June 24, 2011
A step in the right direction…
This week the National Labor Relations Board proposed a set of modest changes to the rules governing the process for voting on union representation. If adopted by the NLRB after a 60-day period for public comment, these modest changes would modernize and streamline its decades-old representation election procedures and restore some balance and fairness to the system.
While the rule change does not mandate quick elections, removing built-in delays and unnecessary pre-election litigation would speed up a process that took 57-days on average in 2008. By contrast, Canada requires a vote to be held within 10 days.
Conducting secret-ballot elections where workers decide on union representation is “one of the most important duties of the NLRB,” said Chairman Wilma B. Liebman. “Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.”
“Today, of course, the Board is routinely criticized for doing what the statute requires it to do. It is fair to predict, then, that the new proposals will be controversial. That controversy is unfortunate, but it is not a good reason for the Board to abandon its responsibilities.”
If adopted, the rule change would:
- Allow for electronic filing of election petitions and other documents.
- Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
- Standardize time frames for parties to resolve or litigate issues before and after elections.
- Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.Defer litigation of most voter eligibility issues until after the election.
- Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
- Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
- Make Board review of post-election decisions discretionary rather than mandatory.
What the rule change would not do:
- Require that elections be held within a specific time period.
- Deny opportunities for employers to communicate with workers 24/7 at the worksite.
- Incorporate any provisions of the Employee Free Choice Act.
- Fix inadequate, weak NLRB remedies or promote first contract bargaining.
“With the proposal of these new standards, the Board is taking a modest step to remove roadblocks and reduce unnecessary and costly litigation—and that’s good news for employers as well as employees,” says AFL-CIO President Richard Trumka.
But it’s no Employee Free Choice Act
Union-busting is a multi-billion dollar industry. Union-busters and anti-union ideologues will go crazy over these proposed changes because they oppose any effort to protect workers’ rights. But advocates for workers should not overstate what the NLRB is attempting to do, either.
This is no Employee Free Choice Act – a bill that would have allowed workers to decide for themselves how to form a union, levied serious fines on employers who break the law, and force employers to stop dragging out negotiations on a first contract – which, in 2009, never got an up-or-down vote thanks to a Republican-led filibuster in the U.S. Senate.
Even if the rule change is adopted by the NLRB, anti-union bosses will still:
- be able to force workers into an election process even if a clear majority (or more) sign-up for representation
- hire high-priced union-busting lawyers to wage a campaign against their own employees
- illegally intimidate, coerce, or fire employees for exercising their right to form a union
- illegally threaten to close shop and move production overseas
- force employees to attend captive-audience meetings
- interrogate individual workers in one-on-one meetings with supervisors
- hold the election on company property
- refuse to negotiate in good faith on a first contract
“The proposed rule does not address many of the fundamental problems with our labor laws,” says President Trumka, “but it will help bring critically needed fairness and balance to this part of the process.”