By Brett McMahon, ,
Published May 07, 2015
Keeping hard working men and women employed is a serious challenge today. Competition is vicious and it seems like every day there is a new regulation or proposed legislation that will make our investment even more risky. No private business person I know is very optimistic. The perception of our current government in the eyes of businessmen and women is simply this: The government is against us. Leading the charge against American business is the National Labor Relations Board (NLRB).
The latest assault comes in the form of a workplace election rule change that would shrink election windows, giving people only ten days to learn everything they need to know about unionizing before voting. The proposed rule change is profoundly disrespectful to the people that it would affect: workers around the country. It shows no respect for their intelligence or their judgment. It is unfair to make it virtually impossible for an employer to present the other side of the organizer's pitch. How can anyone in good conscience take away the opportunity to discover the truth and weigh their options from someone? How many doctors have to take their MCATs as freshmen in college? It seems reasonable because it would deprive the participant of important information. Why would you deny the same level of respect to workers during an organizing drive?
There have been numerous decisions by this Board that highlight hazards for unsuspecting workers. This Board allows organizers to exaggerate and make promises which have no weight during negotiations. For example, in Wolfrich Corporation, dba Thrifty Rent-A-Car, 234 N.L.R.B. 525, this Board permits organizers to tell workers they can make more money, even if that is not necessarily true, because "employees generally understand that a union cannot automatically obtain benefits by winning an election, but must attempt to achieve them through the collective-bargaining process." Furthermore, in Coach & Equipment Sales Corp; 228 NLRB 441 the Board asserted that: "[C]ollective bargaining is potentially hazardous for employees and that as a result of such negotiations employees might possibly wind up with less benefits after unionization than before." Is it remotely reasonable to expect every person to know such things?
Changing one's working conditions is a matter of upmost significance, affecting their immediate and long term future. Such a decision is more personal and important than any political election, yet we expect extended political campaigns where both sides make their case. A politician would show profound disrespect to voters if they were to stand for election without campaigning.
The small employer is nearly hamstrung at the start even if they are aware of an organizing effort. Many employers are not aware of the effort until the organizer presents their cards. Most small businesses do not retain employment counsel. In fact, until the recent headlines, I doubt many small employers had even heard of the NLRB.
With all of the challenges in the current economy, it is unreasonable to expect an employer to drop everything and then respond in the potential time frame contemplated by this rule.
Certainly any Board charged with guaranteeing workplace rights should be guaranteeing that those workers are shown the proper respect. That respect is demonstrated by ensuring that both sides of an argument that is so important to their working lives are given ample opportunity to be heard and understood. Under Section 8(c) of the National Labor Relations Act, an employer's right of free speech is protected, but this proposed rule change undermines that right. What good is a right if there is no practical way to assert it? This Board should not adopt this rule.