NLRB's Ambush Election Rule, Bad Policy and Bad Law | Commentary

Membership in labor unions has been falling for decades and is at an all-time low in the U.S. While there are many reasons for this decline, it is an indicator that many workers simply don’t find unions as necessary as they once did.

But the National Labor Relations Board — an independent government agency formed in 1935 to enforce the National Labor Relations Act — doesn’t see the reduced demand for unions as a good thing at all. It wants the trend lines reversed and is going to extreme lengths to create what would be an unnatural growth spurt for the outdated club of labor unions.

Perhaps the NLRB pines for a bygone era? Maybe it’s simply searching too hard for its modern raison d’être? Whatever the reason, the board has become focused on increasing union membership rolls at almost any cost. This is not only inappropriate (the agency is supposed to act as an impartial referee); we believe it is also unlawful. The NLRB’s latest rule — often referred to as the “ambush election” rule — is a case in point. This rule is, quite simply, little more than a tool to facilitate union elections, not to protect workers. It overturns well-settled policy, unfairly favors unions, strips employers of basic legal rights, threatens worker privacy and has left the employer community with no recourse other than to sue.

Earlier this year, a coalition of trade associations, including the U.S. Chamber of Commerce, filed a federal lawsuit to stop the ambush election rule. We are arguing the rule violates the National Labor Relations Act and the Administrative Procedure Act, and infringes upon employers’ rights to free speech and due process.

By accelerating the union election process, employers under the rule will be deprived of their right to adequately explain the potential upsides and downsides of unionizing to their employees. As a result, employees will lose their right to make a fully informed choice about a critical workplace issue. As an additional flaw, the rule would allow an election to take place even if a simple question — like who is eligible to vote — has not been answered. This would be like holding a congressional election before drawing up a district.

Adding insult to injury, the ambush election rule also compels employers to provide to unions some very personal information about their employees — home addresses, telephone numbers, shift schedules, work locations and, where available, personal email addresses. Employers will be forced to violate the privacy of their workers, and unions can then use this information to bombard potential recruits with pro-union messages. Unlike the “do-not-call” list, workers would have no right or ability to opt out of these union solicitations. The rule is very clear that employers must hand over this information, no matter how concerned an employee may be about their privacy. To make things worse, the rule includes no limits on what unions can do with this information, or how long they can retain it.

The rule violates established law and statutory rights, but it also fails to make common sense. It seems unnecessary. As it is, 95 percent of all elections are conducted within two months and unions win more than two-thirds of them. Trying to improve those statistics feels forced — because it is.

Fortunately, the new Congress will have an opportunity to overturn this regulatory overreach, assuming the courts do not do so first. The NLRB needs a reminder that it should protect the right of American workers to join unions — not use its regulatory power to manipulate that choice.

Randy Johnson is senior vice president for labor, immigration and employee benefits, and Glenn Spencer is vice president of the Workforce Freedom Initiative at the U.S. Chamber of Commerce.