Breaking: Union rule despised by right-wingers now roaring back to life

A rule that Romney scorched and judges killed is being revived by Obama appointees

Published February 5, 2014 1:45PM (EST)

Mitt Romney                          (Reuters/Jonathan Ernst)
Mitt Romney (Reuters/Jonathan Ernst)

A proposal to streamline union elections that was slammed by Mitt Romney and scrapped by a Woody Allen-quoting judge is being revived by the National Labor Relations Board, the agency announced Wednesday morning.

"Unnecessary delay and inefficiencies hurt both employees and employers," NLRB chairman Mark Pearce said in an emailed statement. While emphasizing that "No final decisions have been made," Pearce argued the proposed changes "would modernize the representation case process and fulfill the promise of the National Labor Relations Act." The new move by the NLRB, the federal agency charged with interpreting and enforcing private sector labor law, was made by a 3-2, party-line vote. It sets in motion a multi-month process, including an April public hearing, leading up to a final vote.

By changing how challenges to voter eligibility are handled, the proposed rule change has the potential to shorten the period between when non-union workers petition for a government-supervised election to win union recognition, and the date when the election actually takes place. Then-presidential contender Mitt Romney slammed the proposed changes in 2011, charging that Obama’s “out-of-control labor board continues to trample on the rights of workers, the interests of job creators, and the rule of law” and would “force employees into ‘quickie’ union elections” and thus “benefit only union bosses, while preventing employees from making an informed decision about unionization and preventing employers from challenging illegal activity.”

The business lobby made similar arguments, and the Chamber of Commerce successfully sued to block the change. Without assessing the merits of the Labor Board’s proposal, Judge James Boasberg ruled in 2012 that “the rule was adopted without the statutorily required quorum” of three members “present,” because GOP member Brian Hayes “simply did not show up” for an electronic vote. If Hayes had voted against the rule, it would have passed 2-to-1. “According to Woody Allen,” Boasberg noted at the start of his decision, “80 percent of life is just showing up.” The D.C. Circuit Court of Appeals dismissed the NLRB’s appeal last December. But by paving the way for approval of a full complement of NLRB members, Senate Democrats’ November move to curb the filibuster made it more feasible for the NLRB to introduce the election rule (and perhaps an also-stymied know-your-rights poster mandate) all over again.

Unions have long charged that the NLRB election process is riddled with opportunities for employers to delay, gerrymander and intimidate workers – concerns that have led some unions to largely abandon the process in favor of pressure campaigns to compel companies to agree to alternative paths to union recognitions. Organized labor hoped that by reducing the period of time between petitioning for an election and holding one, the rule change would at least marginally reduce the amount of legal or illegal pressure workers could be subjected to. According to research by Cornell scholar Kate Bronfenbrenner, in the lead-up to at least two-thirds of NLRB elections, employers forced workers to attend one-one-one, mandatory anti-union meetings with management at least once a week.

But organizers and academics note that employers are often aware of, and campaigning against, union drives long before workers petition for an election. Following the 2011 vote, pro-labor Columbia political scientist Dorian Warren described the proposed rule change as “not radical in any sense,” and added, “Who knows how much difference, if any, it will make.” As I’ve reported, one anti-union firm urged potential clients on a conference call to address the threat of faster elections by scheduling more frequent mandatory anti-union meetings: at least five during what it estimated would be an average 24-day lead-up to an election.

The version of the election rule change being proposed by the NLRB is substantively the same as the one first offered in June of 2011, not the narrowed version approved in the later-scrapped December vote. That means it includes provisions, like a requirement that more employee contact information be provided to union organizers, that the Board had held off on pursuing amid the ensuing business pushback.

By Josh Eidelson

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Barack Obama Courts Labor Board Law Mitt Romney Nlrb Unions