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Working In These Times

Tuesday, Dec 13, 2011, 10:46 am

Union-Buster to Managers: Fear the New Election Rules—and Hold 5 Meetings

BY Josh Eidelson

Anti-union firm warns proposed NLRB rules could make it harder to use supervisors to shut down organizing.

Days after the National Labor Relations Board voted to proceed with revised union election rules, the anti-union Labor Relations Institute held a “webinar” for human resources professionals to discuss how to remain “union free.”  “Now is the time,” said LRI’s Philip Wilson, who ran the webinar/ conference call.  “If you don’t have a strategy for a quick election environment…you’ve got to get it now.  You have ninety days. The clock is ticking as we speak.”

Founded in 1978, LRI provides companies with anti-union attorneys, videos, and campaign templates.  It claims that its products are used by employers in one out of five union recognition elections in the United States. 

As Mike Elk has reported here, the NLRB’s proposed rules are a modest change with the potential to reduce management’s ability to use frivolous legal challenges to buy time for anti-union campaigning. Such stalling is one of several issues that has led some unions to abandon NLRB elections entirely.

But in Wilson’s telling, the potential changes are “terrible… It shows that they’re in the pocket of labor unions.” Wilson told his audience that it was a “bombshell” that GOP NLRB member Brian Hayes decided not to follow through with a threat to paralyze the board by resigning. He warned them to expect unions to file more election petitions under the new rules, and that “if they have more success, then they’ll probably be encouraged.”

On the call, held December 6, Wilson predicted that the average under the new rules would be 24 days from when a union files for an election to the day it takes place.  During that time period, he urged employers to hold five anti-union meetings with employees. In a five-day-a-week workplace, that would average more than one captive audience meeting every four days of work. The new election rules wouldn’t restrict such meetings; who attends, for how long, and who can speak remain entirely up to management.

LRI’s next webinar will be devoted entirely to showcasing its suite of anti-union products, including sample campaign presentations and supervisory trainings. Wilson also urged all the HR professionals on the call to use the threat of “ambush elections” to wring a larger budget out of their own bosses. “This is a great opportunity for those of you that are in HR and labor,” he said, “to go to company leaders and get resources.”

Wilson expressed particular concern that the new rule would make it harder for management to enlist supervisors in getting the workers they supervise to vote down a union. Because the new rules would postpone most challenges regarding whether particular workers would be part of the new union’s bargaining unit, Wilson warned that employers could go into an election without certainty about whether or not to involve some supervisors in busting the union. 

You “cannot rely on that supervisor to, for example, campaign on your behalf,” said Wilson. “You would not want to include them in conversations about the campaign,” even though that supervisor “might be the only person you can rely on in your communications.”

Left unsaid: Supervisors’ effectiveness as union-busters doesn’t just rest on good will from employees – it rests on the authority they command over them, as people empowered to help get an employee fired, or make their job miserable, with or without a union.

Wilson said that an unidentified webinar participant had asked whether a company (presumably including his/her own) could refuse to provide the union a list of employees out of “concern of employee privacy.” Wilson responded that that would be illegal, and could get the employer slapped with a bargaining order from the NLRB, forcing them to go directly into contract negotiations with the union.

Wilson said that although legal challenges to the new rules were inevitable, he expects the rule change to be passed this month and to go into effect in March: “The bar is pretty high for getting an injunction against a regulation…You’ve got to plan for the rule going into effect.” 

He mentioned that the Republican House could use its “power of the purse” to pass legislation denying the NLRB all funding for holding union elections, though it wouldn’t pass the Senate. He complained that the NLRB Inspector General’s investigation into attempts to bribe Hayes to resign was itself a bid to “intimidate him from resigning,” and said Republicans may retaliate by requesting documentation of the two Democratic NLRB members’ communications with labor unions. He also expressed confidence that congressional Republicans, by refusing to recess Congress before the 2012 elections, will be able to avert any recess appointments by Obama to the NLRB, and thus the Board “will not be able to accomplish anything.”

While it’s always tempting for unions to crow over the warnings of anti-union consultants, their assessment of the threat of increased union victories should be taken in the same vein as alarm companies’ warnings about threats of increased burglary.  Any labor development – unions merging, unions splitting, proposed laws – is an opportunity for consultants to hawk their wares.  As Columbia Professor Dorian Warren told In These Times in September, the reality is that companies don't wait for a union election filing to begin anti-union campaigning. But with LRI selling a package of five captive audience meetings, some will no doubt buy it anyway.

Wilson declared himself sympathetic to Hayes’ decision not to resign, on the grounds that “if the board is going to survive as a political entity, more and more games played by the parties isn’t going to help…the board’s credibility is at an all-time low.” 

At a time when Republicans like Mitt Romney are calling for the NLRB to be transformed or abolished, Wilson’s comment could be seen as an attempt to position himself above the fray—or as a tacit acknowledgement that the current labor law regime isn’t really so bad for anti-union employers.  It’s certainly lucrative for “union avoidance” specialists.

Josh Eidelson is a freelance writer and a contributor at In These Times, The American Prospect, Dissent, and Alternet. After receiving his MA in Political Science, he worked as a union organizer for five years. His website is http://www.josheidelson.com. Twitter: @josheidelson E-mail: "jeidelson" at "gmail" dot com.

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