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.


NLRB Looking at Free Rider Pay-to-Play Dues Obligation

duesNew Orleans     The National Labor Relations Board (NLRB) took a step that might be small, but at least seems in the right direction.  They have solicited legal briefs, and no doubt there will be many from both the union and management side of the bar, on the question of dues or fee obligations for nonmembers in private sector employment who are represented by the union in grievances and disputes.  This may seem like a small thing to the general public, especially since so few workers are now represented by unions in the private sector, hardly more than one in twenty, but the amount that it rankles anyone who understands the issue is huge.  This problem also only affects the subset of workers in the half of the United States that live in right-to-work states which means even fewer of those workers, but that’s still a big number.

Nonetheless, here’s the contradiction involved in right-to-work states under the current practice and operating assumptions of the National Labor Relations Act.  When a union is certified after an election or by demonstrating a clear majority of support from the workforce and achieving voluntary recognition from an employer, the only thing a union
really “wins” are the rights to attempt to bargain a contract over a twelve-month period, if done in good faith, and the fact that the employer cannot legally challenge the union’s majority for that period.  The union under US labor law is the “exclusive representative” of all of the bargaining unit workers.All individual deals that an employer might try to cut with a worker, no matter how favorable, are illegal, because of the exclusivity of the union’s representation.  Any issue involving wages, working conditions or terms and conditions of employment must be exclusively handled through the union.

If a collective agreement is negotiated successfully, which believe it or not, does happen sometime, maybe in fact about half of the time, then whether in a so-called right-to-work state or a union-shop state, the union under US law continues to be the exclusive representative of all of the workers, regardless of whether the worker decides to join and pay membership dues or in non-right-to-work states pay an agency fee that is less than membership dues, but is mandatory if successfully bargained in the contract.  In right-to-work states though because the union is the exclusive representative, they have a “duty of fair representation” for each worker, regardless of their membership, and here’s where the wound cuts deeply.  If a nonmember has a beef and it is legitimate, the union has the obligation to pursue justice for that worker just as they would
for any dues paying member all the way through arbitration which can cost thousands of dollars.  These workers are called “free riders,” because the other workers who are paying dues are financing the union and paying for them to get a fair deal even while that worker is shirking any dues payment obligations.  Clearly this is unfair all the way
around and, worse, the stories of it crippling entire local unions are legendary, and the number of DFR or duty of fair representation cases filed before the NLRB on such cases are numerous.  Talk about false entitlements!

Professors commenting on the NLRB’s initiative are already clear that there is nothing in the Act or elsewhere that has ever barred some form of fee payment for members in right-to-work states who are accessing union services.  If there is no legal bar to instituting a new system, then we’re only left with the ideological and class objections that divide labor and management, so nothing new there under the sun.  Even righting this contradiction and injustice won’t change the predicament that unions find themselves in, but it least unions would have a fair system in the workplace and a better shake representing private sector workers, no matter where they live in the country.

A fix here will at least take the biggest devil out of the details of a union representing all the workers equally and exclusively.


Turner Corn – Remember November