Union Elections Make Cuba's Seem Fair

Where in the world do authorities decide who is eligible to vote after the vote is counted, and then discard the ballots of voters who are deemed ineligible? Plus, these authorities limit free speech before the election. Not Cuba. Not Russia. The answer, sadly, is the United States of America, at least with respect to union elections.

That is the essence of the new union election rules, called Representation-Case Procedures, issued by the National Labor Relations Board, now dominated by Obama appointees. The new rules were published in the Federal Register on December 15.

These rules govern elections for union representation, when a petition is filed by employees and unions calling for an election, supervised by the NLRB, to see if workers want the union to represent them through collective bargaining.

The NLRB wants to do everything in its administrative power to tilt the playing field towards unionization-even if it goes against decades of precedent. That is the only reason for the new rules. The Board wants 90 percent of elections to be held within 56 days, but that goal is already being met. In 2013, 94 percent of union elections were held within 56 days.

The NLRB has jurisdiction over all private-sector workers except those employed in railroads, airlines, or agriculture. It investigates allegations of unfair labor practices by unions and employers and oversees elections for union representation.

Congress has been pressed by organized labor for many years to give unions greater leverage for gaining new members, but it declined to take action, even when Democrats controlled both legislative chambers. Hence, the NLRB has taken matters into its own hands.

The NLRB issued a fact sheet comparing old rules with its new rules, set to take effect next April.

Regional NLRB directors must set a pre-election hearing eight days after an employer has received a petition, and the election must be held "at the earliest date practicable" afterwards. Only after the election would there be a hearing to decide what is the appropriate bargaining unit for the election for union representation. This is important because the choice of bargaining unit, defined as the group of workers who would be represented by the union, could determine the outcome of the election.

Putting off the decision about voter eligibility makes it easier to swing the final decision towards the union. Say that all employees in a manufacturing plant cast a vote, but only a minority wants union representation. Under normal circumstances, the union would lose. But if the bargaining unit is redefined after the vote to include only those sections of the workforce that voted for the union, the union wins. That is the advantage to the union of vote first and decide later who is eligible in a post-election hearing.

According to Republican NLRB members Philip Miscimarra and Harry Johnson III, writing in a dissent from the rule, "To state the obvious, when people participate in an election, it is significant whether they actually have a right to vote, whether their vote will be counted, and whether the election's outcome will even affect them. In this respect, the Final Rule's approach would be intolerable in every other voting context, whether it involved a national political election or high school class president."

The voter eligibility question is not the only problem with the Final Rule. With only eight days between notification and the union election, the employer has no chance to present a set of facts to workers. Unions, by filing a petition, will already have presented workers with their viewpoint.

In 1959, then-Senator John F. Kennedy stated that "there should be at least a 30-day interval between the request for an election and the holding of the election." This was "to safeguard against rushing employees into an election where they are unfamiliar with the issues."

The new NLRB Final Rule works the other way. Neither employees nor unions can take the opportunity to discuss the issues clearly. It limits free speech at a time when workers need to know the facts.

The Final Rule has numerous other problems, too lengthy to discuss in this space. Employers have to respond within seven days and give the regional NLRB office a list of all matters it wants to address in the election. They have to turn over company email addresses to the union, and allow the union to use company email to communicate with workers.

It is unlikely that the Final Rule will stand up in court challenges, and court challenges will certainly come. But these challenges take years. A better solution would be for the 114th Congress to send President Obama a bill to reverse the new rules before they come into effect in April. A veto would give Republican presidential candidates more ammunition in 2016.