The Building Tradesman Newspaper

Friday, December 16, 2011

Delays, denials: NLRB seeks a faster lane for union organizing

By The Building Tradesman

WASHINGTON D.C. – The anti-union fervor that permeates the vast majority of the Republican Party and the big business community has been brought front and center in a case that’s pending in front of the National Labor Relations Board.

On Nov. 30, the NLRB voted 2-1 on a proposal that would speed up union organizing elections and establish union-friendly rules that provide some direction on which workers could be allowed in or out of a bargaining unit in order to be eligible to vote.

Some union representation elections are able to be delayed by employers for years – which usually wears down and eventually kills organizing drives. Republicans are angry with the NLRB, maintaining that the new rules could shorten that time to as little as 10 days.

The crux of the matter is that unions believe they would have more success organizing if employers had less time to delay union organizing elections. Unions have long maintained that anti-union employers delay organizing votes through the courts or by other challenges in order to hold captive audience meetings and threaten workers with layoffs, work rule changes or other sanctions if a union is voted in.

The GOP and many employers contend the opposite: that shorter time periods allow union organizers time to make their pitch, but take away employers’ time to sell the company’s position.

Sen. Tom Harkin (D-Iowa) ranking member of the Education and Workforce Committee, said the real reason behind the effort to cripple the NLRB’s rulemaking effort is to silence the voice of working people.  “This is a political attack campaign on what they see as their No. 1 enemy – labor, the only group with the power to stand up to them,” he said.

Said California Rep. George Miller, top Democrat on the House Education and the Workforce committee: “What we see is endless delays, endless running up of legal costs of attorneys on both sides, all in the idea of buying time for the employer to intimidate the employees from joining the union.”

The NLRB’s vote is a first step that seems timed to get this rule in place before the end of the year. The NLRB normally has five members, but has had only three for much of Obama’s presidency because Republicans in the Senate have refused to seat any more of the president’s appointees to the panel.

With a Democrat in the White House, there are currently two Democrats and one Republican on the NLRB panel – enough for a quorum. But at the end of this year, Democrat Craig Becker’s term will expire, and Republicans are expected to continue holding up the appointment of any additional NLRB members – a quorum-less situation which would effectively halt the board’s rule-making ability.

There’s even more to the NLRB saga. The lone Republican panelist, Bryan Hayes, threatened to be absent when the vote was taken or resign his seat so that the bargaining rules couldn’t be moved forward. He ultimately chose to stay in his position and vote no.

“Make no mistake about it,” said AFL-CIO Secretary-Treasurer Liz Shuler. “Their goal is to reduce power of working people across the country and incapacitate the board.”

The AFL-CIO referred to the NLRB’s proposals as “modest changes” to labor law. AWall Street Journal article more dramatically referred to the changes as “some of the most sweeping changes to the union organizing election process since 1947.”

In addition to being upset at the proposed shortening of the time period for union elections, Republicans say the NLRB rules also prevent employers from challenging whether certain workers are part of a given bargaining unit and are thus ineligible to vote.

Their position harkens back to a failed argument raised during the G.W. Bush administration, when Republicans threatened to curtail union voting rights by allowing employers to classify some workers – such as nurses who oversee subordinates or construction journeymen who oversee apprentices – as “supervisors,” making them ineligible for union representation.

Under the NLRB’s proposed rule, those employer challenges would be deferred until after a union representation vote – another union-friendly way to eliminate stalls in the process.

“The vast majority of NLRB-supervised elections, about 90 percent, are held by agreement of the parties – employees, union and employer – in an average of 38 days from the filing of a petition,” said NLRB Chairman Gaston Pearce. “The amendments I propose would not affect those agreed-to elections,”

Instead, he said they “apply to the minority of elections held up by “needless litigation and disputes which need not be resolved prior to an election.  In these contested elections, employees have to wait an average of 101 days to cast a ballot.  As several employees testified at our hearing in July, that period can be disruptive and painful for all involved.”

Tactics that businesses use to delay and defy union organizing include pre-election appeals to the board and “raising irrelevant issues in pre-election hearings,” turning the hearings into legal battles, Pearce said.

The board’s proposed rule “would simply address these procedures, by limiting subjects that can be raised in a pre-election hearing to those that are directly relevant to the election, and postponing any election-related appeals to the board until after the election,” Pearce said.

In an impossible attempt to curb the NLRB’s new rules, the Republican-controlled U.S. House pushed through a vote on Nov. 30 that would allow employers to skirt the rules by continuing current practice of allowing employers to legally challenge elections before the voting takes place. Their bill would also require a 35-day minimum between the time a formal call for a vote for workers to unionize, and the election itself. The bill has no chance to pass the Democratically controlled Senate – or an Obama veto. (Press Associates contributed)