The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2023 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.

Former union lawyers target Foundation-backed reforms easing removal of unpopular unions

In its comments to the NLRB, the Foundation emphasized its leading role in defending workers’ right to vote out unwanted unions. Above are just a few workers whom Foundation attorneys have aided recently in decertification efforts.

WASHINGTON, DC – Bureau of Labor Statistics data show that over 90 percent of American workers have chosen not to affiliate with a union, and recent polling by Gallup shows non-union workers are overwhelmingly “not interested at all” in unionization. This isn’t a surprise considering modern day union officials’ overwhelming focus on politics, the way that monopoly “representation” often disadvantages the best employees, and union bosses’ “pay up or be fired” demands leveled at workers in non-Right to Work states, among other reasons.

The National Right to Work Foundation helped create an easier path for employees to vote out union officials they oppose by filing comments in support of the “Election Protection Rule,” which the National Labor Relations Board (NLRB) adopted in 2020. The Foundation-backed Rule eliminated several non-statutory NLRB policies that union officials manipulate to block any attempt by employees to vote them out of a workplace.

Now, former union lawyers Biden appointed to the NLRB are repaying the President’s union boss political allies by moving to eliminate the Election Protection Rule, thus restoring to union officials several coercive methods used to trap workers in unions they oppose by making it more difficult for employees to successfully petition for a decertification election.

The Foundation slammed the plan in February comments filed with the NLRB, maintaining that the rule change will trample workers’ statutory right to vote out unions they oppose while entrenching unpopular union officials. Foundation attorneys followed up with reply comments in March, which refuted several arguments union officials and Biden’s NLRB General Counsel put forth in comments supporting the Election Protection Rule’s elimination.

Biden NLRB Will Again Let Union Officials Weaponize Unproven ‘Blocking Charges’

The Foundation’s comments explain that, if the Election Protection Rule is tossed, union officials will again be able to exploit often-unproven allegations of employer unlawful behavior to delay employee-requested union decertification votes. Prior to the 2020 reforms, union officials could often stall a decertification vote for months or even years by filing these so-called “blocking charges.”

The 2020 Election Protection Rule overturned the blocking charge policy, so workers are currently allowed in most cases to cast ballots in a decertification vote before the NLRB deals with any allegations surrounding the election. This procedure eliminates the incentive outright deception. Once recognized via this card check process, under the NLRB proposal there will be a year-long non-statutory bar, during which unions are immunized from decertification attempts.

The Election Protection Rule gives employees the opportunity to challenge the union’s claim of majority support during a 45-day window period beginning upon notice of recognition. If workers collect a sufficient showing of interest for an election and file it during the 45-day window, the NLRB will hold an election in that bargaining unit. This provides a check against the most egregious card check campaigns. Barring these worker-submitted union decertification petitions “only shields what may well be a minority union from challenge” and “destroys employees’ [statutory] rights,” the Foundation’s comments say.

Worker Majority Support Doesn’t Matter for Union Elites

The comments also oppose the Biden NLRB’s plan to let union officials subject construction workers to monopoly union so-called “representation” without providing evidence of any individual worker’s support for such control, let alone a majority.

“The move to eliminate the Election Protection Rule will re-impose arbitrary policies that trample workers’ rights and allow union bosses to maintain power despite the overwhelming opposition of rank-and-file workers,” observed National Right to Work Foundation Vice President Patrick Semmens.

“The Biden NLRB, now stocked with former union lawyers, is putting on full display that its priorities lie with top D.C. union brass, not rank-and-file American workers.”