Last month, Randy Johnson, vice president of the nation's most powerful lobbying organization, the U.S. Chamber of Commerce, stated that his organization would engage in "guerrilla warfare" against the NLRB. While a startling admission, Johnson's comments provide an accurate description of the behavior of big business and Republican lawmakers toward the NLRB during the Obama administration.
The right wing is apoplectic because the NLRB dared issue a new rule intended to modernize the union certification process and eliminate the worst cases of pre-election delay. The modest changes under the rule would not radically alter the balance of power in NLRB elections. But big business is determined that it will not stand. Johnson stated: "It really amounts to guerilla warfare where you've got a variety of weapons at your disposal." Thus, the chamber will employ an array of obstructionist tactics to sabotage the election rule. Johnson outlined "various devices to rein them in ... litigation, oversight hearings and appropriations riders." True to his words, big business filed two legal challenges to the election rule, which is due to take effect on April 14, in early January. The chamber has asked the courts to grant summary judgment blocking the implementation of the election rule.
In addition to their legal strategy, the chamber and other anti-union groups expect the GOP to ramp up harassment of the NLRB now that it controls both chambers of Congress. According to Johnson: "One [weapon] is oversight hearings. ... If you have intense oversight hearings and investigations it puts a damper on the desire of these people downtown to go forward on some of these issues."
The GOP has not disappointed its anti-union friends among the 0.01 percent. On Monday, Republicans in the House and Senate filed a challenge to the rule under the rarely used 1996 Congressional Review Act. Rep. John Kline (R-Minn.), chair of the House Education and Workforce Committee, stated that the GOP would be "pushing back" aggressively against the election rule because controlling both chambers "gives us more oversight capability." A Senate Health, Education, Labor and Pensions (HELP) committee hearing on Wednesday, titled "Ambushed," even adopted the preposterous over-the-top rhetoric of anti-union organizations.
The Senate hearing provided a stark illustration of how the GOP and anti-union organizations are now effectively joined at the hip. Almost laughably, Sen. Mike Enzi (R-Wyo.) accused the NLRB of "ensuring that the odds are stacked against" big business and in favor of employees who are trying to form a union. Parroting another right-wing talking point, HELP Committee Chairman Lamar Alexander (R-Tenn.) called the election rule "a solution in search of a problem." But the election rule addresses a very real problem: unscrupulous employers use deliberate delaying tactics to undermine employee free choice on unionization. Consider what one of the country's largest anti-union law firms tells its corporate clients: Delay union elections whenever possible because "time is on your side." A pre-election hearing of "some length" will extend the duration of anti-union campaigns, thus allowing employers to "erode support for the union."
Adopting similarly far-fetched rhetoric, Sen. Tim Scott (R-S.C.) claimed the election rule "drastically tilts the playing field in favor of unions" — it doesn't — and "chills employer-employee communications" — also untrue. According to Scott, the NLRB's efforts to streamline and modernize the union certification process "absolutely feel like an ambush." Alexander claimed that "making even the slightest mistake can require an employer to automatically bargain with employees." In reality, the NLRB issues bargaining orders requiring an employer to bargain with employees only when a company has engaged in legal violations so severe, when the evidence of employer misconduct is so great, that a fair election cannot be held, and even then, the union must provide evidence of prior majority support. Moreover, the NLRB seldom issues such bargaining orders.
In the Alice in Wonderland reality of GOP lawmakers, the NLRB election rule will give pro-union employees an unfair advantage over anti-union corporations such as Wal-Mart and McDonald's. In reality, powerful corporations will continue to dominate the union certification process, even under the new rule: they will still enjoy exclusive access to employees at the workplace; they will still force employees to attend group and one-on-one anti-union meetings; they will still communicate their anti-union message from the moment employees are first hired; they will still hire expensive union avoidance consultants and law firms that excel at operating in the grey areas of the law; unscrupulous employers will continue to intimidate and terminate pro-union workers but will face no meaningful sanction; and they will still rely on their GOP lackeys to parrot their far-fetched arguments against commonsense reform.
Republicans' obsession with waging war on the NLRB caused one Los Angeles Times columnist to ask in utter disbelief, "With all the nation's problems, GOP leaders pick this labor fight?" But the GOP assault on the NLRB makes perfect sense: Few things are more important to the party of the super-rich than destroying workers' right to choose a union. Big business exercises a virtual stranglehold over the existing system of union certification and it is determined to keep it that way.
For members of the NLRB, who have now endured six years of relentless attacks from GOP and big business, it must feel a lot like Groundhog Day.
Logan is professor and director of labor and employment studies at San Francisco State University.
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