NLRB proposes rule changes to speed up union elections

The National Labor Relations Board earlier this week proposed modest changes to the procedures for holding union representation elections. The proposed changes are, according to the NLRB, “intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

Interested parties have 60 days to share their written comments with the board, and a hearing on the rules will be held in Washington DC on July 18 and 19. After the comment period, the NLRB will have 75 days to issue the final rule changes.

Organized business has begun a public relations campaign depicting the proposed laws as unfair to business. US Chamber of Commerce spokesperson Michael Eastman told Bloomberg/Business Week that the proposed rules will “tilt the playing field in organized labor’s favor.”

Brian Hayes, the lone NLRB member voting against the proposed law, said that if adopted the proposed rules would shorten the wait time to 10 and 21 days between the time a union representation petition is filed and an election. The median wait time now is 38 days. In his dissent, Hayes wrote that this shortened wait time “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

But as Larry Cohen, president of the CWA points out, businesses often conflate the right to educate with the right to intimidate, which has helped drive down the standard of living for workers in the US. “Today, we have corporations proclaiming that management ‘free speech’ rights can overrun workers’ rights every time,”  Cohen said. “The outcome: our middle class standard of living has fallen as collective bargaining rights have declined. The United States is now near the bottom, with Colombia, in bargaining and organizing coverage.  US income inequality is the worst in 100 years. The gap between wages and productivity in the US widens as workers are not able to bargain. The end result is an economic slowdown that will not end.”

When workers at 2 Sisters Food Group plant in Riverside, California decided that they wanted to represented by the United Food and Commercial Workers, the company used the extended time between the filing of the petition and the election to mount an education campaign that consisted hiring an anti-union consultant, distributing anti-union flyers, and forcing workers to attend daily anti-union meetings.

As the election grew closer, the company fired five pro-union workers and hired security guards to closely monitor the comings and goings of every worker. When the election took place, “off-shift workers,” according to a UFCW media release, “were forced to wait at a parking lot gate and then personally escorted one by one to the ballot box by the company CEO, then escorted off company grounds. The harassment, intimidation and illegal firings were too much. Workers feared for their livelihoods, and they narrowly lost their bid for a union.”

The proposed changes are hardly a panacea for eliminating anti-union abuses, but if adopted they should close some of the avenues taken by employers to string out the election. Among other things, the proposed changes would

  • allow electronic filing of election petitions,
  • speed up the time frame for pre-election hearings and for employers to produce a list of eligible voters,
  • postpone until after the election hearings on who is eligible to vote when less than 20 percent of possible voters are challenged, and
  • eliminate the 25 to 30 day period that parties have to review NLRB Regional Director decisions, a tactic often abused to extend the time between the petition filing and voting.

Unions generally welcomed the proposed rule changes. “The federal government has let big corporations abuse the legal system for too many years,” said Jim Hoffa, general president of the Teamsters. “Irresponsible corporations often delay organizing votes and retaliate against employees who want to form a union.

“In our experience, more than a third of employers fire workers who want to unionize. That’s why America has lost 10 percent of its middle-class jobs since 2000. This rule gives workers a reasonable chance to join together to restore fairness and balance.”

AFL-CIO president Richard Trumka cautioned that the proposed changes fall short of what is needed to really level the playing field between business and labor. “The proposed rule does not address many of the fundamental problems with our labor laws,” Trumka said. “But it will help bring critically needed fairness and balance to this part of the process.”

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