The Harmful Effects Of The Ambush Election Ruling

Heather Greenaway Executive Director, Workforce Fairness Institute
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Big Labor is at it again. Predictably, and as many warned, since the enactment of the National Labor Relations Board’s (NLRB) “ambush election” ruling, elections to unionize workplaces have sprung up at an alarming rate. The new election rule took effect on April 14 – and in the first month, from April 14 to May 14, there was a 32 percent increase in the number of election petitions filed.

While the NLRB was created with the intention of protecting American workers and arbitrating disputes between employees and management, it has since turned into an organization run by union bosses pushing Big Labor policies. The ambush election ruling is par for the course for the Obama administration, which stops at nothing to increase union membership rolls.

The rule shortens the amount of time employers have to prepare for a union election. Historically, employers have had an average of 38 days, or a little over a month, to hire outside counsel, discuss ramifications of unionization with their workforce, and overall combat unionization efforts. Under the newly enacted ambush election rule, however, they now have as few as 11 days, or a little over a week, in which to prepare.

Workers have little time to understand the unintended consequences of joining a union, meanwhile, union organizers, who are trained in this regard, may have spent months canvassing before even filing their election petition. The NLRB’s own data show that the shorter the election time, the great likelihood a workplace will unionize.

In a rare moment of bipartisanship, Congress recognized the NLRB’s overreach and passed legislation in March that would have thwarted the decrease in union election times. Obama, however, used his veto pen for only the fourth time in his presidency, striking the legislation down. This issue was that important to him, proving the Obama administration is anti-business, as usual.

His veto wasn’t the first time Obama has interfered on behalf of Big Labor. In 2012, during a brief break in the Senate’s pro forma meeting schedule, President Obama unilaterally filled three vacancies to the NLRB, calling them “recess appointments.” These unconstitutional appointments were later unanimously rebuked by the U.S. Supreme Court, as the president’s appointee power rests on the advice and consent of the Senate. The Supreme Court then invalidated a year and a half’s worth of NLRB decisions – over 100 – during that prior year and a half.

The ambush election rule is going to have a sizable impact on small businesses and workers’ rights. The trend will continue – we will see a surge in election petitions as confusion swirls among business owners. Steve Bernstein, a top labor attorney for the labor and employment law firm Fisher & Phillips LLP, was recently interviewed by the Washington Free Beacon on the potential effects. He explained how these rules will entice unions to file petitions, even when they think their chances of winning are low.

Before the new ruling, Bernstein states, unions “were unlikely to file [petitions for elections] without at least 60 or 70 percent interest, but now they may be more comfortable filing minority petitions,” banking on the increased speed of elections to help them blindside employers and employees. Employers are right to be concerned. In the first month alone, the median time for filling petitions for elections decreased 40 percent, from an average of 38 days to 23.

If employers are constantly on guard against the threat of an ambush election potentially restructuring their company, how can they focus on running a business, innovating, and creating jobs? We need to be focused on growing our economy, not putting up yet another obstacle for business owners and workers’ rights.

Heather Greenaway is a spokesperson for the Workforce Fairness Institute (WFI).