Are Democrats afraid that the National Labor Relations Board’s aggressive activism could backfire on unions the next time there is Republican administration? That is the implication of a little-noticed section in a Democratic labor policy reform bill that appears intended to prevent a future administration from changing workplace election rules.
The legislation from Washington Democrat Sen. Patty Murray, dubbed the Workplace Action for a Growing Economy (WAGE) Act, includes numerous pro-union changes to enhance the power of the federal government’s main labor law enforcement agency. Murray and other fans highlighted sections during the bill’s introduction last month that would triple the back pay awarded to illegally fired workers and make it easier for those workers to be reinstated.
One part Murray not highlighted was a section in the bill that says that all labor board-monitored workplace organizing elections, when workers officially vote on whether they want a union, must be based on “a majority of the valid votes cast.” That is unusual because that is already the standard the board uses. Murray’s bill, in short, would tell the labor board to do what it is already doing.
Murray’s office did not respond to repeated requests from the Washington Examiner for clarification as to why the section is in there.
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James Sherk, labor policy analyst for the conservative Heritage Foundation, said the section appears to be in there to prevent a future Republican administration from requiring unions to win a majority of all employees in a workplace, not just the ones who show up to vote. That change could have a huge impact because turnout in workplace elections is often low.
“I think the AFL-CIO is nervous about a future conservative NLRB making reforms that require unions to win elections with a majority of all eligible employees, rather than a majority of those who vote. One-third of all union election victories between 2012 and 2014 came with a majority of voters but a minority of the overall workplace,” Sherk told the Washington Examiner.
The labor board is a quasi-independent federal agency whose five board members are nominated by the president and serve staggered five-year terms. The appointments must be confirmed by the Senate. The board’s recent moves on several fronts to expand its authority through a creative reading of existing rules and statutes, such as expanding employer liability and speeding up workplace elections, could inspire a future GOP-led board to do the same. The current election standard is the board’s own interpretation of the rules laid out in the National Labor Relations Act. Nothing would prevent a future board from adopting a different reading of the law.
It could happen sooner than that. Some top Republican lawmakers have introduced legislation, dubbed the Employee Rights Act, to reform labor laws. One of the reforms is to require unions to win the support of a majority of all employees in a workplace. The Senate version is sponsored by Sen. Orrin Hatch, R-Utah, while Rep. Tom Price, R-Ga., sponsors the House version. Both versions were introduced in July but have not seen any activity since then and remain in committee.
Murray’s legislation would head that off by codifying the “majority of votes cast standard” into federal law. Her bill is unlikely to see any activity under the Senate’s Republican majority. Murray’s effort is more likely intended as “messaging” legislation that isn’t expected to pass but serves to bring attention to a particular issue. That the bill includes the election provision suggests it has become a concern for Democrats and their allies in the union movement.
Sherk notes that unions are also promoting the idea of off-site electronic voting, as opposed to having the elections at the workplace. “Unions [could then] canvass supportive workers at their homes and ask them to vote and employers cannot do the same [under federal law] for workers opposed to the union. So moving the elections offsite and online will make it much easier for unions to win despite having only minority support in the workplace. An absolute majority standard would prevent that from happening,” he said.
