The past five years of the Obama National Labor Relations Board has been nothing if not interesting. For most of President Obama's time in office, the Board has been staffed below its full five-member complement. The slow peddling of the president's nominees brought the Senate to its first flirtation with the "nuclear option" and resulted in a case before the Supreme Court this term which could significantly restrict a president's authority under the recess appointments clause. With the confirmation of President Obama's nominees on August 12, 2013, the theater over appointments may have ended but the drama over the substance of the Board was set to begin again.
Between all of that legal and political fire (and perhaps adding fuel to it), the Board rolled out one of the most comprehensive and controversial rewrites of the rules regulating the timing and policing of union representation elections. Under longstanding rules, the Board works under a self-imposed goal to conduct a representation election within six weeks of a petition seeking an election. Despite complaints of undue delay, the Board has been meeting or exceeding its speedy election goals. Yet, those rules were changed on party line vote in April 2012 with the effect of shortening the election campaign period to as little as two weeks. The implementation of those rules has been stayed pending litigation over both the rules' substance and the process by which they were adopted. However, on December 9, 2013, the Board voluntarily dismissed its appeal of the district court's ruling that the adoption of the rules was flawed. That dismissal both killed the Board's 2012 rulemaking and opened the door for the newly confirmed Board to simply re-issue those rules without the procedural flaws.
The Board's heart was in the right place in attempting to bolster the chances that an election truly expresses the wishes of the voting employees. It is no secret that the percentage of the private sector workforce that is represented by a union has been steadily shrinking for decades. In 1973, approximately 24 percent of the private sector U.S. workforce belonged to a union. In 2011, that number stood at a mere 6.9 percent. Many in the labor movement attribute this erosion to employers' coercive tactics and threats during the average six-week representation campaign. The theory goes that if you shorten or eliminate the campaign, you shorten or eliminate the window for employer bad acts. The first attempt at implementing this theory was the failed attempt to pass the Employee Free Choice Act that would have effectively eliminated the secret ballot election and campaign. With insufficient support for a legislative change, attention turned to a regulatory fix that would shorten the campaign period. Thus, the Board's 2012's rulemaking was born.
And while the Board's heart might have been in the right place, its legal head was someplace else. The EFCA and the Board's 2012 rulemaking ignore a central feature of American labor law: the approximation of the democratic process through the union representation campaign and election. The six-week campaign provides a limited and focused window for employees to gather information and make informed decisions. And, this is not some mere post hoc justification for the campaign period -- the resolution of questions concerning representation through a clash of ideas was one of the central purposes behind the 1947 Taft-Hartley amendments to the original labor act. Not only has Congress weighed in, but the Supreme Court has repeatedly found that the First Amendment limits the Board's ability to remove democratic ideals of free debate and choice from the representation campaign. And, aside from the questionable legality of severely shortened election periods, social science research has shown voters in an election require campaigns of sufficient length -- six weeks minimum -- to gather and process the information necessary to make rational and enlightened decisions.
Rather than reflexively re-issuing the 2012 rulemaking or doubling down on the theory of shortened campaign periods, the new Board should rethink and take a different approach. Instead of reducing the information gathering period, the Board should ensure that the six-week period is free of unlawful coercion and is primed to provide employees with necessary information from both the employer and the union. The two most coercive employer tactics during a campaign are discharging union supporters during a representation campaign and threatening job losses if the union wins the election. The Board should find ways to combat those two evils directly rather than skimp on the democratic process. First, it could institute a temporary stay of an employer's ability to terminate or suspend an employee during the critical six-week campaign period except for health-and-safety related rule infractions. Second, the Board could require information-sharing whenever an employer predicts that the vote for the union will result in job losses or plant closure. By providing access to the data, the union and union supporters would be in a better position to fight speech with more speech.
Creating mechanisms to ensure free and open debate rather than removing or limiting such opportunities will protect and nurture the uniquely American method of union representation elections. By limiting the evil of coercion while permitting the speech, the Board would bolster the central promise of the Act -- the right of employees to freely choose whether they wish to be represented by a union -- or not.
Mr. Mastrosimone is an Associate Professor of Law at Washburn University School of Law in Topeka, Kansas. Prior to teaching, he was a Senior Legal Counsel in the NLRB's Office of Representation Appeals and to former NLRB Chairman Robert Battista. For an in-depth discussion of these issues, see Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech, 52 Washburn L.J. 473 (2013).
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