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Working In These Times

Thursday, Dec 22, 2011, 12:14 pm

New NLRB Rule May Be High-Water Mark for Obama-Era Labor Reform

BY Mike Elk

WASHINGTON D.C.—With a 2-1 vote, the National Labor Relations Board yesterday finally adopted a controversial rule that seeks to speed up union elections by delaying most of employers' election eligibility appeals until after the election is held. It will take effect on April 30, 2012. The rule change is one of the few pieces of labor law reform to occur since President Obama's inauguration.

“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said NLRB Chairman Mark Pearce.

The Chamber of Commerce was quick to file a lawsuit opposing the law in District of Columbia Federal Court to block the rule change from coming into effect.

Currently, employers seek to delay union elections by filing frivolous appeals in attempt to hold more intimidation session. Because of those appeals, 10 percent of all elections in the United States are held (on average) 101 days—more than three months—after a union filed a petition, according to the National Labor Relations Board, which oversees union elections and enforces federal labor law.

“This rule has no conceivable purpose but to make it easier for unions to win elections,” Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits, said in a statement. “While couched in technicalities, the purpose of this regulation is to cut-off free speech rights to educate employees about the effects of unionization. The elimination of these rights has long been on the wish list of organized labor and the Board has dutifully granted that wish today.”

However, it’s unclear if the rule will indeed make it easier for unions to organize as union busters have already begun to adjust their strategies to compensate for shorter election.  A recent In These Times article by Josh Eidelson showed that anti-union strategies groups have already began developing a strategy to delay with potentially shorter union elections. 

Statistics also show that many employers engage in anti-union campaigns before a union election petition is even filed with the NLRB. Research by Kate Bronfenbreener of Cornell University and Dorian Warren of Columbia University finds that “30% of serious violations against workers by employers occurred 30 days before the petition was filed and 47% percent of all serious allegations against employees occurred before the petition was filed.”

“It’s good news that the NLRB has taken this modest but important step to help ensure that workers who want to vote to form a union at their workplace get a fair opportunity to do so," AFL-CIO President Richard Trumka said in a statement. "Many more improvements are needed to protect workers’ rights. We hope the Board will quickly move to adopt the rest of its proposed reforms to modernize and streamline the election process."

The NLRB, however, is likely to become inoperable as board member Craig Becker’s’ term ends at the end of the year and the GOP has vowed to block any new appointees, whom if confirmed, would make it operative again.  

At the beginning of the Obama administration, there was some hope that President Obama would help pass the Employee Free Choice Act or a compromise version of the bill, making it more difficult for companies to engage in union busting. Nothing happened. Likewise, the administration has failed to enact executive orders that would prohibit federal contractors that engage in illegal union busting from receiving federal contractors as I previously covered.

Thus, the new rule could ultimately stand as one of the greatest pieces of labor law reform carried out under President Obama.

Mike Elk wrote for In These Times and its labor blog, Working In These Times, from 2010 to 2014. He is currently a labor reporter at Politico.

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