Former NLRB Chief Warns Against Board’s ‘Radical’ Snap Elections Rule

Lachlan Markay /

A former chairman of the National Labor Relations Board on Thursday blasted a proposed rule that would expedite elections for workplace unionization, insisting the proposed rule represents a “radical manipulation of the board’s election process” and an attempt to “tilt the process in favor of organized labor.”

“The proposed rule demonstrates once again,” claimed Peter Schaumber in his prepared testimony before the House Education and Workforce Committee, “that the current board majority feels unconstrained by the limits of the law and its role under the [National Labor Relations] Act to be completely neutral on the question of unionization.”

Schaumber, who served on the NLRB from 2002 to 2010, the latter two years as its chairman, reiterated later in his testimony that the “animating concern” of the NLRB’s majority “is the loss of union density in the private sector.”

The changes to union election procedures implemented by the new rule, Schaumber suggested, are simply intended to swell union ranks by precluding employers from effectively making their case against unionization. Schaumber’s claims echoed those of Heritage Foundation Senior Policy Analyst James Sherk, who wrote last month that the rule would “short-circuit employers’ ability to make their case. If the election takes place in a matter of days workers will base their decision (largely) on information received from the union.”

Other witnesses at the hearing lent anecdotal weight to Schaumber’s testimony. Larry Getts, an employee at a Dana Corp. plant in Fort Wayne, IN, that packages and ships auto parts, recalled a 2007 attempt by the UAW to organize workers there.

“I was initially inclined to support the unionization effort,” Getts said in his opening statement, “as I’d been a union member at a previous job.” But as Getts and his employees researched the union representatives’ rosy claims, they soured on the idea. After a long push by the UAW – during which Getts claimed to have endured “intimidation, harassment, and mistruths” – the unionization drive failed.

Getts was adamant that the NLRB’s proposed “ambush elections,” as he called them, would prevent employees from doing the research necessary to make an informed decision about unionization. Further, contrary to claims that unions are, from the outset, at a disadvantage in pitching their case to workers before elections are held, Getts insisted that “there [was] an absence of information from employers” with which workers could make an informed choice.

A number of witnesses made that point, and in doing so echoed the central theme of Schaumber’s testimony: the proposed NLRB rule is simply an attempt to bolster the dwindling ranks of America’s private sector labor unions by denying workers the opportunity to make a fully informed decision.

The rule, claimed labor lawyer Michael Lotitio in his written testimony, “assumes employers have no role to play in NLRB representation elections,” a notion long espoused by recess-appointed NLRB member Craig Becker, also a former associate general counsel for the AFL-CIO and the SEIU. Becker has argued that “employers should have no right to be heard in either a representation case or an unfair labor practices case.”

But as Carew Concrete and Supply Co. president John Carew pointed out, “unions have the advantage of subtly working behind the scenes for months,” even before any official unionization drive begins – and, consequently, before employers know to educate their workers on the potential pitfalls of joining a union. The only witness to speak in favor of the proposed rule, University of Indiana law professor Kenneth Dau-Schmidt, insisted that longer election processes inherently work against unionization, ignored that efforts to unionize might begin long before the official drive commences.

Carew claimed that the NLRB’s rule will preclude employers from making their case to their employees. But according to the Board’s former chairman that’s a feature of the rule, not a bug.