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NLRB Issues Rule to Prevent Union Busting and Speed Up Elections

Mike Elk

Today, the National Labor Relations Board proposed a rule that would dramatically speed up and reduce frivolous challenges to union elections. Companies seeking to stop union drives often delay union elections by months in order to allow more time for extended anti-union intimidation sessions and campaigns, which often times involve firing. By speeding up the timeframe in which elections occur, the NLRB is giving more protections to union workers seeking to join a union.

Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible” said NLRB Chairwoman Wilma B. Liebman. One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election. But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.”

The NLRB rule would streamline union elections by allowing for electronic filling of election petitions. The Board is also proposing to require companies to give unions a full list of potential voters’ telephone numbers and email addresses when available — a move that would help unions campaign among workers.

The rule would also crack down on frivolous lawsuits companies often file to delay 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.

The proposed rules shifting appeals until after the elections are expected to greatly speed up the cycle which can sometimes be delayed for months until all the appeals are heard. Companies often use these delays to bring in union busters and run expensive anti-union intimidation campaigns against workers.

The rule change won quick approval from organized labor. With the proposal of these new standards, the Board is taking a modest step to remove roadblocks and reduce unnecessary and costly litigation — and that’s good news for employers as well as employees” said AFL-CIO President Richard Trumka in a statement. The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process.”

The proposed rule also received quick criticism from the Republican member of the NLRB, Brian Hayes. Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress” said Hayes. The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections.”

The rule is sure to quickly be attacked in the press by Republicans. Republicans have launched an unprecedented campaign against the NLRB in the wake of the Boeing case—threatening to defund the agency. The International Association of Machinists (IAM) filed ethics charges with the Senate Select Committee on Ethics calling for an investigation into South Carolina Republican Sen. Lindsey Graham for his role in trying to stop NLRB in the Boeing Case. IAM charged Sen. Graham with violating Senate Rule 43 by trying to stop a law enforcement trial.

Speaking over the weekend at Netroots Nation, Senator Sheldon Whitehouse (D‑RI) said that the attacks on the NLRB strike me as un-American”. Despite wide condemnation of Republicans’ interference with the independent authority of the NLRB, more attacks on the NLRB are likely to come as the rulemaking process gets underway. The public will have 75 days to comment on the rule before it becomes established law. Over the next 75 days, we can expect to see a full throttled attack on the NLRB from Republicans, corporations, and their allies in the media. 

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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