New rules: The NLRB and OLMS give labor law a long-overdue makeover

Let’s examine these two developments more closely. First, the new rule on NLRB elections, which I have written about in a previous column in The Hill. Conservatives have criticized this as an underhand effort to engage in an administrative “end-run” around the legislative process and provide unions with an “overwhelming advantage” by silencing employers in elections. But the new rule, which would delay litigation and improve access to information, will not limit employer speech in any way, and employers will continue to enjoy significant advantages in the election process. Business groups contend that only a tiny number of elections experience excessive delay, which seems all the more reason to stop this unacceptable practice.

Second, the new rule on employer and consultant financial reporting under the Landrum Griffin Act, which one management firm has called the administration’s “boldest attempt to impose employer neutrality.” The law regulates union internal affairs and requires employers to report to the Labor Department when they hire outside consultants for the purpose of dissuading employees from voting for unionization. The provisions regulating unions have always been enforced vigorously, as they should be, while the reporting requirements for employers are now virtually unenforced. Under the so-called “advice exemption,” consultants are required to report their activities only if they make direct contact with employees, so most run their anti-union campaigns through supervisors.

Over the past four decades, moreover, the industry of “union avoidance” consultants has grown exponentially, but the reporting regulations have failed to keep pace with this development. Consultants tell employers to delay the election process because “time is on your side,” advise them to treat organizing campaigns like “declarations of war” and offer “money back guarantees” in the event of a union victory. One could not invent a better example to illustrate that it is often the employer, and not the employees, who chooses whether or not a workplace gets a union. The new rule does not limit in any way employers’ right to hire union avoidance consultants, but merely requires that they report these arrangements to the Labor Department when external consultants are effectively running the show during anti-union campaigns.

So who will be hurt from these new rules and who will benefit from them? The only ones hurt by the new election rule will be unscrupulous employers seeking to use delaying tactics to undermine employee choice. The sole reason to oppose this change is to obstruct employees who are attempting to form a union. 

The only ones hurt by the OLMS’s new rule will be employers and consultants who engage in widespread and aggressive anti-union activities but fail to report their relationship to the Labor Department. The sole reason to oppose this change is to keep employees ignorant about how much their employer spends fighting unions. Those helped by the rule changes will be thousands of employees who will vote in elections in a timely manner and learn if their employers spend enormous sums of money on external union avoidance consultants.

Conservatives have expressed outrage at the new rules, which, according to the free market Machinac Center, are ordering employers to “Just Shut It.” But in a moment of unusual candor, the Chamber of Commerce admitted that the new election rule “is not as bad as a 15-day statutory amendment…unions should have pushed through two years ago.” 

In other words, critics of the NLRB and OLMS have wildly exaggerated the significance of these proposals. The rules offer much-needed updates to antiquated administrative practices, but by themselves are unlikely to provide union representation to millions of workers who say they want it but cannot get it because of weak legal protection and strong employer opposition. That kind of reform seems as far off as ever.
