“A major reason for the administration’s pro-union regulatory push is because of its inability to get pro-union legislation through Congress,” Kovacs continued. “For example, the NLRB ambush election rule.”
The new election procedure drastically shortened the length of time in which a union certification election must be held. Labor unions even agree that their chances of winning an election dwindle the more that time passes.
“Under the new rule, the time frame between the filing of a petition and the date on which an election is conducted is reduced to as little as 14 days or less,” Kovacs noted. “The short time frame gives employees little time to educate themselves on the pros and cons of unionizing, and undermines employers’ ability to respond to unionization campaigns.”
The EFCA would have also shorted the amount of time in which a union election is held. The union election process under current law requires 30 percent of workers to sign cards, which then authorizes a secret ballot election. The bill could have allowed unions to skip the secret ballot election if they got a majority of workers to sign cards.
“It is well known that unions win more representation elections when workers have little time to contemplate the decision,” Kovacs continued. “From 2004 to 2014, unions won only 60 percent of elections conducted in 36 to 42 days, but won more than 86 percent of elections conducted in less than 21 days.”
Critics have warned that without secret ballot election, workers risk intimidation, because their votes are known. While the ambush election rule has been able to shorten elections, it did not take away the secret ballot portion. Federal agencies have since been able to strengthen unions in ways the proposed bill was not designed to do.
“Although the EFCA did not cover joint employment, again, the NLRB’s change to joint employment standard supplies unions with more tools that ease organizing campaigns,” Kovacs also noted. “[Its] holding more employers responsible for the actions of contractors they utilize or franchisees that they do not control.”
The joint-employer standard allows the federal government to declare multiple companies that contract with one another a single employer if one has direct and immediate control over the employees of the others. The NLRB has already begun implementing an expanded version of the standard that considers factors beyond just employment.
“[It] allows unions to take action that would previously be illegal,” Kovacs stated. “For instance, it is illegal for a union to protest, boycott or picket against a third party. But under the new rule, where two distinct entities are now considered one, a union may engage in boycott of a franchisor when it is attempting to organize a single franchisee.”
The expanded standard makes it easier for the NLRB to declare two or more companies joint-employers on a seemingly case-by-case basis. Critics have warned the expanded standard could very well unravel franchising, because it will make corporations less likely to participate since they’ll have to take more responsibility for the smaller companies they contract with.
“Giving unions these tools, which have long been illegal against third parties, enables unions to browbeat employers into labor peace agreements,” Kovacs added. “That almost always include card-check elections.”
The policy overhaul may not be limited to a belief unions are a critical function of workplace relations either. Unions have a lot of political influence and tend to benefit Democrats over Republicans. They have the ability to mobilize crowds and are also major financial contributors.
“Further, it is well known that labor unions consistently fund Democrat campaigns,” Kovacs concluded. “Thirteen of the top 25 all-time campaign contributors are labor unions, with all 13 of those unions giving at least 93 percent political dollars to Democrats.”
The NLRB did not respond to a request for comment.
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