Do NLRB Election Changes Matter If No One is Organizing

Employee Free Choice Act Labor Organizing National Politics

            New Orleans               The surviving members of the National Labor Relations Board (NLRB) published a final rulemaking on some “modest” (quoting Rich Trumka of the AFL-CIO) changes to election procedures this week.  The U.S. Chamber of Commerce has quickly announced that they will file suit to block the regulations as an assault on “free speech” before they are scheduled to take effect on April 30, 2012.  This surely is a political posturing exercise on their part in order to prevent more extensive and perhaps more meaningful proposals from emerging in the workplace, because these changes are at best technical and though important will not change the organizing climate significantly for workers.

The new rule modifications primarily affect elections that go to a hearing before the NLRB and involve appeals.  The NLRB in their release of the rule indicated that only about 10% of elections are currently going to hearing, since mostly the parties are agreeing to stipulated elections.  The number of elections in the last available year (2009) only totaled 1304, so we are talking about 130 elections involving perhaps 7000 workers.  Some of these hearings are quick and simple matters for unsophisticated employers and attorneys hoping for the best, so only a subset of these 130 elections actually involve appeals.   Previously I’ve argued that this is not insignificant because the larger the unit being organized, the more likely the hearing and the appeals, and if a union is stuck in that rut it is absolutely a world of pain with a recent Berkeley Labor Center report, based on a FOIA filing with the NLRB, indicating that the delays will of elections will run from more than 4 months to close to 6 months.  In these cases the new rule will be helpful in allowing the election to proceed and forcing the lawyers to argue later and limiting and consolidating the appeals, but….

Comparing the 2009 NLRB stats back to 1997 figures is sobering on several scores.  Unions were winning more than 50% of elections filed in that period and won an astounding 66% of elections filed in 2009.  Unfortunately despite winning two-thirds of our elections, we certified only a little more than 44,000 workers, and that likely means only at best half of those or about 22,000 ended up from this process under a collective bargaining agreement.  The number of workers involved in elections filed is down to less than one-third of what it was in 1997:  224,262 then and 69,832 now!   Elections are off correspondingly from 3261 filed in 97 and only 1304 in 09.

Gamely, labor spokespeople and other commentators argue that many more are being won in non-board organizing, and undoubtedly that’s true, but no one would argue that the winning significantly or at scale sufficiently to offset our steadily shrinking numbers.  Even SEIU reported membership losses in recent years for the first time in decades.  There are huge concerns that the AFL-CIO reported membership strength is wildly inflated.

Past all of the sound and fury about the modest nature of these rule changes and the continuing hope, no matter perhaps how unrealistic, that there may be more substantial changes in election rules shortening the time and giving unions more easy access to the workforce through telephone and emails, it seems impossible to deny that the biggest problem for unions besides the fierceness of employer opposition is our failure to continue to emphasize organizing.  The numbers seem to indicate that we are on some kind of long, terrible organizing holiday.

We need to get back to organizing before it’s too late.