Portside Date: December 28, 2014

Author: John A. Logan

Date of source: December 16, 2014

The Hill

Last Friday, the National Labor Relations Board (NLRB) issued long-awaited new rules to modernize and streamline union certification elections and to eliminate the worst cases of pre-election delay. The board is mandated to protect the rights of employees to form unions and bargain collectively, but numerous academic studies have demonstrated that the current NLRB election process fails to protect workers' free choice.

One major problem under the current system is that unscrupulous employers use delaying tactics to undermine employee choice. Thus, the NLRB's new rules seek to reduce unnecessary litigation and delay in the union certification process; to ensure that workers, employers and unions receive timely information; and to provide for the electronic filing of election petitions and other documents. The rules were published in the Federal Register on Dec. 15 and will take effect on April 14, 2015.

Predictably, anti-union groups and their Republican allies have claimed that the rules will deprive employers of sufficient time to campaign against the unions. One prominent anti-union law firm complained that the rules would "minimize" an employer's time to "run an anti-union campaign," while the International Franchise Association apparently believes they will enable unions to "silence" employers like McDonald's. The National Retail Federation, which represents Wal-Mart and other billion-dollar retailers, described the NLRB's modest reforms as "devastating," and Republicans, who say that the current broken system has "worked well for decades," have proposed legislation that would mandate even longer pre-election delay (H.R. 4320). In short, representatives of big business and right-wing lobbying organizations oppose any attempt to promote basic fairness in the union certification process.

These groups, which have fought every effort to protect workers' right to choose a union, are once again crying wolf. The election rules will not prevent employers from communicating their anti-union message to workers and will not radically alter the balance of power in the union certification process. External "union avoidance consultants" and internal anti-union experts will enable employers to dominate slightly shorter union certification elections, just as they do under the current rules. With the assistance of these consultants, employers will respond to union organizing drives quickly and effectively, even under the new streamlined election rules. Ultimately, the rules are unlikely to loosen the stranglehold that big business has over the union certification process.

Employer organizations have argued that the new rules are unfair and unnecessary. Their arguments are unconvincing because the current NLRB hearing process is extremely vulnerable to delay; because delayed NLRB elections expose workers to even more illegal management practices; because many employers begin anti-union campaigning long before an official NLRB petition is filed; and because without a fair election process, workers attempting to form a union will give up, which is exactly what big business wants to happen.

Conservative activists have adopted the ludicrous phrase "ambush elections" to describe the new rules, but streamlined elections will not provide pro-union workers with a "tremendous advantage," and big business knows it. Anti-union employers will continue to dominate certification elections because a sophisticated consultant industry can respond quickly to organizing campaigns and offer services to employers in any timeframe conceivable under the new rules. Employers will not be "ambushed" by streamlined elections because consultants regularly monitor filings of petitions and then provide union avoidance campaigns that are similar and which can be easily replicated. Consultants train employers to campaign continuously against unions and to identify the first signs of organizing long before an election petition is filed. Employers do not to wait until an organizing drive starts before communicating to workers their views about unions; Wal-Mart and many others do it from the moment that employees are first hired. Finally, large corporations hire internal union avoidance experts who effectively conduct year-round anti-union campaigns.

In short, the election rules will not prevent employers from communicating their message or quickly executing union avoidance campaigns. The consultant who ran a successful nine-day campaign against the United Auto Workers at Volkswagen in Tennessee explained that "powerful" anti-union communication is the key to remaining union free "regardless of the timeframe."

Shortly after the National Labor Relations Act was signed into law, NLRB officials worried that employer delay would undermine the integrity of the election process. One expressed concern that certification elections may provide employers "a means of sabotaging the bargaining process through dilatory tactics." Regrettably, those concerns have proven justified. The NLRB's existing procedures have given unscrupulous employers too much power over the timing of elections, and have allowed the process to be plagued with unfair labor practices by corporations determined to stop workers from choosing a union.

While the NLRB's new rules will address the most egregious delaying practices, they will not prevent employers from communicating their anti-union message to workers and will likely make scant difference to the balance of power in certification campaigns. Don't be fooled by the crocodile tears of billion-dollar corporations or the phony outrage of right-wing propagandists: Big business still holds all the cards in the certification process, and it will continue to control the decision on whether most workplaces get a union.