Under Trump, Union Election Rules Could Be Tilted In Employers' Favor

The newly conservative National Labor Relations Board may scrap worker-friendly reforms made under Obama.
President Donald Trump's National Labor Relations Board is reconsidering reforms designed to make it easier to unionize.
President Donald Trump's National Labor Relations Board is reconsidering reforms designed to make it easier to unionize.
Shizuo Kambayashi/POOL/Reuters

Three years ago, federal officials overhauled the way union elections proceed in the workplace, streamlining the process to give employers less time to pressure workers not to join. The reform was long sought by labor groups who hoped the changes could make it a little easier to unionize.

But now, President Donald Trump has reshaped the National Labor Relations Board, the agency that oversees union elections. With a new conservative majority, the board is considering scrapping the worker-friendly reforms from the Obama years and bringing back the system that employers were fond of.

On Tuesday, the agency published a notice in the Federal Register soliciting feedback on the union election rules. The board asked whether it should keep the current rules in place, tweak them or simply revert to the old ones. Tellingly, it was the three Republican board members who’d approved the notice, while the two Democratic members disapproved.

“Historians ... will have no choice but to conclude that the Board abandoned its role as an independent agency.”

- Mark Gaston Pearce, Democratic member of the National Labor Relations Board

One of those Democrats, Mark Gaston Pearce, issued a sharp dissent on the move, saying the “Notice and Request for Information” was really a “Notice and Quest for Alternative Facts.” He wrote that agency staff had poured thousands of hours of work into carefully updating the election rules back in 2014 and that the dire warnings his conservative colleagues had made about the rule changes hadn’t come to pass.

“It is indeed unfortunate that when historians examine how our Agency functioned during this tumultuous time,” Pearce wrote, “they will have no choice but to conclude that the Board abandoned its role as an independent agency and chose to cast aside reasoned deliberation in pursuit of an arbitrary exercise of power.”

Pearce’s Democratic colleague, Lauren McFerran, wrote that the timing of the board’s request suggests the majority is interested not in “objective data,” but in “manufacturing a rationale” for rolling back the rules now that Republicans are in power.

The rule changes could affect any worker set to vote in a union election on the job. After a union files for an election at a workplace, the employer will often spend a lot of time trying to dissuade workers from voting yes. The employer usually benefits from a longer, drawn-out process, as management spreads its message and workers get spooked about unionizing. For years, unions and Democrats sought to tighten up the process and give employers fewer ways to delay votes.

Among other changes, the 2014 rules shifted certain litigation that had typically happened before an election to after the workers have voted. The rules also made it possible for unions, companies and the labor board to file and serve documents electronically, rather than on paper. Although employers usually appreciate having red tape removed from bureaucratic processes, business lobbying groups claimed these changes took away time that employers needed to deal with union campaigns and would lead to “ambush” elections.

So far, there hasn’t been much evidence that the new rules have changed election outcomes dramatically. One analysis by Bloomberg BNA found that more union elections were resolved quickly and that they tended to go in the union’s favor. But another analysis, done by the labor board itself and reported by Politico, found that elections were happening twice as fast but that unions’ win rate was essentially unchanged. That would suggest employers’ concerns about “ambush” elections were overblown.

Sharon Block, a former Democratic member of the labor board, tweeted Tuesday that the “predictions of catastrophe” hadn’t materialized and that the only good reason to revisit the rules is “a political one.”

Although Trump’s nominees to the labor board haven’t been there long, this isn’t the first sign that they could significantly reshape policy to help employers. Last week, HuffPost reported that the board’s new general counsel is looking to unwind several worker-friendly reforms made under President Barack Obama.

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