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….
New Orleans One result of the proposed new NLRB election rules, if and when adopted, may require a shift in post-election strategy.
A union will know the results of the election and whether or not the challenged ballots on any unit questions affect the outcome or are aggravations waiting for hearings. Either way this would mean that the long delays for hearings, decisions, and the potential for appeal to the Board in DC could mean lengthy waits for certification triggering collective bargaining.
Unions may now need to develop strategy and tactics for mounting post-election campaigns to try to do two things. First to firmly establish the union as a reality in the work, regardless of the NLRB, certification, or bargaining, by electing stewards, defining issues, and taking direct actions on the job around issues and interests, clearly demonstrating concerted, protected activity. Secondly, the union will have to apply these tactics and others to convince the employer to abandon or negotiate out the unit issues that are slated for hearings in the interest of obviating hearings and accelerating the process to bargaining. Some of this will be standard operating procedure in settling hearing issues at the 11th hour before the hearing starts, similar to the practice now before representation hearings which are frequently delayed for last minute bargains or caucuses between the parties.
The more the union establishes itself and engages the employer on these issues in “campaign mode,” the more likelihood of a quicker and better settlement. Too often now post-election work means withdrawing the organizing staff, bringing in the union officers or reps to begin the preparation for collective bargaining and selecting the committee members. In the new regime with a quick election the campaign strategy should involve a “follow through campaign” of putting the pedal to the metal and pushing the employer to recognize any victory and abandon hearing and unit questions to the union’s interest PDQ…pretty damn quick.