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Why is the NLRB targeting small business?

According to politicians and practitioners on both sides of the aisle, there is a war being waged on practically everyone in America—women, men, working moms, stay-at-home moms, not to mention the perpetual mugging of the “99 percent.”

We’ll leave it to the pundits to judge whether these narratives are real or subterfuge. But one thing is certain: all this heated rhetoric is successfully diverting attention away from the very real battles being fought every day on Main Street.

In case you missed the latest Small-Business Economic Trends report, small employer confidence in the economy dipped in March, with the outlook for future hiring and growth flagging after what appeared to be a positive first quarter. From where members of the small-business community stand—it is a war out there. And the enemy takes the shape of increased taxes, political uncertainty and fear of new regulatory burdens.

Why then are some in Washington still determined to make our nation’s job creators the target of even more onerous and expensive regulations that discourage growth and increase the cost of doing business?

The purveyor of the latest assault on employer and employee rights is none other than the National Labor Relations Board (NLRB). It’s newest weapon? The aptly named “ambush election” rule.

In a season of polarizing rhetoric, the title may sound hyperbolic, but I assure you it is not. The new regulation is an audacious attempt to increase restrictions on employers—mostly small ones—by more than halving the time they have to prepare for a union election in a private workplace.

Until the final rule was issued last December, employers had several weeks to prepare for a union election. Union elections typically occur about 56 days after a petition is filed—a reasonable amount of time for each side to gather and share information with employees. Now, union organizers have the ability to hold an election at a private business in as little as 10 days.

For business owners, this means they may have fewer than two weeks to obtain legal counsel to ensure that they are fairly represented in communications with employees about the consequences of unionization. Because the average small-business owner is not a labor relations expert and does not employ and in-house counsel, shortening the “critical period” before union elections is an unfair and unnecessary burden. 

It distracts them from other important business needs and it siphons funds that could otherwise be used for expansion. For employees, the newly truncated timeline compromises their right to make an informed choice about unionization, and possibly a choice free from pressure or intimidation by union organizers.

Small-business owners don’t begrudge the rights of employees to unionize, but they do believe that the process should be fair and transparent. It should not be achieved through aggressive tactics or rushed election procedures that are predisposed to hurt employers and favor Big Labor. And because regulations like the ambush election rule have a far more damaging impact on small firms, agencies like the NLRB should take a careful look at the nearly 65,000 comments (including one from the NFIB) they receive when preparing the rulemaking—largely in opposition to ambush elections.

The small-business community is certainly the underdog in this fight, but it is not without allies. This week, a resolution to nullify the ambush election rule, introduced by Senator Enzi (R-Wyo.), will reach the Senate floor. With a simple majority vote the ambush election rule could soon be a distant memory.

As Senator Enzi said when declaring his staunch opposition to the rule, “There is no justification for ambushing employers with elections in as few as just 10 days and limiting their ability to exercise free speech and other legal rights.”

We quite agree. 

Instead of prolonging the battle, Senator Enzi’s colleagues should join him in giving the little guy a big victory by stopping this rule before it starts to do damage. After all, Americans jobs and American freedoms are two causes worth fighting for.

Dan Danner is president and CEO of the National Federation of Independent Business.