BRIEF: Reining in the NLRB: Empowering Workers Not Unions

Background: Established under the National Labor Relations Act (NLRA) of 1935, the National Labor Relations Board (NLRB) is an independent federal agency that oversees union elections and unfair labor practices. Congress intended the NLRB to function as an impartial arbitrator mediating disputes between unions and businesses. Under President Obama, the NLRB has instead consistently proposed and enforced rules that favor labor unions over both workers and employers. Labor unions often have goals that do not line up with the desires of workers, such as expanding union size, revenue, and power regardless of its effect on workers. The NLRB stifles job creation and undermines workers’ rights in a number of ways.

  • Ambush Elections: The NLRB has historically taken 5-6 weeks to conduct union organizing elections. During this time employers offer counter arguments attempting to convince its workers not to unionize. The election period gives workers a chance to hear arguments from both sides and cast an informed vote. The NLRB’s new ambush election rules are purposely designed to shorten this time so workers have fewer opportunities to hear opposing arguments from employers. Before the NLRB’s ambush election rule was implemented, employers had a median of 38 days before an election to persuade his/her workers. Under new ambush election rules, this figure has dropped to 24 days, but even faster elections are possible. The new rules guarantee employers no more than 10 days to make their case. This severely undermines the ability of workers to make an informed choice about a union.
  • Joint Employer Standard: In August 2015, the NLRB overturned the 30 year-old joint employer standard establishing entities as joint employers if it exercised “direct and immediate” control over another company’s employees. Now, entities are joint employers if they simply have the “potential”, “indirect”, or “unexercised” ability to exercise control. This new standard is intended to make business clients and franchisors co-employers of their contractors’ and franchisees’ workers so they are legally obligated to negotiate with all of their existing unions. For example, the new standard could potentially allow workers at a McDonald’s franchise restaurant in Virginia to unionize with all other McDonald franchise restaurant workers in the country against McDonald’s corporate. This empowers unions over business owners they don’t directly work with and diminishes the power of contractor and franchise owners to run their own companies.
  • Micro-Unions: The NLRB has promulgated rulings that allow unions to organize separate groups of workers by job title. For example, in a unionized retail store, cashiers, greeters, salespersons, and shelf stockers could each have individual unions engaging in collective bargaining. This would increase operating costs for businesses as well as enable unions to gerrymander bargaining units in companies where the majority of workers don’t want union representation.
  • Secret-Ballot Voting: While unions traditionally organize through secret-ballot elections, federal law does not require them to do so. Estimates show that unions organize up to one-quarter of new members without a private vote, typically using publicly signed union cards (card check organizing). This exposes workers to harassment by allowing union leaders to know which employee favors or opposes them. Before Obama took office, workers organized without a secret-ballot vote had the option of requesting one. The Obama NLRB took that option away empowering union leaders to force their representation on workers.

Solutions: Congress should enact legislation that rebalances labor law in favor of workers over union officials. The NLRB’s actions on ambush elections, joint employer standards, micro-unions, and restrictions on secret ballot elections should be repealed. Congress should pass The Employee Rights ActH.R. 3222 and S.1874, which would do the following:

  • Guarantee employees the right to a secret-ballot vote before joining a union
  • Guarantee employees the right to a secret-ballot vote before going on strike or accepting a contract
  • Give employees at least 40 days to hear from employers before voting in a union election
  • Allow employees to vote on re-electing their union once a majority of their firm’s workforce has turned over.
  • Require unions to obtain an employee’s permission before spending union dues on purposes unrelated to collective bargaining
  • Prevent unions from interfering or extorting an employee’s legal rights
  • Allow employees to opt out of having their personal contact information provided to a union during an organizing drive

This legislation will empower workers and help ensure labor unions serve the best interest of employees, not union bosses.

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