It was only a matter of time before Big Labor started to get from the Labor Board what it has been after all along. Failing to achieve compulsory unionism through enactment of the Employee Free Choice Act, unions appear to be relying on the NLRB appointees they supported to achieve the same goals administratively.
Enter NLRB Member Mark Gaston Pearce. The former union lawyer from Buffalo said in a speech at the Suffolk University Law School in Boston, that the NLRB should seek to hold its representation elections “as brief[ly] as possible” after a union files its petition. Finding “intriguing” the Canadian system where elections are held within 5 to 10 days after a petition is filed and eligibility issues are decided later, Pearce said “we can do better” than the current 38-day pre-election period. He claims the current longer time permits more unfair labor practices to be committed, jeopardizing the chances of a valid election.
The time from petition to election is a product of the National Labor Relations Act itself. The procedures the Board has worked out over many decades to help ensure a fair election that reflects the free and informed choice of employees have worked well overall. In fact, unions win about 66% of all elections the NLRB conducts and of those they lose, only a very small number are ever overturned because of employer unfair labor practices, facts Pearce failed to discuss.
Of course, employees are much less likely to vote for union representation once they have had the opportunity to hear their employers’ side. But because union organizing is usually conducted secretly, employers would not know they need to share their views with their workforce until an election petition has been filed. A “quicky” election, then, really seeks to cut off debate over unionization before it begins. It would make an employer’s statutory “free speech” rights under Section 8(c) virtually meaningless.
Unions file their election petitions by getting employees to sign authorization cards without employees necessarily knowing all the facts. The quicky election would simply rubber-stamp the cards. Casting a ballot would be mere window dressing, an exercise almost as meaningless as the drafters of EFCA could have hoped.
The NLRA contemplates an informed electorate. Unions and their supporters cannot be depended upon to tell employees the downside of unionization — only employers are in a position to do so. Indeed, the Act incorporates a right of employer free speech. As for unfair labor practices, the Board has ways to address them. Its Acting General Counsel, in fact, just unveiled a new protocol for seeking federal court injunctions and speedy hearings where pre-election violations are charged. (See NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC.) What proponents of quicky elections really are saying is that employers should have no role in NLRB elections, a position advocated many years ago by Craig Becker, now a Board colleague of Mr. Pearce. That is not the law. It should not be the law.
Perhaps this is lightning rod and a hint of things to come from the pro-union Board majority. By floating the possibility of only a 5- or 10-day period from petition to election and drawing criticism for it, employers, they figure, may be grateful when a 14- or 21-day rule ultimately is pushed through. Thirty-eight days is little enough time for employers to fulfill their informational role intended by the NLRA. They should resist any effort to cut it further — not to 5 days, 10 or 21.
It may be only a matter of time before quicky elections become standard, but if and when that happens, it will have a profound impact on employers and employees alike.