BURR: Labor-relations agency goes rogue

This article originally ran in the December 5 edition of the Washington Times:

Having lured in viewers with the promise of an open meeting but then cloistered themselves away in another government conference room and broadcast their discussion by closed-circuit television last week, two members of the National Labor Relations Board (NLRB) pushed through troubling new union-organizing rules that are favorable to big labor but harmful to both employees and employers.

The decades-old agency, which is charged with enforcing the National Labor Relations Act guaranteeing the right of workers to join or not join a union, is down to just two Democratic appointees and one Republican. Heading into last Wednesday’s meeting, the Democratic duopoly were tight-lipped about their plans for a new rule, but the anti-employer, anti-employee outcome spoke volumes about whose agenda is being enacted at the board.

The board proclaimed that it would not include a provision in its final rule to require that pre-election hearings take place within seven days. Previously, when a union was attempting to organize a workplace, the employees had an average of about 38 days before an election. Instead, the board reduced the period to 10 days. Such a short time would mean employees would have virtually no chance of getting enough information before casting their vote, and small businesses would be severely limited in educating their employees without running afoul of the agency’s often arcane and complex rules.

It took public outcry, including many of the 65,000-plus public comments the board received, to cause the agency to dispense with its plan for a seven-day limit and not require employers to disclose employees’ phone and email addresses, as it had planned originally. However, the board said it would impose new rules that would substantially limit the issues an employer could raise in the pre-election hearing and curb an employer’s right of appeal. As a result, in many cases, neither employers nor employees will know which employees will be in any final bargaining unit prior to the vote, and the election period likely will be chopped down.

What may have seemed like a minor victory for employees and employers was immediately turned on its head, however, as NLRB member (and longtime union strategist and attorney) Craig Becker said his allies at the board field offices should be able to implement much of the original proposed rule, despite the more “streamlined” approach, through agency “best practices.” Presumably, Mr. Becker means that even without the formal requirement of a seven-day hearing, board staff can still impose a 10-day election period. It’s unclear what this means for disclosure of employee phone numbers and email addresses.

So it appears that despite all the pomp and circumstance of the board’s no-so-open meeting, we still may be left with a 10-day election and at best, a 20-day hearing.

Consider the real-world scenario for a business owner, who scrambles to figure out his legal rights and what he can legally say before the 10 days are up. It is illegal for employers, unlike unions, to promise better wages or benefits if employees decide not to join the union, but he may have an opportunity to tell his side of the story to employees and dispel some of the unrealistic promises made by union organizers.

As anyone can tell, those rules are rigged to favor big labor and, according to one of the board’s own members, these one-sided rules are being forced through in an outcome-driven process that goes against decades of the NLRB’s internal standards and procedures.

Recently, the lone Republican NLRB member, Brian Hayes, took an unusual step of sending a letter to Congress saying Democrats on the board “plainly intend to contravene the board’s own internal rules regarding the circulation and issuance of majority and dissenting opinions.” By this, he meant the rules were conceived and promulgated without his input.

Mr. Hayes‘ letter confirms the worst fears about the overt, special-interest political agenda of the NLRB. Many of its decisions have tilted the scales so far as to effectively drop the pretense of fairness. The goal is simply to manipulate the rules of the game in order to increase unions’ market share. Those same unions bragged in the last election about the hundreds of millions of dollars they spent to get President Obama elected.

Employers can’t do their job when they are under assault by unelected bureaucrats tipping the scales on behalf of unpopular special interests. Mr. Obama needs to rein in his rogue NLRB, and that agency’s members need to reverse course on their harmful rule.

Geoffrey Burr is chairman of the Coalition for a Democratic Workplace.