Is the NLRB Getting Better?

indexNew Orleans   After a lengthy rule-making procedure, legal challenges, and a host of complaints from the right and the business community, perhaps one and the same thing, but that’s a topic for another day, the National Labor Relations Board (NLRB) issued new rules that they claimed would speed up certification elections to determine whether a union would be able to represent bargain unit workers in collective negotiations for a contract. We were skeptical that it would make much difference. Our position is evolving from that point to “we’ll see,” but so far our early experiences, after avoiding the NLRB procedures for some years, are trending positive.

We’ve filed for two elections over the last two weeks as Local 100 United Labor Unions sought to represent 42 janitorial workers in New Orleans and 63 nursing home workers in Atkins, Arkansas. The janitorial unit on the fast track ended up with the employer giving us voluntary recognition almost as quickly as they received their copy of the petition. We had previously had contacts with the company’s ownership, so perhaps that wasn’t a fair test. In the nursing home unit we are being told by the case officer that the election might be as soon as 3 ½ weeks after the petition was docketed by the NLRB, if everything proceeds on schedule, and if that happens, that would be the equivalent of lightning speed for the Board. Big “if,” but it could happen.

There are some new twists.

Some parts of the process are now automated especially the docketing. The petition is submitted online for example and a confirmation is sent almost immediately that is time dated and starts the ball rolling, making it a lot easier, even if not that much quicker.

One new requirement is that the union now alerts the company that we are seeking to represent the workers simultaneously via facsimile or otherwise. The copies of the authorization cards requesting the election are no longer submitted until later, but that doesn’t change the clock. Our old trick of filing on a Friday at 4:25 pm to get docketed by the NLRB then and start the clock running, knowing that the notice to the employer would not be mailed until Monday, used to burn 4 or 5 days off the clock without as much opposition. Now, they know immediately, but if it still ends up with a quicker election then that’s OK, and if they don’t work over the weekend, the clock is still ticking until someone checks the fax machine.

The real deal will be whether or not the claims about bypassing hearings on procedural or marginal issues until after the elections is successful. Our nursing home petition in Arkansas will be a better test since such units frequently end up in either hearings or last minute stipulations swallowed by the union even when inappropriate in order to finally hold the election, often creating weird unit configurations for bargaining and servicing later. I read that the Service Employees president Mary Kay Henry said they got an election and won in a 1000-person hospital unit in California in amazing time as well.

Take all of this new data along with other NLRB decisions like putting the union-busting Teach for America 2-year contract workers into charter school bargaining units, standing up for adjunct teachers in higher educational units, and coming decisions on subcontractors and co-employer status, and change may be coming from the NLRB that makes a difference even if much less than we hoped for or need to level the playing field between workers and their bosses. We need to start watching all of these developments closely to see if a window is really opening or if this is just a crack of light finally breaking through.

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