The extreme union bias of the Board has eroded stakeholder confidence, threatened business models and worker freedom, and made compliance difficult. The U.S. Court of Appeals for the D.C. Circuit recently called out the NLRB’s obvious pro-union bias, finding that “the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.”
But a new day is on the horizon. With a Republican in the executive office, a new majority has taken over the NLRB and there will soon be a fresh outlook from the office of the agency’s powerful general counsel. The new NLRB must quickly seize the opportunity to reverse some of the worst decisions and red tape put out by the Obama administration. This could be the start of bringing commonsense back to labor relations.
New Board members must consider revising the previous administration’s “ambush election” rule. This regulation overhauled how union elections are conducted, with the objective to give unions an advantage. The NLRB’s rule drastically shortens the time period for union organizing elections, possibly to as little as 10 days after a union files a petition. That gives employees little time to educate themselves on the pros and cons of unionizing.
As a matter of policy, the NLRB is instructed to ensure fair elections, free of coercion on the part of unions or employers. But limiting the union election process to as little as 10 days does not ensure a fair election, since workers will only hear from the union and employers have little time to tell their side of the story.
Worse, the ambush election violates worker privacy. Part of the rule requires employers to hand over workers’ private information—telephone number, email address, work schedules and home address—to a union once they file a petition for an election. This regulation does not give workers the control to opt-out of giving their personal data to a third-party union. Even the NLRB admits that workers’ private data could be used to “harass, coerce, or rob employees.”
Worker freedom was not the only target in the crosshairs of the past NLRB. A decision made by the Board overhauled the definition of “joint employer.” Its new definition dramatically changed when a company may be held liable for labor violations by other employers they have no control over. This threatens business models like franchising and contracting.
Research by the American Action Forum estimates that, without reform, the NLRB’s new joint employer standard could result in 1.7 million fewer jobs. In part, this would occur because it would discourage large employers from outsourcing non-core functions to small businesses. And bringing more functions in-house at higher labor costs will result in fewer jobs and fewer opportunities for entrepreneurs.
The NLRB has also used its power to shape labor relations policy to make the workplace less civil. The Board has held in a number of decisions that employees who shout obscenities or racist slurs do not lose protection under the National Labor Relations Act. Under the Act, employees are afforded what is known as “protected concerted activity,” a legal concept that protects workers from employer retaliation when they come together to improve workplace conditions. It is important to protect workers’ rights, but not to the extent of permitting racist and obscene behavior at work.
The new NLRB has an opportunity to reserve many of the misguided actions of the previous administration. However, due to the Board’s composition, the only real way to make commonsense labor relations policy stick is for Congress to pass legislation.
While it is important for the NLRB to restore longstanding precedent that was upended, Congress needs to pass legislation that ensures worker freedom and relieves job creators from unnecessary burdens.