In union elections, time is on management’s side

By David Groves

We need more time, corporate lobbying groups say. We need more time to make our case to workers about why they shouldn’t form unions. And we also need more time before the federal government updates the rules governing those union elections.

That was the message delivered by business organizations at hearings held this week in Washington, D.C. on the National Labor Relations Board’s proposed rule changes to bring the union-election system into the 21st century. The proposed new rules are intended to speed the election process and eliminate many of the opportunities to deliberately delay these elections.

Businesses are asking the NLRB to slow down the rule-making process for the same reason they want to maintain delays in the union-election process: given more time, they can kill it.

In union elections, the longer management can postpone the vote, the more time they have to identify union supporters, and intimidate, harass and fire them. (Yes, it’s supposed to be illegal to do that in America, but the enforcement is lax and the penalties are tiny. Breaking these laws is a simple cost of business when fighting a union organizing campaign.) Similarly, in the case of the NLRB rule change, business groups want to delay the process until they can “fire” the Democratic administration that has proposed them.

Workers testified this week that the existing NLRB rules for union elections are so cumbersome and time-consuming that the whole process is tilted heavily against unionization from the start.

As University of Texas labor law professor Julius Getman explains, unless the NLRB updates these rules, it is defying the government’s obligation to give management and the union the same opportunity to make their case before workers vote on whether to form a union.

The board has been instructed by the U.S. Supreme Court to prevent an “imbalance in the opportunities for [union] organization communication,” and at the same time, it has been instructed that it may not grant union organizers the right to enter company property.

The result has been a system favorable to employers.

That’s because employers can gather the employees together, often during working hours, to convince them that voting for unionization would not be in their interest. Management will talk about debilitating strikes, union dues and the chancy nature of collective bargaining in what are known as “captive audience” meetings. It will assert its strenuous opposition to the union. Union representatives have no chance to respond “in kind;” they can’t speak at those events and must make their points at meetings away from the work site, during workers’ off time.

Although the proposal by the board falls far short of the Employee Free Choice Act overhaul unions were hoping for when Barack Obama was elected president in 2008, they do represent the biggest changes to NLRB election rules in several decades.

Here’s a helpful description from the AFL-CIO of three things the proposed rules do…

This rule DOES cut back on opportunities for delay during the NLRB hearing process, closing the loopholes businesses have exploited for decades. The current lengthy and protracted election process sacrifices workers’ interests in having an election and, instead, incentivizes coercive and illegal activity from employers. During organizing campaigns, more than one-third of companies fire pro-union workers. According to a University of California- Berkeley study, the longer the election is delayed, the more likely the NLRB will charge employers with illegal misconduct.

This rule DOES cut back on unnecessary and costly litigation. The current process rewards employers who use litigation to stall an election date, often pursuing claims which are irrelevant or found to be without merit. Research shows that these delay tactics work: When employers pursue litigation, elections occur an average of 124 days after the petition was filed. By reducing choke points in the system, the rule will reduce frivolous, taxpayer-funded litigation.

This rule DOES standardize procedures for the NLRB’s regional offices. The rule incorporates existing practices already being used in many NLRB regional offices and addresses inconsistencies in procedures, ensuring a clear, consistent process for all parties.

…And three things it doesn’t do.

The rule does NOT deny companies the opportunity to express their opinion about union representation. From the first day workers are hired, companies have full access and ample opportunity to make their views clear to workers. In fact, nearly half of charges of illegal conduct filed with the NLRB during organizing campaigns involve employer misconduct that took place before workers filed a petition.

The rule does NOT require that elections be held within a specific time period. It simply makes the process fair by removing opportunities to delay the vote. Delay is a tactic used to wear down and discourage employees who want to form a union. Employers and workers alike are entitled to a process that cannot be manipulated to gain unfair advantage and is clear, precise and efficient.

This rule does NOT hurt our economy or stifle business. On the contrary, a fair, efficient and predictable process saves time and resources for companies, workers and the government. And if workers decide to choose a union, the economy benefits. The Economic Policy Institute (EPI) estimates that if 5 million service workers were to join unions, approximately $34 billion in new wages would flow into the economy. Furthermore, unions help build successful partnerships between workers and corporations every day. At companies like AT&T and UPS, workers have formed partnerships with their employers to improve their lives, and these businesses continue to lead their industries.

These last three items the rules DO NOT do are essentially the talking points of business lobbying groups against the rules. They say streamlining the election process would deprive employers of the chance to consult with lawyers and come up with a plan to communicate with their workers prior to a vote.

Well, it sure didn’t take the multibillion dollar union-avoidance industry much time to come up with new products customized to deal with quicker elections under the new NLRB rules. A Georgia-based firm called Projections is already marketing its “Ultimate Defense Kit” of anti-union DVDs, publications and other propaganda intended to discourage unionization.

David Groves is Editor of The Stand. He can be reached at David.Groves (at) thestand.org