Wednesday, June 19, 2013

Mastrosimone on the NLRB's Election Rules

MastrosimoneJoe Mastrosimone (Washburn) has just posted on SSRN his article, "Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech," which will appear int he Washburn Law Journal.  The abstract:

The central promise of the National Labor Relations Act is freedom of choice to American workers to decide whether they wish to be represented by a labor union. At the same time, studies show that employees’ choices are not always the product of uncoerced freewill. Many attribute employer coercion as hampering employee choice. That choice had traditionally been made through a secret ballot election conducted by the National Labor Relations Board. That election has generally been held approximately six to eight weeks after the petition for an election and after the union and the employer have “campaigned” for employee support. 

To correct employer coercion problems, the NLRB has altered its representation process to drastically shorten the period from petition to election. That shortened window significantly reduces the time in which an employer can communicate with his or her employees about the choice they are about to make in the soon-to-come election. 

The article concludes that attempts to shorten the campaign and cut out the employer’s role in the process are contrary to Congressional intent, to the First Amendment, and to the information gathering purpose of the campaign. Those conclusions are based on an examination of the legislative history of the Taft-Hartley Act’s inclusion of “the employer free speech provision” in Section 8(c), the court’s longstanding treatment of employer and union campaign speech as protected by the First Amendment, and studies of political campaigns that show that the information gathered by voters during a campaign is meaningful and helpful to the electorate and that the gathering of information is related to the length of the campaign. 

The article concludes that (1) the shortened campaign seeks to prevent unlawful coercion by improperly and unwisely limiting this protected and valuable information and (2) offers other means to combat unlawful coercion that respect the employer’s right and the employees’ need for information from both the employer and the union.

Joe's criticism of quicker elections is well thought out, even though many will disagree with him (I've come out somewhere in the middle by advocating for shorter elections, but not too short).  No matter your views on the timetable, he makes some interesting proposals as replacements for quick elections, including staying employer's ability to terminate employees during the critical period and requiring employers to provide information to support predictions of plant closures and similar costs of unionization.  

A very interesting article--check it out.

-JH

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