Houston The National Labor Relations Board’s (NLRB) new rule has survived numerous delays, Congressional attacks offset by a threatened veto, and huge corporate pushback to finally find dry ground and take effect. We have not seen the corporate equivalent of the zombie apocalypse, so the country still stands.
For all the hype the rule itself is “not all that” really. This is not card-check, where the majority of workers’ signatures would be enough to bypass an election and win recognition of the union. This is not a guaranteed quick election within a prescribed number of days of the union filing for representation along the model of Quebec or similar jurisdictions. The heart of the rule is that it obviates management lawyers’ effort to delay the election on play-pretend questions about whether or not certain workers belong in the voting and bargaining unit or invite pie-in-the-sky legal theories to push the election date longer and longer. The new rule doesn’t eliminate these challenges as much as it postpones them, letting workers and their unions vote first, and deal with the mess later. There will still also still be pre-election hearings when there are not stipulated elections, but significant efficiencies have been baked into the new rule to allow simultaneous notifications, electronic submissions, full statements of position, and more localized decisions rather than being caught in the Washington NLRB timeless gridlock.
Many believe that this will shorten the time between filing and elections drastically, but some of that is more in the nature of company lawyers squealing like stuck pigs. In the most recent fiscal year 2013 report the NLRB noted that the median time between filing and elections was 38 days and 37 days with an election agreement but 59 days with a hearing, now it would be theoretically possible, if the bureaucratic stars and moon lined up, to have an election as early as two-weeks after filing. No surprise that comparatively corporate America was calling this an “ambush” or “quickie” election, if it might be one-third the time previously.
How much difference will this change make to unions and our declining numbers? First, it is hard to tell, since clearly it will take some time for union organizing strategists and tacticians to think through the types of campaigns that would be best suited for the new rule and train field organizers in how to maximize its potential. There is certainly no question from all past studies that victory goes to the fleet when unions face an election under the NLRB. Win rates have been statistically over two-thirds even under the old rules when elections were held with a modicum of promptness. Even if this new rule was Christmas, which it definitely is not, it will take some time to embrace after years of unions resisting the quagmire of the NLRB and its hyper legalistic procedures favoring management so extravagantly. A whole generation of union organizers is clueless about dealing with the NLRB, so that’s a problem in assessing the rule’s immediate potential.
The early filings say something, but may be just a blip on the screen. There were about 140 filings between the rules full implementation and now, leading to an average of about 56 petitions per week under the new rule. More recent reports of the NLRB indicate that the average representation petition filings have been about 38 per week, which is almost a 50% bump. That’s still way too little too late, and may even be a statistical aberration where organizers might have held petitions for a week or two waiting for the new rule’s start date.
The short story is that the new rule represents an opportunity, not a panacea for workers and their unions. It won’t be enough to stem the tide, but might help where the will needs a way.
Turner Corn – Union Man Dues