Tag Archives: National Labor Relations Board (NLRB)

National Labor Relations Board Twists the Knife in the Heart of Unions and Workers

New Orleans    It may be hard to remember, but the National Labor Relations Board (NLRB) is supposed to ensure the right of workers to organize and safeguard the stated public policy expounded in the National Labor Relations Act (NLRA), which favors collective bargaining. Under the Trump administration, the NLRB is going out of its way to attack the Act. We are not talking about the usual thrust and jab common to any new administration. Trump’s NLRB and General Counsel are gutting the Act like a fish and then stabbing that knife into the heart of workers, their rights, and their unions.

During the eight years of the Obama administration, the NLRB had the opportunity to recast some contentious issues more favorably for workers and their unions.  Progress was made, though less than unions and organizers had hoped to see. Elections were processed more quickly.  Employers could not challenge a unit before the election, so they could not run out the clock and extend their campaigns through unnecessary hearings and fake challenges to specific jobs or bargaining unit descriptions.  The NLRB made a long overdue and significant update to the determinations for joint employer status, a key issue for franchises and their overlords like McDonalds.  Acknowledging joint employer control of the workforce would have finally made the primary, deep-pocketed company responsible for the labor practices of their franchisees.  Graduate student unions were allowed to be certified and protected under the Act.  Email communications by workers complaining about working conditions and organizing their co-workers were allowed and were protected, concerted activity within workplaces rather than solely company-controlled property, and Facebook rants were protected.

Three years into the Trump term, the NLRB now has three Republican appointees and only one Democratic appointee on the five-member board, and these Obama-era initiatives have either been rolled back already or are under attack. Things will not get better any time soon.  The last Democrat’s term concludes at the end of 2019, and it’s unlikely that a new member will be appointed in 2020. That leaves a 3-0 partisan board to steamroll over workers’ rights.  The decisions are guaranteed to become worse.

The actions of the Trump NLRB and the proposals of the current General Counsel go to the heart of generations of organizing practices and do so deliberately. For example, the NLRA specifies that “an appropriate bargaining unit” can represent workers. It does not require “a” single unit. But in the recent Boeing case emerging from the efforts to organize their South Carolina plant, the Board ruled against this time-honored definition, blocking the certification of a 178-member unit with the larger Boeing workforce.

Furthermore, the General Counsel Peter B. Robb has also proposed to flip the script on presumption of units in order to proceed more quickly to elections, a move that encourages companies to try to delay elections by challenging the unit and forcing a hearing.  He has also proposed a laundry list of reasons an employer can now use to challenge the majority of an incumbent union, forcing it to hold an election to prove its majority.

The General Counsel has also indicated he wants to stop the practice of unions filing charges to block unfair labor practices, known as “blocking” charges – usually actions by the company that taint the election conditions — during campaigns. This proposal is a total union-buster.  Instead of allowing the Regional NLRB supervising the election to postpone the voting while it investigates the charge, workers would be forced to vote in the poisoned conditions that the union opposed.  The election would proceed and results would be held “in the box.” If the charges were not found meritorious, the election box would be unsealed and the votes counted, presumably to the union and the workers’ peril.

Collective bargaining is also under attack.  One of the rock-solid foundations of bargaining prohibits employers from making unilateral changes once an organizing drive has begun. Any unilateral change could be a potential unfair labor practice and could lead to an election objection if it materially impacted the results.  Once a union was certified, the ban on unilateral changes meant that the company had to bargain with the union.  No more.  The NLRB wants to allow employers more leeway, turning upside down the rules governing what bosses can do under management rights.  The new rule seems to be “anything goes” for employers.

The NLRB reported another 11% drop in the filing of unfair labor practices in 2018.  The General Counsel for the Machinists has reportedly commented that we shouldn’t worry, because a lot of this will go away if Trump wins a second term.  Personally, I’m not feeling as secure about that as my brother machinist is.  Meanwhile, the Economic Policy Institute has suggested that the NLRB and the General Counsel have been following the work order set by the U. S. Chamber of Commerce point by point.

Does it matter?  Yes. However, because nothing better is likely to be legislated anytime soon, we need to hold onto everything we can in the current act.

Many unions and organizers have claimed that the failures to improve the protections of the NLRA are so serious that they are not filing for representation elections before the Board, but the statistics indicate otherwise. 1597 elections were filed in FY18 and another 1588 in FY08.  Workers are still organizing under the Act, and that’s a fact.

Like it or not, the NLRA provides both organized and unorganized workers some protections, despite weak and erratic enforcement.  In the contemporary workplace, workers need those protections more than ever.  The rights that remain are themselves organizing tools.

Published first in the Working Class Perspectives on November 18, 2019 

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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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