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Congress Gives Up Fight against NLRB Ambush Election Rule

The Competitive Enterprise Institute planned on scoring the Senate’s veto override vote on S.J. Res. 8, a Congressional Review Act Resolution of Disapproval to void the National Labor Relations Board’s “ambush election” rule. Unfortunately, the Senate voted 96-3 to table the measure in order to focus on other business.

While it was unlikely that Senate Republicans could have mustered the 67 votes needed to override President Obama’s veto, GOP members should have demanded a vote to put senators on the record on whether they support the special interests of labor unions or worker rights.

The NLRB’s ambush election rule threatens workers’ freedom of association and privacy, while hampering employers’ abilities to educate employees on the impact of unionization in the workplace.

Further, the ambush election rule is a regulatory solution in search of a problem that doesn’t exist. Labor unions already win 65.2 percent (FY 2013) of all union elections held. Labor unions win an even higher percentage of elections when employees have less time to educate themselves on unionization, and the main component of the rule is to drastically shorten the time period for union organizing elections, possibly to as little as 11 days after a union files a petition.

In addition, it is clear labor unions were patiently waiting for the ambush election rule to be promulgated on April 14 to file election petitions because it will ease the path to unionization. In FY 2013 and FY 2014, a total of 1,238 and 1,260 representation case union elections were conducted, respectively. And in just the several weeks since the new election rule was implemented, more than 140 election petitions have been filed by unions. That is around 11 percent of all union elections conducted in each of the past two years in just a matter of weeks.

The only problem that the NLRB is trying to solve in issuing this regulation is declining union membership, which reached an all-time low of 11.1 percent in 2014. Regulators at the NLRB know that easiest way to reverse the slide in union membership is giving employees less time to contemplate whether or not to vote on union representation.

As I mentioned in Investor’s Business Daily:

Currently, the median election takes place in 38 days, hardly an unreasonably long time. According to the NLRB’s own performance analysis report, union representation cases are handled at above the agency’s own target rate.

In FY 2014, nearly 96% of all initial elections were conducted within 56 days of the union filing a petition, but unions win more elections when employees have less time to educate themselves about unionization. From 2004 to 2014, unions won only 60% of elections conducted in 36 to 42 days but won more than 86% of elections conducted in less than 21 days, according to NLRB data.

Not only does the ambush election rule allow workers little time to make a decision that will affect their wages and work environment, it also seriously threatens worker privacy. It compels employers to provide employees’ contact information to union organizers, including personal cell phone numbers, email addresses, and work schedules—without an opt-out provision for those who prefer not to share personal data.

The privacy threat to workers is real. The NLRB General Counsel’s guidance memo on the ambush election rule specifically mentions issues that could arise from distributing workers’ private information:

(1) selling the list to telemarketers, (2) providing it to a political campaign, or (3)
using the list to harass, coerce, or rob employees.

Yes, the NLRB is worried that compelling employers to release its employees’ private information may lead to the lists being used to “harass, coerce, or rob employees,” but this has not worried members of Congress enough to do anything about it.

Although Republicans agreed to table the override of the president’s veto regarding the ambush election rule, now they are pushing legislation to reform union election procedures. On May 6, Sen. Lamar Alexander and Rep. John Kline ”urged passage of their legislation to ensure fair union election by ending the board’s damaging rule” (see bills, here and here).

However, this legislation will almost certainly suffer the same fate as the failed Congressional Review Act bid. Seemingly, the only way the Congress can effectively put an end to this awful regulation, the sole purpose of which is to pander to unions, is through the appropriations process by cutting off funds used to implement the ambush election rule. Excellent research conducted by former NLRB member John Raudabaugh shows that the NLRB workload is plummeting and it really doesn’t need as much funding as it is currently receiving. 

Since the NLRB’s creation, it has granted privileges to labor unions at the expense of workers, employers, and taxpayers. It is up to Congress to reform the agency so that labor relations can be conducted on a level playing field.