The Group That Brought Us Janus Is Waging a New Stealth Attack On Unions

Moshe Z. Marvit December 13, 2018

(John Kershner/Shutterstock)

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.

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.

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