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Over the past several months, the National Labor Relations Board (NLRB) has issued a series of controversial regulations and rulings that threaten to upend long-established federal labor relations law in favor of unions at the expense of employers and employees. The new rules are similar to key elements of the Employee Free Choice Act “card check” legislation rejected by Congress in 2007 and have been dubbed “backdoor card check” or “Card Check 2.0” by critics.
In December 2011, the NLRB issued regulations requiring “ambush” union organizing elections to be held as little as 14 days after a union files a petition, down from a current median of 38 days for most elections and an average 101 days for those where legal challenges are filed. The move follows an earlier 2011 ruling allowing the creation of micro-unions where a union could selectively organize certain departments or employees within a company. Another pending proposal aims to require companies to hand over workers’ home addresses, personal telephone numbers and e-mail addresses to union organizers.
The NLRB’s actions have all come on party-line votes pitting Democrats on the panel against its sole Republican. In January 2012, President Obama used a “recess” appointment to place two new Democrats and one Republican on the board to replace members, whose terms had expired, leaving a 3-2 pro-union majority. With one of the new appointees a former union attorney, business groups are concerns that further anti-employer plans are in the works.
So just to recap, the President has circumvented the nomination process by using recess appointments for board members that Senate has rejected. Then using this board, the Administration has advanced an agenda that seeks to stifle employer free speech rights (ambush elections) and to enable a small cohort of workers to establish a union in a workplace even if a majority of employees are opposed (micro-unions). And coming soon will be a plan to provide union organizers with employees’ personal contact information to ensure that workers and their families will be confronted at home with union pressure campaigns.
Efforts to Bring the NLRB under Control
Senate Health, Education, Labor and Pensions Committee Ranking Member Mike Enzi, R-Wyo., has introduced legislation that would use the Congressional Review Act to overturn the NLRB’s “ambush election” rule. Unlike typical bills that require 60 votes to clear procedural hurdles, use of the Congressional Review Act would require only a simple 51-vote majority to stop the NLRB. Enzi is circulating a “Dear Colleague” letter among fellow senators seeking their support, and is hoping to schedule a vote before the regulations take effect April 30.
Workforce Democracy and Fairness Act
Anticipating the ambush election regulations, the House passed the Workforce Democracy and Fairness Act in November on a bipartisan vote of 235-188. Sponsored by Education and Labor Committee Chairman John Kline, R-Minn., the bill would overturn the ambush regulations and the micro-unions ruling, and also block the proposal to turn over employee contact information.
In August 2011, the Employee Rights Act was introduced by Senator Orrin Hatch, R-Utah, and Representative Tim Scott, R-S.C. Among other provisions, the bill would require that at least 40 days pass after a petition is filed before an organizing election could be held, and preserves the current right to a secret ballot rather than allowing elections to be decided by the “card check” process of merely signing a union card.
Retailers need to contact their members of Congress – especially members of the Senate who will be asked to vote on the Enzi legislation – and urge them to act on these important pro-jobs bills as soon as possible. Organized labor continues to target traditionally non-union industries such as retail for expansion. The higher costs and workplace disruptions associated with unionization would seriously hamper retailers’ efforts to preserve and create badly needed jobs in America.
Lawsuit
NRF leads the lobbying committee of the Coalition for a Democratic Workplace, which filed a lawsuit in U.S. District Court in Washington in December to overturn the ambush election regulations. The lawsuit argues that the regulations violate both the Constitutions and the National Labor Relations Act, and seeks an injunction putting them on hold while the case is heard in court.
The History of Card Check
The Employee Free Choice Act, considered in 2007, would have effectively eliminated the decades-old National Labor Relations Act requirement that union representation be decided in secret ballot elections supervised by the NLRB. Instead, the NLRB would have been required to recognize a union if presented with authorization cards signed by a majority of employees.
In addition, the legislation would have cut off negotiations over a company’s first contract with a newly formed union if agreement had not been reached in 120 days, instead requiring binding arbitration and giving government officials power to set wages and employment conditions. Micro-bargaining units and a number of other provisions to make union organizing easier were also included.
NRF identified EFCA as a top threat to the business community after unions helped Democrats win both chambers of Congress in 2006, and NRF helped create the Coalition for a Democratic Workplace to lobby against it. As expected, the legislation received fast-track treatment, passing the House less than a month after it was introduced in February 2007, and coming within nine votes of clearing a key procedural hurdle that likely would have led to Senate passage that June.
The NRF and its allies successfully blocked EFCA during the 2009-2010 session of Congress but it remained unions’ top priority. In 2010, President Obama appointed former AFL-CIO and Service Employees International Union staff counsel Craig Becker to fill one of three empty slots on the five-member NLRB. Becker was placed on the board through a recess appointment after he was unable to win Senate confirmation among concerns from Republicans that he would use the administrative powers of the NLRB to implement EFCA provisions. NRF warned at the time that Becker would use his NLRB position to “bypass the role of Congress in setting national labor policy.” With one seat vacant, last summer’s rulings on union organization came on 3-1 votes won by the panel’s three Democrats over its single Republican. December’s ambush election regulations, for example, were approved on a 2-1 party-line vote, and Obama replaced Becker with another former union attorney when his term expired in January 2012.