New NLRB Rules: Best for Bigger Units

NHonda Plantew Orleans Where the new rule making by the NLRB on elections offers potentially significant advantages would seem to be on larger units, if unions are willing to marshal the will and resources to go big.

The average representation petition for years has been relatively small, usually less than 50 workers.  This battle to rebuild density has been a fight of a thousand cuts largely because of the dilatory practices allowed by the NLRB and the long drawn out delays to get to election.   Last year’s NLRB report indicating a win-rate of more than 60% for unions largely indicates the current organizing and resource decisions made by unions to only file on virtually “sure” things.   A decade ago before even greater alienation and atrophy set in around NLRB-certifications, the win rate for unions overall was hardly 50%.

Rethinking yesterday’s analysis here, I think I overlooked the obvious.  Unions will still have to swallow the garbage since unsettled eligibility and unit questions would end up with challenged ballots which could determine election outcomes.  A union would only risk challenges and post-election hearing issues on either “make or break” job classifications for bargaining power or on classifications where union support was certain.  Until the impact and experience with quicker elections allowed organizers to gain some confidence in picking outcomes, unions would be foolhardy to take any chances.  In short, unions even under the new rule will have to do everything possible to get a stipulated election on the quickest possible framework and come to agreement with company positions in order to eliminate the need for post-election hearings.  So, I’m not sure that there will be more hearings, though I still suspect there will be (should be!) a lot more unit-clarification (UC) hearings once certified and after sufficient time has elapsed for the union to credibly argue new information on the unit and jobs based on representation experience.  The certification delays that I suspected on legal challenges may be similarly constrained, if the union adopts a strategy of “anything for a stip and quick election,” since the company lawyers would be left only being able to challenge actual election conduct, which is pretty thin soup, and should get thinner with quicker elections.   If organizer’s are willing to adopt a “grin and bear it” strategy on elections, this might work.

Right now the window for an election is between 25 and 30 days after what is called the “decision and direction of election.”  This is an interesting gray area in the rule making.  To the degree the case handling manual and normal election procedures have settled into this calendar to allow time for an appeal to the NLRB in DC to overrule or review a regional director’s decision, this could open the door for a significant shortening of the time to election.  I still suspect that most contested elections would not be able to be held less than 21 days after the petition is filed, but that might shift down to 17 days from filing or 10 days after the fixed 7 day proposal for a hearing, which will also accelerate the time that the agent and union can push for a stipulated election.

Aside from these speculations about election tactics and strategy, the quicker timelines made larger units feasible organizing targets again in ways that they have not been for decades.   The long delays, especially on large units (250 to 1000+ workers) and the fact that delays have measurably reduced win rates to hardly a third of contested elections has depressed drives in such units, because they obviously require more investment of organizers and time to bring to majority and prepare for filing.  No union has the depth of resources that would allow such steady resource drains on such low prospects for success.

Under the new proposed rules if a union files at 65 to 70% card strength on larger units and is willing to grin and bear it on the unit, could get an election within 21 days of filing, and is able to control communication on the organizing drive to a period close to filing, then win rates could soar.  An organizing equation with four variables though is by definition a risky proposition.  The most out of control variable is the ability to “control communication,” by which I really mean whether or not the drive is sufficiently under cover that early detection is prevented.  The new management tactics and strategy to confront the rule making changes, will invariably mean more “union avoidance” work in any unit seen as susceptible to unionization and a fierce onset of anti-union campaigning at the first sign of any union activity by management.  The slower start up which assesses strengths and weaknesses in the unit with a later explosion in the final two weeks against the union will have to be abandoned and replaced with a “total war” strategy by management from the first warning sign in order to try to overturn the union’s early support on a quicker timeline to election.

Can campaigns in large units be kept quiet to filing?  It is very difficult to imagine that is likely.  Should campaigns in large units be kept quiet to filing?  I belong to the school that believes wherever possible that the sooner that leadership is established and the workers “own the union” and go public with the drive, the harder it for the company to weaken the workers’ strength, since they have already gone through a decision process and are steeled to win and withstand the company campaign.  This “public drive” strategy is often confusing to company’s but to the degree their strategy goes into a default “total war” response, a union would know quickly whether they could survive in the workplace with or without an election.

An early, quiet committee building strategy accompanied by an effective overwhelming quick blitz to reach card strength over 65% followed by an immediate public coming out of the leadership and campaign while filing for an election would seem to be the best organizing strategy for unions that still have the resources and will to organize such campaigns.  If the NLRB does its job and produces elections between 14 and 21 days after filing, unions will win a lot of units and will win in big ones to boot.

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