Proposal Revamps Union Elections

July 18, 2011

The Wall Street Journal

MELANIE TROTTMAN

Business groups and labor unions will face off at a hearing Monday over a government proposal to streamline the process of union-organizing elections. The central point of dispute is whether workers who vote not to organize do so because they don't see the benefit or because of employer intimidation.

The National Labor Relations Board, in the most significant change in the union-election rules in decades, has proposed measures that could cut to as few as 10 days the gap between when a union files to hold an organizing election, and when ballots are cast. The current median is 38 days.

Business groups say the proposal would unfairly limit management's right to make a case against unionization. Unions say it would give employers adequate time to make their arguments, and less time to improperly intimidate employees into saying no to representation.

Starting Monday, more than 60 people from business, labor, academic and nonprofit groups will testify before the NLRB's four-member board, which is dominated by Obama administration appointees.

"From the moment employees are hired, the employer basically has unfettered access to communicate its perspective on a wide range of issues, including unionization," said AFL-CIO organizing director Elizabeth Bunn, who is to testify Tuesday.

But John Raudabaugh, a labor lawyer at Nixon Peabody who will testify for the National Federation of Independent Businesses said many employers, particularly small businesses, "don't have the funds, time or knowledge of relevant labor laws to respond to covert organizing or the speedy elections" being proposed.

A challenge for both business and unions is the relative lack of data linking the outcome of organizing votes to alleged labor law violations.

The NLRB tracks unfair labor practice charges but doesn't monitor whether they stem from organizing elections.

To fill that data gap, union witnesses are expected to rely on findings of a study from researchers at Cornell and Columbia universities that concluded employers commit unfair labor practices in 40% of elections and that 47% of the serious allegations are reported before a petition for an election is filed. Unions helped to fund the study.

"Each week workers don't have an election, they are hit with these tactics and are more likely to give up," said Kate Bronfenbrenner, the director of Cornell's labor education research who led the study.

Ms. Bronfenbrenner, who previously worked for many years as a union organizer, said she and her research partner started with a random sampling of 1,000 NLRB-conducted elections over five years.

Then they used an online NLRB database to gather a list unfair labor practice charges filed during that period.

Next they surveyed union organizers about the timing and nature of charges filed, and they filed a Freedom of Information Act request to the NLRB to determine which charges were linked to the elections in their sample.

An NLRB spokeswoman said the agency provided FOIA information but didn't participate in the analysis and doesn't take a position on the findings.

Business groups are attacking Ms. Bronfenbrenner's findings by questioning the researchers' neutrality and methodology, and say the fact that unions already win 64% of NLRB-run elections is proof that labor isn't suffering under current rules.

"If she'd asked each side, it would have been a more complete picture," said Michael Eastman, the U.S. Chamber of Commerce's executive director of labor law policy.

Of the 22,943 unfair labor practice charges filed in fiscal year 2009, only 36.6% were found to have merit, the NLRB says.

That includes 6.5% of charges in which the NLRB issued a complaint, and another 30% that involved pre-complaint settlements, dismissals or withdrawals where the charging party got some sort of remedy.

Unions file charges at more than 10 times the rate employers do.

The 2009 charges included 883 filed by employers and 12,203 filed by unions, which say employers do everything from pressuring workers to disclose if they support the union to threatening to close plants if the union prevails.

The partisan debate over the NLRB election proposal and other recent actions by the agency—including a labor-law violation complaint filed against aircraft giant Boeing Co.—has drawn fresh scrutiny of the role of unions in the economy, including whether collective bargaining helps or hurts job creation.

At a House Education and the Workforce Committee hearing last Thursday, Chairman John Kline (R., Minn.) said the NLRB proposal would unnecessarily enact a sweeping change "at a time when many employers are struggling to keep their businesses open, and nearly 14 million individuals are searching for work."

Rep. George Miller (D., Calif.), the committee's senior Democrat, aligned with labor, saying current rules "provide multiple opportunities for bad actors to purposefully delay or stop an election" that should be allowed.

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