Last week, a case was filed in federal court in Pennsylvania that may mark another major front in the National Right to Work Legal Defense Foundation’s (NRTW) war on labor. Though the NRTW has been attacking labor since its official founding in 1955, it has only recently come into its moment, having enormous success with the courts. Since 2012, the NRTW has brought four cases to the U.S. Supreme Court, including the major Janus case, which overturned a 41-year-old precedent by pushing all public-sector workers into “right to work.” This legal framework permits workers to not pay any dues to the unions that represent them, and “right to work” laws have become one of the Right’s favorite weapons to defund and sow discord among labor. In its newest effort, the NRTW is attempting to overturn a body of labor law, in place for decades, that encourages employers to bargain in good faith after settling an unfair labor practice charge.
Under normal circumstances, any time 30 percent of unionized workers file a decertification petition, the National Labor Relations Board (NLRB) will hold a vote to determine if the union has lost a majority of its support. However, there are certain circumstances where the NLRB will not hold a decertification election because it interferes with the employer’s legal obligations. One such instance, which the NRTW now attacks, was developed in a 1951 NLRB case called Poole Foundry, which holds that the NLRB won’t hold a union decertification election if the decertification petition is filed after the union and employer settle an unfair labor practice complaint, if the settlement contains a provision that the employer bargain with the union in good faith.
In 1951, the NLRB said the rule exists to account for the fact that a union’s support may decline after the employer has engaged in unfair labor practices. Furthermore, if decertification elections were permitted during the required bargaining period, the employer would have an incentive to not bargain in good faith:
It is well settled that after the Board finds that an employer has failed in his statutory duty to bargain with a union, and orders the employer to bargain, such an order must be carried out for a reasonable time thereafter without regard to whether or not there are fluctuations in the majority status of the union during that period. Such a rule has been considered necessary to give the order to bargain its fullest effect, i.e., to give the parties to the controversy a reasonable time in which to conclude a contract. Similarly, a settlement agreement containing a bargaining provision, if it is to achieve its purpose, must be treated as giving the parties thereto a reasonable time in which to conclude a contract.
In the case that the NRTW is now suing over, Krise Transportation took over operations of STA of Pennsylvania and then refused to reinstate many of the union employees. The NLRB issued an unfair labor practice complaint against Krise Transportation, alleging that when it took over the company, it became a successor employer and violated the law when it tried to avoid its duty to bargain with the union by not reinstating those employees. The NLRB and Krise settled the complaint, and Krise agreed to reinstate the union employees and to bargain in good faith with the union for 12 months.
However, instead of complying with the terms of its settlement agreement, Krise Transportation did not reinstate the employees and only met once to bargain. Less than two months after the settlement agreement was approved, a decertification petition was filed with the NLRB by a group of employees that did not include those who were supposed to be reinstated. In denying the decertification election, the regional director of the Pittsburgh Region of the NLRB recognized the damage done to workers and unions when a successor employer engages in such conduct, writing:
When a successor employer engages in discriminatory hiring in order to evade a bargaining obligation with the predecessor employer’s union, it “inflicts a particularly potent wound on the union and its members.” As the Supreme Court has recognized, a successor employer’s refusal to bargain with the union that represented the predecessor’s employees “disrupts the employees’ morale, deters their organizational activities, and discourages their membership in unions.”
The NRTW appealed the decision to the full Board, and the Board upheld the Regional Director’s order. But, the two Republican members of the Board dropped an important footnote that stated that they followed the 1951 precedent “for institutional reasons,” but “they would consider revisiting the Board’s settlement bar policy in a future appropriate proceeding.”
Instead of waiting to bring a future case in front of the NLRB, the NRTW has instead taken a multi-pronged approach to trying to change these important rules. First, it filed a case in federal district court in Erie, Pennsylvania, challenging this decades-old rule on constitutional and statutory grounds. The NRTW is unlikely to win in district court, but it has shown that it is adept in losing at the lower levels but having an agreeable audience at the Supreme Court.
A few days after filing the lawsuit, on December 3, the NRTW sent a 17-page letter to the NLRB requesting that the Board use its rulemaking authority to get rid of “all existing non-statutory election ‘bars’ and ‘blocks.’” Using the technical legalese of labor law, the NRTW is essentially requesting that the NLRB make it easier for workers to vote the union out when they are dissatisfied with the union. Under federal labor law, workers have the right to vote a union in or out. But the rules proposed by the NRTW would create a scenario in which employers can illegally fire workers who support the union so that the non-supporters can vote the union out. Employers could also illegally refuse to bargain with the union — which was voted in specifically to bargain with the employer and secure a contract — and then use that worker dissatisfaction with lack of progress on a contract to get the workers to kick the union out.
Though these rules are technical and may constitute “inside baseball” for many outside of union negotiating committees and management attorneys, changing them as requested by the NRTW could lead to yet another structural impediment to workers having a voice at the workplace. Settlements of unfair labor practice charges are quite common. In 2009, the last year that the NLRB released an annual report, 7,795 of the 22,943 charges filed at the NLRB settled. While, not all of these settlements included provisions to bargain, many likely did, and the Poole Foundry rule helped enforce that provision. Without the rule, employers would have yet one more incentive to commit unfair labor practices, to not bargain in good faith with the union and to gerrymander their workforce — in an attempt to push unions out of the workplace.
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Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.