facility the names and Social Security numbers of AT&T employees who chose to rescind their union membership. After NLRB General Counsel Lafe Solomon refused to prosecute the CWA for posting and disseminating AT&T employees’ social security numbers, the CWA and NLRB agreed to a voluntary settlement, where CWA admitted no wrongdoing. After that, the employees with legal assistance from the National Right to Work Defense Foundation filed a lawsuit in North Carolina under its Identity Theft Protection Act, only to have North Carolina courts rule that unions may put employees at risk of identity theft because the activity is covered by the NLRA, which preempts state law, and consequently the union could not be punished by state authorities. It is important that workers maintain the ability to protect their privacy and collect damages if union officials abuse the employees’ phone numbers and email addresses. The Board should rescind the provision providing unions with employee telephone numbers and email addresses. Failing that, phone numbers and email addresses should be optionally provided. Failing that, the NLRB should make clear its opinion that workers may pursue state legal remedies that are available under cyber and telephone harassment laws. Making workers vulnerable to identity theft, cyber-attacks, and telephone harassment can neither be legitimate purposes nor legitimate effects of the rulemaking. ANALOGY TO LISTS IN THE CONTEXT OF UNION OFFICER ELECTIONS Again, the LMRDA provides a ready structure for voter lists in the context of electing union officers. To deviate from LMRDA union election procedures would lead to charges of hypocrisy. In the Guide for Election Officials regarding “Conducting Local Union Officer Elections” provides a handy touchstone reference. “Chapter 7: Inspecting the Membership List” states, “[C]andidates in union officer elections also have a right to inspect a list of members (and their addresses) subject to a collective bargaining agreement which requires union membership as a condition of employment. This right to inspect is limited to once within 30 days before the election and does not include the right to copy the list.” A candidate to become a union should not have more access than the union officers do. THIRD PANEL In the third panel, I stated my belief that the Board must consider situations where augmenting the understanding of the worker—the stated goal of this rulemaking—militates towards affording non-parties more opportunity to educate them. THE PROBLEM—PROCESS FAILURE & STRUCTURAL IMBALANCE Positing a neutrality agreement situation whereby the business, in collusion with the union, provides no counterpoints to unionization arguments. By definition, when these NLRB regulations are triggered, the union is seeking to be the exclusive bargainer on behalf of all of the workers. As Dr. Darrin Murray previously stated on behalf of the SEIU union, “We are the union. We are the ones organizing.” In other words, the workers are receiving the pro-unionization rhetoric from the union. The process established by the NLRB presumes that the business will explain to the workers the problems associated with unionization. In the neutrality agreement scenario, however, this information is not being conveyed. Thus, when a neutrality agreement is in place, a process failure occurs; creating an imbalance and inequity that leaves the workers uneducated on one side of the issues. For examples, the workers are neither learning about the direct labor law effects upon them nor learning about the significant labor economics that affect workers’ incomes and the economy. ONE SOLUTION When Chairman Pearce raised the specter of a sort of public education of the worker taken on by the Board, I demurred at the idea of more government intervention. In a related point, Ms. Elizabeth Molito, on behalf of the National Federation of Independent Business, spoke of small business preferring to receive information from a source other than the government. As has been noted in the case of Volkswagen in Chattanooga, outside groups have proven willing to engage in the arena of issues education. When outside groups fulfill the role of educating the workers about the perils of unionization, there should be an additional amount of time afforded for this education. In a neutrality scenario, perhaps the outside groups fulfilling this role of educating workers about the downsides of unionization should be afforded the opportunity to receive Board filings.