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The NLRB Ups the Ante

Fall 2011
Today, unions decry the current rules governing elections despite the fact that they now win nearly 64 percent of all representation elections. Unions claim the law is cumbersome, bureaucratic, and slow.
Today, unions decry the current rules governing elections despite the fact that they now win nearly 64 percent of all representation elections. Unions claim the law is cumbersome, bureaucratic, and slow.
As we predicted months ago in an Area Development article, "Employers Beware: A New Push for Unionization", the National Labor Relations Board (NLRB) is continuing its pro-union agenda with all the enthusiasm of a cat chasing a canary.

On June 21, the NLRB published the proposed changes it wants in rules governing union representation elections. When adopted, these rules will make the jobs of union organizers easier by handcuffing management and fast-tracking representation elections in which a company's employees vote whether or not they wish to unionize.

Following the defeat in Congress of the Employee Free Choice Act, which would have allowed "card check unionization" and eliminated nearly all representation elections, union leaders are trying a different way to reach their easy organizing goals. They know "if you can't legislate, regulate." And the NLRB regulates labor relations in America.

New Rules
The NLRB's proposed rule changes upend the "level playing field" standard it has traditionally used to balance the oft-conflicting interests of unions, employers, and employees. The new rules would:

  • Require management to turn over to the NLRB the names, job titles, shifts, phone numbers, home addresses, and e-mail addresses of all employees within two days of any union petition;

  • Reduce significantly the time limits of election campaigns, cutting management's chance to tell "its side of the story." Experts predict election campaigns would be cut to less than 20 days from the average of 51 days achieved in 2008 (the most current data available);

  • Restrict management's "free speech rights" by hobbling its ability to address issues and inform employees of pros and cons of unionization during its campaign;

  • Defer challenges to voter eligibility until after the election;

  • Defer all other campaign objections until the election vote is completed.

Taken together, these new rules will slash the time between a union petition and election and severely restrict management efforts to tell "its side of the story."

The NLRB has already issued rules requiring employers to post notices informing employees of their right to unionize, including the "advantages" of unions. It may also be planning to make permanent the restrictions on management that now apply only after a union files a petition. Time will tell.

New Directions
The NLRB is also moving in other new directions, as indicated by its actions taken against the Boeing Company. The board, following the ideas of its Acting General Counsel Lafe Solomon, is sending signals to American industry about "nipping in the bud" any possible labor relations violations on the part of corporations.

Boeing has endured one long white-collar and four lengthy blue-collar strikes in its Pacific Northwest facilities since 1989. Needing a second assembly line to fulfill the hundreds of orders for its popular new 787 Dreamliner aircraft, Boeing Chairman and CEO W. James McNerney, Jr., said his company would locate its new facility in North Charleston, S.C., to reduce Boeing's vulnerability to delivery disruptions caused by work stoppages. The International Association of Machinists, which represents Boeing's blue-collar workers in Washington and Oregon, claimed Boeing's move was in retaliation for its past strikes, a protected activity, and hence, an unfair labor practice. The NLRB agreed, even though no jobs have been lost in Washington, and is pursuing these charges vigorously. No one knows the ultimate result, but experts predict it will probably be decided by the U.S. Supreme Court several years from now. Until the matter is finally resolved, the immediate result is to chill the interest of unionized companies in building new facilities in right-to-work states like South Carolina, where the Boeing facility opened in June 2011 with 1,000 employees.

What Is the National Labor Relations Act?
The 1935 National Labor Relations Act (NLRA) governs the country's labor relations by secret ballot elections in a system of industrial democracy. The NLRA gives employees the right to vote whether they want to be represented by a union or not.

The NLRA is administered by the National Labor Relations Board, a quasi-judicial federal agency. Appointed by the president and confirmed by the Senate, its members decide the detailed rules governing union and management behavior and how elections are conducted. Despite criticisms by labor and management, it has done a pretty good job over the years - those who complain have almost invariably lost their elections.

Today, unions decry the current rules governing elections despite the fact that they now win nearly 64 percent of all representation elections (see accompanying chart). Unions claim the law is cumbersome, bureaucratic, and slow. They argue companies have unfair "advantages," most notably, the right to give "captive audience" speeches to employees on paid time in order to present management's views. Unions avoid saying they have the right to make home visits to employees to promote their claims, something now denied to management under NLRB rules.

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