Workplace Democracy Gets Ambushed

Peter Schaumber

July 29, 2015

Wall Street Journal

You may have heard of the National Labor Relations Board’s new “ambush election” rule—so-called because it hurriedly schedules union elections within as little as two weeks, depriving employers of the time needed to learn about the union and express their views to employees.

But what you may not know is that the rule requires an employer to provide union organizers with the personal cellphone numbers and email addresses of its employees before they vote in a union election. So much for the right to privacy.

It doesn’t seem to matter to the Obama-era NLRB that a worker may have provided this personal information on condition that it be kept confidential and used only in an emergency. Nor does it matter to the board that union organizers may use the information to bombard the worker with pro-union messages and demands anywhere, anytime.

The NLRB defended its new disclosure requirement by claiming that there has been no evidence of union “abuse of voter lists” in the 50 years that the board has required they be handed over to unions. But that depends on what you mean by “abuse.”

On Oct. 1, 2008, two employees at the Boulder City Hospital in Nevada complained during a union-organizing campaign that they were being harassed to “sign up for the Union.” In response, the hospital posted a reminder of its anti-harassment policy.

Seems reasonable enough. Yet the NLRB—with the current chairman, Mark Gaston Pearce, in the majority—found that the hospital’s posting was an “unfair labor practice.” According to the board, “persistent union solicitation even when it annoys or disturbs the employees” may be considered harassment to some but cannot be interfered with by an employer or its representatives.

The NLRB rejected calls that workers be allowed to opt out of the requirement that their personal contact information be disclosed to the union. Demonstrating a callous disregard for the rights of workers who are not actively pro-union, the board said the new disclosure requirement “maximizes the likelihood that all voters will be exposed [to messages they] may not be predisposed to.”

The rule also transforms what has been a largely informal pre-election process aimed at helping the parties identify and resolve issues into a formal, adversarial one. The rule requires employers to complete a written “Statement of Position” form on all contested election issues within as few as seven to eight days after the employer is served with the union’s election petition. These can include complex, arcane legal issues that most employers are unlikely to know anything about.

The most pernicious impact of this change will be on smaller employers. Without experienced labor counsel, they might unknowingly waive their right to challenge issues important to the workplace, such as whether the union is entitled to file a petition and whether the size of the “bargaining unit”—the group of employees the union seeks to represent—is appropriate. A unit that is too small threatens to have a detrimental impact on non-bargaining-unit workers, involving them in workplace disputes, even work stoppages, in which they have no interest. Making matters even more unfair, employers are not allowed to amend their Statement of Position forms without a showing of “good cause.”

The new rule also guts the significance of the pre-election hearing that the Supreme Court has held was intended by Congress to give all parties “full and adequate opportunity to present their objections.” The rule does this by postponing until after the election consideration of fundamental pre-election issues, such as who is eligible to vote.

This may result in workers voting to be members of a bargaining unit that may be transformed after the election into something very different. This is analogous to workers voting for one candidate but getting another. If, after the election, the unit is certified by the NLRB over the employer’s objections, the employer can continue to contest the issue but only if it refuses to bargain with the union over the terms of a collective-bargaining agreement, which will trigger litigation.

The employer may reasonably hesitate before doing so, without regard to the strength of his position. Under decades-old NLRB law, if the employer loses the litigation, the union can require that any changes made in the terms and conditions of employment since the election was certified be undone. This can include far-reaching changes that will be incredibly costly to undo, like requiring the employer to reinstate a production line that was discontinued during the litigation due to market conditions.

For the Obama NLRB, this is the new normal for workplace democracy: disclosure requirements that do not honor worker privacy and election procedures that skew results in favor of unions.

Lawmakers in the House and Senate have introduced legislation to protect workers and employers by rolling back the overreaching ambush-election rule. The bills don’t stand a chance of becoming law while President Obama occupies the White House. But with a new president and perhaps less biased NLRB appointments in 2017, change should come.

Mr. Schaumber was a member of the National Labor Relations Board from 2002-10 and chairman in 2008.

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Data Shows Ambush Election Ruling Helps Unions

Hector Barreto

July 28, 2015

Washington Examiner

The ambush election ruling is perhaps one of the most egregious National Labor Relations Board (NLRB) rulings to date, significantly speeding up the unionization process while providing no tangible benefit to American workers.  With union membership steadily on the decline—from nearly one-third of workers in the 1960s to one in ten American workers today—it appears as though the union-backed NLRB will stop at nothing to increase union rolls and pad big labor bosses’ pockets.

As expected, since the ambush election rule went into effect in April, the number of petitions for elections to unionize rose dramatically.  In the first three months of the rule taking effect, case filings increased by 15 percent.  According to data provided by the NLRB, from April to July, election filings totaled 773, up from 668 during the same period last year.  Since April 14, 20 ambush elections have been held, taking an average of 25 days.

The shortest election to take place, according to National Law Review, was in Region 22 in Newark, New Jersey, where an election was conducted in just 9 days.  In this instance, employers and employees had just over a week to educate themselves on the facts.

Historically, employers had an average of 38 days—a little over a month—to combat and plan for a union election.  In fact, in 2014, more than 95 percent of these elections occurred within 56 days.  The extra time was important, allowing small companies who don’t have in-house counsel to hire an outside legal expert to ensure they are complying with labor laws and election practices.  Before this rushed ruling, employers had that extra time to speak with their employees and explain what unionization would mean for their individual workplace, and for their paychecks.  But not anymore; the ambush election ruling stifles an employers ability to speak freely with their workers and increases the likelihood that a workplace will unionize.

History shows that the shorter the amount of time an election takes place after the petition is filed, the greater the likelihood that a company will unionize.  From 2004 to 2014, unions won 86 percent of elections that took place in less than 21 days, while they only won 60 percent of those that occurred within 36 to 42 days.

Workers should have the right to make informed choices when casting a ballot in workplace elections, just as they do when they cast a ballot for their government officials.  Ambush elections seek only to benefit union bosses, who often use coercion and misinformation in order to get a favorable vote.  Workers shouldn’t be forced to make rash decisions without having time to gather the facts.

The new rules also violate worker privacy.  Previously, employees were only required to provide names and home addresses.  Now, however, they must provide all contact information they have for their employees, including personal email addresses and both cell and home phone numbers.  Union bosses now have the ability to harass you and your family at home, in hopes of getting a favorable vote.

Fortunately, business-friendly members of Congress included provisions in both the House and Senate appropriations bills earlier in July to defund the NLRB and took action to block the board from implementing these rules.  If these provisions remain in these “must pass” appropriations bills, President Obama may have little choice but to sign them.  I applaud Congress for coming together in a bipartisan way and attempting to roll back this NLRB overreach, and encourage them to keep at it.

Backed by taxpayer dollars, the NLRB was originally created to protect workers, not tip the scales in favor of union membership.  But the Obama administration’s NRLB has proven to be one of the most ideological in America’s history, stifling employers’ free speech, hurting workers’ free choice, and invading employee privacy.  It’s time to rein in the board’s power.  Workplace elections, like all elections in our American democracy, should be fair, impartial, and transparent.  Unfortunately, thanks to this new ruling, they are anything but.

Hector Barreto is the former head of the Small Business Administration.

 

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For The NLRB, Unionization Is The End That Justifies Any Means

Peter Schaumber
June 30, 2015
The Washington Times

When the NLRB chairman claimed in a press release that the agency’s controversial new election procedures would give “businesses and workers a process they deserve that is effective, fair, and free of unnecessary delays,” the devils in hell must have blushed. The Board’s new “Ambush Election” rule has nothing to do with fairness. It was adopted to limit, if not eviscerate, an employer’s protected speech on the issue of unionization before an election and to stack the deck in favor of a union outcome.

The rule rewrites the Board’s election procedures to shorten the time for a Board election from a median of 38 days with 94% of all elections taking place within 56 days—a time-line considered “remarkable” by the first Obama-appointed Acting General Counsel—to only 13 days.

Although preventing “unnecessary delay” is the principal reason for the rule, the Board does not examine the relatively few elections that have taken too long and the reasons why. Instead, it slashes time from all pre-election procedures and orders that all elections take place “at the earliest date practicable.”

The Board bobs and weaves indecorously with half-truths to explain why the rule provides no time for a debate on the most important workplace decision an employee is likely to make.

For example, the Board informs the public that the “current [now former] rules and regulations do not set forth any such time periods [either].” The former rules did not set aside a specific time for a pre-election campaign, but they allowed time for one. For example, 25–30 days was provided between the order for an election and the election. Claiming that “[t]his delay served little purpose,” the Board summarily removes it, well aware that it gave the parties and the employees time to debate the issues.

And to address the argument that it is interfering with protected employer speech, the Board responds that it does not “change any rules regarding speech,” while failing to acknowledge that it does everything it can to limit the time within which that speech can occur.

The NLRB is controlled by committed members of a labor movement threatened by a continuing loss in union membership. They sincerely believe that unionization is the only avenue available for workers to achieve equal dignity and respect and are determined to turn the decline around.

Union decline in the private sector is the result of a combination of political, social, and economic factors—mostly beyond their control, but Big Labor and movement members ignore that reality and claim that the cause of the decline is intensified employer opposition.

That claim is the unstated reason for the Ambush Election rule, and it is indefensible for two reasons. First, lawful employer opposition benefits the workplace by allowing for a more informed electorate, and it is expressly protected by law that contemplates an “uninhibited, robust and wide-open” debate on labor issues.

If the employer steps over the line, the same law authorizes the Board to set the election aside. Second, the research Big Labor consistently relies on to support its claim of increased unlawful employer opposition is dubious at best—specifically on unreliable anecdotal evidence and unproven allegations of misconduct.

For example, Professor Kate Bronfenbrenner’s conclusions are based on interviews of 562 union agents. Not surprisingly, her conclusions are inconsistent with the Board’s statistics, which show a significant drop in employer unfair labor practices since 1980.

The Board denies that the rule’s goal is to curtail employers’ protected speech. “[T]he dissent acknowledges—as it must—that the final rule expressly disclaims any such purpose.” Translation: It is so because we say it is so.

But the day has long past when representations of the Obama NLRB can be taken at face value. The second reason given by the Board demonstrates why.

According to the Board, just because some commentators—”someone, somewhere”—claim that silencing the employer is the reason for the rule, that does not make it so. But in fact, two commentators are among the principal authors of the Ambush Election rule—former Board members Craig Becker and Nancy Schiffer—both have forcefully advocated for eliminating the employer from the election process, claiming that employer participation intimidates employees and denies them free choice.  Before he was named to the Board, Becker pushed for changes in the Board’s election procedures to achieve that very result.

If the courts look beneath the surface of the Board’s justifications for the Ambush Election rule, they will not be deceived, and the rule will be denied enforcement in whole or in part. This outcome is in the interests of workplace democracy and the nation as a whole.

Peter Schaumber was a former Chairman of the NLRB appointed by President George W. Bush.

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Senate Appropriations Subcommittee Stands Up To The NLRB

WFI

FOR IMMEDIATE RELEASE                                                   CONTACT: Ryan Williams
June 29, 2015                                                                                              202-677-7060

Senate Appropriations Subcommittee Stands Up To The NLRB
WFI Applauds The Efforts By The Senate To Fight Against Big Labor’s Anti-Worker Agenda

Washington, D.C. (June 29, 2015) – The Workforce Fairness Institute (WFI) issued the following statement in response to the Senate Appropriations Subcommittee’s actions to cut the National Labor Relations Board’s (NLRB) budget:

“We applaud the recent efforts by the House and Senate for using the power of the purse to defund pro-union NLRB labor regulations in an effort to protect the rights of American workers and businesses” said Heather Greenaway, spokesperson for the Workforce Fairness Institute (WFI).   “The ambush election rule unfairly penalizes employers and employees and would have widespread implications for small and large businesses alike.  Employers would be blindsided by these quickie elections and employees would have no time to understand the unintended consequences of joining a union, meanwhile, union organizers, who are trained in this regard, may have spent months canvassing before even filing their election petition.”

The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace.  To learn more, please visit: http://www.workforcefairness.com.

To schedule an interview with a Workforce Fairness Institute representative, please contact Ryan Williams at (202) 677-7060.

 

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The House Stood Up To The NLRB, The Senate Should Too

Hector Barreto
June 22, 2015

Fox News Latino

Using the power of the purse, Congress has taken yet another positive step to push back on the anti-business policies of the union-backed National Labor Relations Board (NLRB). The House Appropriations Subcommittee this week took a stand against NLRB’s newly-enacted ambush election rule, which took effect on April 14, by slashing funding for the rule’s implementation. The subcommittee also took steps to ensure that the rights of workers to make informed, non-coerced decisions in union elections remain intact and that the overall privacy of employees is protected.

The ambush election rule was enacted by the NRLB in order to coerce employees to unionize in a short window of time, springing elections on unsuspecting employers in a little over a week. Previously, the window was, on average, 38 days between when a petition was filed to the election. Under the new ruling, however, the window is as few as 11 days.

NLRB data from past elections show that, from 2004-2014, unions won 86% of elections that took place under 21 days, compared to the only 60% that took place over a longer timeframe (36 to 42 days). The shorter the election window, the greater likelihood of unionization. It’s no wonder the union-driven NLRB wants to speed the process up; since union membership has been steadily sliding into decline.

The first month’s numbers are in, and as the business community warned, elections to unionize workplaces have sprung up at an alarming rate. From April 14 to May 14, there was a 32 percent increase in the number of petitions filed. This trend will likely continue, with the shortened rule encouraging unions to file petitions even when they think their chances of success are small. Employers have less time to hire outside labor counsel or educate their workers on the unintended consequences of unionization, and employees get confused when faced with coercion and misinformation from highly organized union campaigns.

Additionally, the NLRB’s new policy violates workers’ basic right to privacy. The rule gives blanket access to union bosses of everything from an employee’s personal contact information, home address, and job classification, to shift schedules and work locations. Union heads can now camp out on your doorstep, bullying you into the collective.

Fortunately, pro-business members of Congress have been working to stop these unilateral mandates from an unelected board. The House and Senate passed widely-supported, bipartisan legislation in March that would have rolled back the NLRB’s reach and prevented the ambush election rule from taking effect. Unfortunately, the legislation was quickly vetoed by President Obama.

This week’s actions to defund the NLRB’s new mandate represent the second attempt that Congress has made in support of workers’ rights (and they say they can’t get anything done!). Hopefully, Congress will be able to wield the power of the purse to sway the Administration to repeal the NLRB’s misguided policies that serve not to protect the worker, but to pad union rolls.

The efforts by the House Appropriations Subcommittee to defund the NLRB should be applauded, and the Senate should follow suit.  It’s time to stop an unelected board of union bosses and bureaucrats from deciding the fate of millions of small business owners and workers across the country.

 

Hector Barreto is the former administrator of the Small Business Administration (SBA).

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House Appropriations Subcommittee Takes A Stand Against The NLRB

WFI

 

FOR IMMEDIATE RELEASE                                             CONTACT: Ashley Pratte
June 17, 2015                                                                             202-677-7060

 

House Appropriations Subcommittee Takes A Stand Against The NLRB
WFI Applauds The Efforts By The House To Protect Businesses And Workers

Washington, D.C. (June 17, 2015) – The Workforce Fairness Institute (WFI) issued the following statement in response to the House Appropriations Subcommittee’s actions to cut the National Labor Relations Board’s (NLRB) budget:

“While the NLRB was created with the intention of protecting American workers from unfair labor practices and arbitrating disputes in workplace union elections, it has since turned into an organization run by union bosses pushing Big Labor policies. The ambush election ruling is nothing but an attempt to increase union membership rolls,” said Heather Greenaway, spokesperson for the Workforce Fairness Institute (WFI).   “Workers have little time to understand the unintended consequences of joining a union, meanwhile, union organizers, who are trained in this regard, may have spent months canvassing before even filing their election petition. The NLRB’s own data shows that the shorter the election time, the great likelihood a workplace will unionize.   We applaud the efforts by the House to slash funding for the NLRB in an effort to protect the privacy and rights of American workers and businesses; we hope the Senate will include similar provisions.”

The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace.  To learn more, please visit: http://www.workforcefairness.com.

To schedule an interview with a Workforce Fairness Institute representative, please contact Ashley Pratte at (202) 677-7060. 

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The Harmful Effects of the Ambush Election Ruling

Heather Greenaway
June 16, 2015
The Daily Caller 

Big Labor is at it again. Predictably, and as many warned, since the enactment of the National Labor Relations Board’s (NLRB) “ambush election” ruling, elections to unionize workplaces have sprung up at an alarming rate. The new election rule took effect on April 14 – and in the first month, from April 14 to May 14, there was a 32 percent increase in the number of election petitions filed.

While the NLRB was created with the intention of protecting American workers and arbitrating disputes between employees and management, it has since turned into an organization run by union bosses pushing Big Labor policies. The ambush election ruling is par for the course for the Obama administration, which stops at nothing to increase union membership rolls.

The rule shortens the amount of time employers have to prepare for a union election. Historically, employers have had an average of 38 days, or a little over a month, to hire outside counsel, discuss ramifications of unionization with their workforce, and overall combat unionization efforts. Under the newly enacted ambush election rule, however, they now have as few as 11 days, or a little over a week, in which to prepare.

Workers have little time to understand the unintended consequences of joining a union, meanwhile, union organizers, who are trained in this regard, may have spent months canvassing before even filing their election petition. The NLRB’s own data show that the shorter the election time, the great likelihood a workplace will unionize.

In a rare moment of bipartisanship, Congress recognized the NLRB’s overreach and passed legislation in March that would have thwarted the decrease in union election times. Obama, however, used his veto pen for only the fourth time in his presidency, striking the legislation down. This issue was that important to him, proving the Obama administration is anti-business, as usual.

His veto wasn’t the first time Obama has interfered on behalf of Big Labor. In 2012, during a brief break in the Senate’s pro forma meeting schedule, President Obama unilaterally filled three vacancies to the NLRB, calling them “recess appointments.” These unconstitutional appointments were later unanimously rebuked by the U.S. Supreme Court, as the president’s appointee power rests on the advice and consent of the Senate. The Supreme Court then invalidated a year and a half’s worth of NLRB decisions – over 100 – during that prior year and a half.

The ambush election rule is going to have a sizable impact on small businesses and workers’ rights. The trend will continue – we will see a surge in election petitions as confusion swirls among business owners. Steve Bernstein, a top labor attorney for the labor and employment law firm Fisher & Phillips LLP, was recently interviewed by the Washington Free Beacon on the potential effects. He explained how these rules will entice unions to file petitions, even when they think their chances of winning are low.

Before the new ruling, Bernstein states, unions “were unlikely to file [petitions for elections] without at least 60 or 70 percent interest, but now they may be more comfortable filing minority petitions,” banking on the increased speed of elections to help them blindside employers and employees. Employers are right to be concerned. In the first month alone, the median time for filling petitions for elections decreased 40 percent, from an average of 38 days to 23.

If employers are constantly on guard against the threat of an ambush election potentially restructuring their company, how can they focus on running a business, innovating, and creating jobs? We need to be focused on growing our economy, not putting up yet another obstacle for business owners and workers’ rights.

 

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The Obama Administration Stops At Nothing To Reward Union Bosses

Hector Barreto
May 14, 2015
Washington Examiner

Big Labor and the Obama administration scored a big victory on May 5. It happened when Senate Republicans failed to secure a two-thirds majority to override the president’s veto of legislation that would have reversed the National Labor Relations Board’s (NLRB) “ambush” election rule.

The “ambush” election rule took effect on April 14, and with this ruling, union bosses — desperate to save their declining membership — now have valuable new tools to coerce and intimidate workers into joining their ranks.

The new rule will significantly shorten the window of time in which an election to unionize can be held — from an average of 38 days now to as few as 11 days after a petition has been filed. Shorter election times mean a much greater likelihood of unionization. Data from the NLRB show that from 2004 to 2014, unions won 60 percent of elections that took place between 36 and 42 days, but 86 percent of elections that took place under 21 days.

American small businesses, which often lack the infrastructure and support staff to ensure compliance with new and complex changes, will be acutely affected by the ruling. Employees now have much less time to educate themselves about unionization, while employers will be forced to submit a formal statement of position within seven days and will not be able to amend their statement before a representation hearing.

The new rules also eliminate an employer’s automatic right to a post-election review. Instead, employers are left to trust that the results are accurate and fair.

Union organizers can now approach any employee for their vote in unionizing the workplace without verifying that they are even eligible to vote. Incredibly, eligibility won’t be decided until after an election takes place.

These new NLRB policies also represent a serious violation of worker privacy. Union bosses now have blanket access to employees’ personal information, including phone numbers and email address, job classifications, shift schedules, work locations and home addresses. Employers can no longer protect personal employee information, and there’s no reason to think labor organizers will be shy about using it. In some instances, labor organizers have been known to camp out in front of workers’ homes to attempt to bully them into joining the union.

On the brink of irrelevance, labor unions bankrolled President Obama’s election and re-election campaigns, and now the administration is doing everything in its power to pay back its labor benefactors.

American employers can’t afford the aggressive, underhanded tactics made possible by the “ambush” elections ruling and other anti-competitive rules and regulations.

At a time of unprecedented global competition, and during an increasingly challenging and unpredictable economic environment, one would hope that the Obama administration would focus on supporting innovation and responsible risk-taking, while also standing by the basic rights of workers and business owners. Unfortunately, however, in trying to reward union bosses, this administration appears determined to pursue the exact opposite.

Hector Barreto is the former administrator of the Small Business Administration (SBA).

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