Ambush Election Prevention

Imagine voting in a presidential election where one candidate can campaign for a year and the other is only told he is running a week before Election Day. As absurd as that sounds, that is precisely the choice that President Obama's National Labor Relations Board (NLRB) is trying to impose on American workers.

The NLRB is the supposedly neutral federal agency charged with judging private sector labor law cases and interpreting labor statutes. However, under Obama, it has gone far beyond that mission, to propose sweeping rule changes favorable to unions.

Some members of Congress are focused on this problem and are trying to do something about it. On Wednesday, the House of Representatives is set to vote on the Workforce Democracy and Fairness Act (H.R. 3094). The bill, introduced by House Education and the Workforce Committee Chairman John Kline (R-Minn.), would prevent these "ambush" elections by requiring all union representation elections to occur no less than 35 days following a union's election petition to the NLRB.

The Act would also allow workers to choose how a union can contact them. Currently, employers are required to give unions information such as a worker's home address, which can lead to intimidation by organizers.

The vote on H.R. 3094 could not be timelier. Also this week, the NLRB is scheduled to vote on its own proposal to allow for ambush elections. The NLRB's proposed rule change would shorten the period between unionization elections. Currently voting for unionization takes an average of a month. If NLRB has its way, that could be cut down to little more than a week.

The shortened period will mean that an employer would have only about 10 days to respond to an organizing drive, including hiring a lawyer and making the case to employees about what unionization will mean to the company. Workers would only get one side of the story. During a unionization campaign, the union can campaign secretly for months, while the employer may only learn about the campaign when the union files for an election with the NLRB.

The NLRB is trying to rush the regulation through before the end of the year, when NLRB member Craig Becker's recess appointment ends thus killing the board's ability to make decisions.

Becker's nomination to the Board was so controversial that it could not overcome a Republican filibuster in the Democrat-controlled Senate, and for good reason. A former Service Employees International Union lawyer, he has written that employers should have no say in the unionization process — which appears to be the true motivation for of the proposed rule.

When Becker steps down, the Board's membership will drop to two, and the Supreme Court has ruled that the Board needs a quorum of at least three members to make a decision on any cases or make any rules.

NLRB Chairman Mark Pearce is pulling out all the stops to ram the regulation through. The NLRB's lone Republican member, Brian Hayes, complains that, while the proposal has garnered nearly 66,000 comments, his fellow Board members have kept him in the dark regarding responses to the comments and any changes to the proposed rule that differ from the original draft, reports The Wall Street Journal.

Last week, Hayes wrote to Rep. Kline, saying the two Democrat-appointed members had engaged in a series of irregularities in trying to ram through the ambush elections rule. Specifically, says Hayes, his fellow Board members:

  • Disregarded precedent regarding election timelines.
  • Conducted the rulemaking process in secret without regard to differing opinions.
  • Diverted staff resources to rush the decision through; and
  • Told Congress there was no timetable for voting on the rule when there actually was.

As a result, the Democrat-appointed Chairman of the NLRB said Hayes threatened to resign as a last resort to stop this power grab, by denying the Board a quorum. (Former NLRB Chairman Peter Schaumberg suggests that Hayes may be able to deny the Board a quorum simply by abstaining on that vote.) That may seem like a radical move, but far more radical are the efforts by the Board's majority to ram through the quickie elections rule.

The NLRB's actions underscore the Obama administration's disdain for Congress and its willingness to circumvent the democratic process. Even if the NLRB's push for ambush election were to fall flat, the people's elected representatives should reclaim their constitutional lawmaking authority. This won't be the last time the NLRB is likely to try to usurp it. And this won't be the last time a liberal president will try to appoint a union partisan to the Board.

Obama came into office as the most pro-union president in decades, having gotten significant support from organized labor in his 2008 campaign — support he will need for his 2012 reelection effort.

For organized labor, the expected big payoff was in labor law changes to tilt organizing rules in unions' favor, most notably the so-called Employee Free Choice Act, which would have effectively replaced secret ballots in union organizing elections.

Unable to get such pro-union legislation through Congress, the president turned to regulatory agencies. His administration's approach to labor policy can be summed up as, "If at first you don't succeed, change the rules."