Stop NLRB’s attempt at backdoor card check

Over the past several months, the National Labor Relations Board has issued a series of proposals and rulings that threaten to upend long-established federal labor laws in favor of organized labor at the expense of the businesses that create America’s jobs. The new rules that would result are similar to some of the 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.”

One NLRB proposal would institute “ambush” union organizing elections held as little as 10 days after a union files a petition while also limiting employers’ ability to communicate with their workers and requiring companies to give workers’ home addresses and e-mail addresses to union organizers. A ruling handed down this summer would allow the creation of micro-bargaining units where a union could cherry pick certain departments or employees within a company or even within a store. And other pro-union, anti-employer plans are in the works.

Legislation to block these moves – H.R. 3094, the Workforce Democracy and Fairness Act, sponsored by Education and Workforce Committee Chairman John Kline, R-Minn. – has recently passed the House on a bipartisan vote of 235-188.

With House passage complete, retailers now need to contact their Senators as soon as possible to urge them to take up this legislation. Organized labor has targeted traditionally non-union industries such as retail for expansion and is seeking to accomplish administratively at the NLRB what they could not achieve in Congress. The higher costs of labor that come with unionization would seriously hamper retailers’ efforts to preserve and create badly needed jobs. A reduction in employment would have a significant negative impact on the very workers unions claim they want to protect.

The History of Card Check

The Employee Free Choice Act 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.

Supporters were unable to advance 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 seats vacant, this summer’s rulings on union organization came on 3-1 votes won by the panel’s three Democrats over its single Republican.