Business Pushes for Delay, Litigation, and One-Sided Access in Union Elections

Republicans in Congress are trying to pass a joint resolution of disapproval to prevent the National Labor Relations Board (NLRB) from updating the rules that govern union elections. Republicans used fast track procedures to pass the resolution in the Senate, and held a hearing on Wednesday to begin moving the resolution through the House. If it were to pass, it would repeal the NLRB’s updates and prevent the agency from ever issuing a similar rule.

The House Education and Workforce Committee hearing was a painful experience. The NLRB is updating obsolete election rules that fail to recognize modern developments like e-mail, and which encourage excessive litigation and delay. Yet a panel stacked with anti-union lawyers attacked the rules as if they were ending American democracy. Meanwhile one witness, a registered nurse from California, offered an opposing view.

What do the new NLRB rules do? First, they require employers to share e-mail addresses and phone numbers with the union seeking an election, so that the union will have more equal access to voters. For many decades the law has required employers to share home addresses, and the NLRB sensibly thinks it is less intrusive to have union supporters call or email than to have them visit you at home. But the panel and the Republican members treated this as if it were the end of privacy as we know it (has even one of them complained about NSA spying on Americans’ phone records or calls?). Brenda Crawford, the registered nurse who testified, said her employer bombarded employees with e-mails and texts in the weeks before the election, in addition to daily anti-union messages at work, including captive audience meetings where nurses were called away from patient care to hear anti-union harangues. When she tried to put out union literature in the employee break room, it was removed. She testified that the company’s ability to campaign throughout the workday, and electronically when the workday ended, overwhelmed the nurses and their union, who had no way to respond.

Representative Bobby Scott pointed out that delay in holding elections is associated with increases in unfair labor practices, which can be vicious and intimidating, and for which there is no effective remedy under the law—no fines or penalties, no criminal prosecution, just partial backpay for employees who endure years of litigation to get their jobs back after being fired. Yet all of the Republican members and their three witnesses argued in favor of delay. The NLRB’s rule does away with an automatic 25-day delay between when employees file an election petition and the election occurs. The National Labor Relations Act does not mandate any such delay, but the anti-union lawyers treated it as a God-given right and claimed its elimination was “blowing up the election process” and a denial of employer free speech rights. You’d think they were kidding, but they at least pretended to be serious.

Businesses are supposed to hate lawyers and litigation—at least  when they’re being sued for pollution, for product defects, or for civil rights violations. But the business witnesses objected fiercely to the idea that the NLRB would remove opportunities to litigate issues that would delay an election, even if the litigation could occur subsequent to the election. One can understand that lawyers paid by the hour might want early and extra opportunities to sue, object, and appeal. But padding lawyers’ incomes is not one of the statutory goals of the National Labor Relations Act.

The president’s advisors have recommended a veto of the joint resolution of disapproval, and it’s easy to see why.