As Employers Shift Anti-Union Tactics, Will New Union Election Rules Protect Workers?

Mike Elk

WASHINGTON, D.C. — Last week, the National Labor Relations Board (NLRB) proposed a new set of rules that would streamline union elections. Instead of allowing companies to challenge who is eligible to vote in a union representation election before it occurs, the rule would delay most voter eligibility appeals until after the election. This could potentially shorten the time frame between when workers file a petition and when the election was held.

Employers typically aim to delay an election so that they can use the time to intimidate employees to voting against a union. In a pamphlet titled Time is On Your Side,” the well-known unionbusting law firm Jackson Lewis advises employers facing a union election campaign that using election appeals to delay an union election is an opportunity for the heat of the union’s message to chill prior to the election.”

A new study by the University of California, Berkley Center for Labor Research and Education underscores how severe the threat is to workers’ rights when a union election is delayed. The NLRB says that the median union election occurs within 39 days of a petition be filed. However, if employers appeal, the decision elections can be dragged out much longer. University of California researchers found that when an employer filed an appeal and a pre-election hearing was held, the average delay in the election was 124 days.

In addition, appeal challenges are often filed with the NLRB when disputes about which workers should be represented in a bargaining unit occur. To avoid the lengthy appeal process, many unions will negotiate ahead of time with employers (who often have the upper hand in negotiations) to agree on which workers should be included in the bargaining unit and which workers should not.

These negotiations often allow companies to exclude key workers from being eligible for their union by limiting the size of the bargaining unit — thus undermining the strength of workplace solidarity and providing opportunities to move work to non-union sections of a facility.

The study also shows that in cases where elections are delayed, employers tend to engage in much more illegal unionbusting activity in the lead up to an election then when a union election is not delayed. In elections that are delayed by three months or more, the study found that the NLRB filed double the number of complaints against employers for unfair labor practices then in union representation elections that took three months or less.

However, the study raises doubts about the effectiveness of the new NLRB rules even if they are implemented overall. Many employers know it’s best to spread the anti-union message earlier on, before workers even begin thinking of unions. At many companies, workers are forced to watch anti-union videos on their first day of work.

When news of a union organizing drive does reach employers, many employers engage in unionbusting activists before a union election petition is even filed with the NLRB. Forthcoming 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.”

But while the new rules would do much to ensure faster and speedier union representation elections, they might do very little to prevent actual union busting efforts. Employers increasingly realize that the key to unionbusting is to inoculate employees with anti-union messages before a campaign even begins — and when a union campaign does begin, to immediately engage in aggressive (and often illegal) unionbusting.

How effective the proposed NLRB rules will be in preventing unionbusting will largely depend on how quickly employers shift their unionbusting tactics to earlier in the unionization process.

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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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