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No More Lucy Pulling the Football Away

National Labor Relations Board Gets It Right on Union Elections

SOURCE: AP/J. Scott Applewhite

National Labor Relations Board Chairman Wilma B. Liebman and Peter Carey Schaumber, a longtime board member and former chairman, left, meet in a conference room at NLRB headquarters in Washington.

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The proposed rule announced today by the National Labor Relations Board to create a standard process for union elections is an important step toward giving workers a fairer way to choose whether to form a union. The rule would reform an election process that far too often resembles Lucy pulling the football away from Charlie Brown’s foot just as he begins his kick, with scheduled elections frequently delayed or canceled and workers left flat on their backs.

This common sense proposal would standardize an inconsistent election process. The NLRB is correct when it says the proposed rule would “reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.” The proposed rule does not specify a specific time frame for elections, but rather recommends a number of changes that would help put an end to delay tactics used by employers or unions, creating a more level playing field, ensuring stability and fairness for all parties, and reducing confrontation in the workplace.

Many elections to allow workers to vote to join a union already run efficiently, with half of all elections occurring within 38 days, according to the NRLB. But long delays can occur in large part because the current process allows for manipulation of the timing of elections—and these delays can help cause elections to never even occur. The election process currently works as follows. First, workers discuss the issue among themselves and then gather at least 30 percent (but usually over half) of the workers’ signatures to ask for an election. Then the NLRB attempts to set up an election where a majority of workers must vote to form a union in order for one to be certified.

The proposed rule would address the roadblocks that commonly are thrown up when the NLRB attempts to set up an election. There is currently no limit on employers’ or unions’ ability to demand a pre-election hearing on most any issue, including the eligibility of employees to vote, or the scope of the bargaining unit, which can be used to delay an election. Many of these issues could be resolved after voting, and others are manufactured for purposes of delay and don’t need to be resolved at all, ever. As former NLRB General Counsel Fred Feinstein explains, “The problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating Board procedures to create delay.”[1]

Imagine if political parties could manipulate presidential elections the same way to delay the general election for months. Part of what makes our democracy work is that election dates are set in stone and we can count on, for example, voting in national elections every other year on the first Tuesday in November.

Perhaps even more damning of the current system is that, according to research by John-Paul Ferguson of Stanford Business School, elections frequently don’t even happen. Thirty five percent of the time that workers file a petition for an election, the election does not end up happening.[2] (See chart)

when workers file petitions for union elections, 1 in 3 never occur

By standardizing the process for elections, the proposed rule would help put an end to these ploys to bend the rules and skirt the law. Specifically, the proposed rule to be published in the Federal Register tomorrow calls for several changes, including:

  • Allowing electronic filing of election documents and communication with workers via email so that all parties receive important information sooner
  • Encouraging all parties to identify legal concerns early in the process
  • Consolidating hearings into issues that should be addressed pre and post election
  • Providing voter lists early in the process

Some conservatives, including those at the Heritage Foundation and the National Right to Work Committee, claim that a standardized process would hinder the ability of employers to explain their views to workers. Yet the NLRB election process—with its multiple steps—gives more than ample opportunity for employers and unions to educate workers.

Indeed, research demonstrates that employers already communicate well before elections occur. Employers’ views on unions are commonly incorporated into new-hire orientations, according to numerous academic and advocacy group reports.[3] Even when employers don’t start their campaigns upon hiring, their communications often start long before the filing of the petition.

In fact, much pre-election communication crosses the line into illegal intimidation of workers. Kate Bronfenbrenner, a senior lecturer at Cornell found that 24 percent of all serious violations of the National Labor Relations Act, such as illegal harassment, coercion, or firing, occur before the petition is filed.[4] These tactics also help cause elections to not even occur. In the face of endless delays and such unrelenting, and often illegal, employer opposition, workers sometimes give up and call off the election, as they do 35 percent of the time, according to John Paul Ferguson’s research.

In short, the data make it clear that employers have ample opportunity to express their views—and far too often go well beyond just education, crossing the line into illegal activity.

This indicates just how modest the current NLRB proposal is, and how much more needs to be done to truly give workers a fair choice. The NLRB proposal would do nothing to stiffen penalties or otherwise limit illegal actions against workers, but rather would merely standardize the election process and ensure some of the obstacles that prevent workers from exercising their right to vote are removed.

All workers deserve a fair and consistent process that enables them to make their own choice about whether to form a union. The NLRB’s proposed rule to standardize the election process is a modest, but important step to help make the union election process fairer.

David Madland is the Director of the American Worker Project at the Center for American Progress Action Fund.

Endnotes

[1] Fred Feinstein, Testimony of Frederick L. Feinstein before the Commission on the Future of Worker-Management Relations, September 29, 1994, available at http://digitalcommons.ilr.cornell.edu/key_workplace/341.

[2] John-Paul Ferguson, “The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999 – 2004,” Industrial and Labor Relations Review 62 (1) (2008): 3-21.

[3] Gordon Lafer, “Neither Free Nor Fair: The Subversion of Democracy Under NLRB Elections” (Washington: American Rights at Work, 2007); John Logan, “Consultants, lawyers and the ‘union free’ movement in the USA since the 1970s,” Industrial Relations Journal 33 (3) (2002): 200 – 201; Ryan Lamare, “Employer Communications on Unions Are Ongoing” (Washington: American Rights at Work, 2011).

[4] Kate Bronfenbrenner, “No Holds Barred—The Intensification of Employer Opposition to Organizing” (Washington: Economic Policy Institute and American Rights at Work Education Fund, 2009).

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