Organizers Say New Rule Speeding Up Elections Gives Bosses Less Time To Crush Union Drives

Dan DiMaggio June 22, 2015

Bosses had often taken advantage of the long wait time before union elections to destroy union drives. Now, they're finding it tougher.

This post first appeared in Labor Notes.

The Nation­al Labor Rela­tions Board’s new elec­tion rule—aimed at rein­ing in employ­ers’ pow­er to stall union dri­ves — went into effect April 14. Orga­niz­ers say the rule has imme­di­ate­ly short­ened the wait between fil­ing a rep­re­sen­ta­tion peti­tion and voting.

Bill Zoda, for one, is impressed. Per diem nurs­es at Brooke Glen Behav­ioral Hos­pi­tal filed on May 20 to join the Penn­syl­va­nia Asso­ci­a­tion of Staff Nurs­es and Allied Pro­fes­sion­als. Bal­lots hit the mail June 9.

In the past, you don’t get an elec­tion that fast,” said Zoda, an orga­niz­er with PAS­NAP. In a week we had a hearing.”

In the­o­ry, elec­tions can now hap­pen as fast as two weeks from filing.

In prac­tice, so far under the new rule, the medi­an wait between peti­tion and elec­tion is 24 days, accord­ing to an analy­sis cov­er­ing April 14-June 5 by the Nation­al Law Review. Com­pare that to 38 days in 2014.

A short­er wait helps work­ers hold out against management’s anti-union tactics.

Time is of the Essence 

Unions often wait to file an elec­tion peti­tion until they have the sig­na­tures of at least 60 per­cent of work­ers in the unit. But this sup­port can wilt under boss pressure.

In a typ­i­cal cam­paign, the employ­er forces work­ers to attend week­ly meet­ings and super­vi­sor one-on-ones — all on com­pa­ny time — to hear argu­ments against form­ing a union.

Often lead­ers are fired. Though retal­ia­to­ry fir­ings are ille­gal, win­ning jobs back in court can take years.

Delay hurts,” says Kate Bron­fen­bren­ner of the Cor­nell School of Indus­tri­al and Labor Rela­tions, because they can fire one more work­er, or engage in five more cap­tive-audi­ence meet­ings or three more super­vi­sor one-on-ones per person.”

Because of these aggres­sive tac­tics, there are far few­er NLRB elec­tions today than in the past. (Unions gen­er­al­ly don’t file for elec­tions unless they expect to win.) The board held 1,407 elec­tions in its 2014 fis­cal year — down from over 7,000 a year through­out the 1970s.

What the Rule Does 

The new rule elim­i­nates a num­ber of the steps employ­ers loved using to slow things down.

It gets rid of the manda­to­ry 25-day wait­ing peri­od between a Region­al Director’s deci­sion on who’s eli­gi­ble to vote (after a pre-elec­tion hear­ing) and the elec­tion itself.

Now, when­ev­er a rep­re­sen­ta­tion peti­tion is filed with sig­na­tures from at least 30 per­cent of the unit, the board will auto­mat­i­cal­ly sched­ule a hear­ing eight days later.

The employ­er is required to file a State­ment of Posi­tion” by noon of the day before the hear­ing, lay­ing out any chal­lenges to the union’s peti­tion — like which job titles should be includ­ed. Issues not raised in this state­ment can­not be brought up at the hearing.

Man­age­ment must also pro­vide a list of prospec­tive vot­ers by this same date, along with job clas­si­fi­ca­tions, shifts, and work locations.

Zoda says the board took these dead­lines seri­ous­ly at Brooke Glen. The hos­pi­tal chain’s lawyers tried to post­pone the hear­ing, but the union and board refused.

They didn’t fill out the posi­tion state­ment in time. Then they tried to raise objec­tions dur­ing the hear­ing — but the hear­ing offi­cer over­ruled them.”

A Big Relief 

The rule also allows the board to post­pone until after the elec­tion any chal­lenges that affect less than 20 per­cent of the unit.

Under the old rules, these ques­tions had to be decid­ed before an elec­tion was sched­uled — a process employ­ers often used to drag their feet. In response, unions had to make the tough cal­cu­la­tion of whether to hold out on such ques­tions or give in just to get to an elec­tion faster.

That was the biggest relief for me — that we didn’t get tied up in the courts like before,” said Leah Raf­fan­ti, an orga­niz­er with the Chica­go Alliance of Char­ter Teach­ers and Staff.

She helped teach­ers and sup­port staff at Urban Prep Acad­e­mies, who vot­ed 56 – 36 on June 5 to join Chica­go ACTS. (The results are still await­ing cer­ti­fi­ca­tion from the NLRB.)

Before, we would have to con­vince the work­ers to hang in there while we set­tled these issues,” Raf­fan­ti said, but now we can get ready for con­tract nego­ti­a­tions, which is more exciting.”

In Uti­ca, New York, 700 dietary aides, house­keep­ers, cer­ti­fied nurs­ing assis­tants, sec­re­taries, and oth­er non-pro­fes­sion­al staff at Fax­ton St. Luke’s Health­care vot­ed to union­ize on May 28 with the Com­mu­ni­ca­tions Work­ers (CWA).

Some of the same work­ers had been involved in pre­vi­ous orga­niz­ing efforts there — includ­ing an elec­tion they lost, after the employ­er dragged out the process for months by appeal­ing the unit.

Some orga­niz­ing com­mit­tee mem­bers had felt so beat­en down by that first cam­paign and how long it took,” said Anne Luck, orga­niz­ing coor­di­na­tor for CWA Dis­trict 1, but it helped know­ing that there was a dif­fer­ent process here…

We had one com­mit­tee mem­ber who, when she heard about the time­line, got teary — because it was final­ly going to hap­pen, after decades of try­ing to form the union.”

New Info

Anoth­er impor­tant change: a pend­ing unfair labor prac­tice charge will no longer auto­mat­i­cal­ly pre­vent a vote. When a union files the ULP, it must spec­i­fy that it wants the elec­tion blocked.

Employ­ers now have to pro­vide the list of vot­ers, known as the Excel­sior list, with­in two days after the board issues the notice of elec­tion. Besides the tra­di­tion­al names and address­es, the list will now also include per­son­al email address­es, and cell and home phone num­bers, if the employ­er has them.

Orga­niz­ers inter­viewed for this arti­cle said they received rel­a­tive­ly few emails, and many were out­dat­ed — but the phone num­bers were useful.

The board first passed sim­i­lar rule changes in 2011, only to see them over­turned when the D.C. Cir­cuit Court of Appeals found that the board (then only three mem­bers) lacked a quorum.

Boss­es Bite Back

Employ­ers are furi­ous, of course. They say the new rule pro­motes ambush” elections.

A coali­tion includ­ing the Cham­ber of Com­merce, Nation­al Asso­ci­a­tion of Man­u­fac­tur­ers, and Nation­al Retail Fed­er­a­tion has filed a law­suit in the D.C. Cir­cuit, call­ing the rule an over­reach of board author­i­ty and con­tend­ing that it vio­lates boss­es’ rights to free speech.

The rule has already sur­vived a sim­i­lar suit — dis­missed by a Texas fed­er­al judge on June 1 — and an effort by Con­gres­sion­al Repub­li­cans to over­turn it. The Texas rul­ing is being appealed.

Mean­while, orga­niz­ers expect employ­ers will start adjust­ing their tac­tics to the new procedures.

Man­age­ment con­sul­tants have been lick­ing their lips, because they can go out and say, Aha! You need us!’” said Bron­fen­bren­ner. They’re going to be telling them to do more meet­ings, to be more aggressive.”

She empha­sized that the rule doesn’t touch the absurd­ly weak penal­ties for unfair labor prac­tices. In pre­vi­ous research, she and Colum­bia pro­fes­sor Dori­an War­ren found that near­ly a third of ULPs are com­mit­ted more than 30 days before a peti­tion is even filed. Short­en­ing the time to elec­tions does noth­ing to stop those violations.

Car­los Fer­nan­dez, anoth­er Chica­go char­ter school orga­niz­er, spec­u­lates that employ­ers might also take advan­tage of the right to file chal­lenges with­in 14 days after the election.

Rather than beat you on the front end,” he says, they can try to beat you on the back end.”

The rule’s future depends on the com­po­si­tion of the board and who’s in the White House. A more pro-employ­er board could over­turn it.

For the time being, though, the elec­tion process is very smooth, very quick, and very effi­cient,” says George Waksmun­s­ki, a field orga­niz­er with the Unit­ed Elec­tri­cal Workers.

Ren­zen­berg­er dri­vers in Mans­field, Ohio — who pro­vide short- and long-dis­tance trans­porta­tion for rail­road work­ers — vot­ed 7 – 1 on May 15 to join the UE.

This elec­tion was faster than I’ve ever seen,” Waksmun­s­ki said, about 30 days from the day we peti­tioned to the day we voted.”

Luck, of the CWA, is telling oth­er orga­niz­ers: when you file, make sure you’re prepared.

You real­ly don’t eat or sleep or do any­thing else for three weeks,” she said. You real­ly have to have all your ducks in a row. But it gives work­ers the best shot in the world to have a union.”

Dan DiMag­gio is an assis­tant edi­tor at Labor Notes
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