by Phil Wilson
The NLRB Should Stop Protecting Racial Hatred
The NLRB has a chance to take a stand against racism and racial hatred. I hope they make the right choice. I don’t think they will. But we will get to that in a minute. First, a quick update on ambush elections. We now have a little over two months under our belt and the impact of the new rule is starting to emerge. There was a fair amount of concern last month about the big increase in NLRB petitions. It looks like after two months the number of petitions overall is starting to look more like it has over the last several years: 
There has been about a 10% increase in RC petitions, but that is a big drop from what initially looked like a 30-40% increase just a month ago. I think this is mostly explained by two factors. Some petitions were held back waiting for the rule going into effect. Also there were a couple of unusual situations in the security and construction industry that accounted for around 40 petitions in May. When you add in the decertification petitions (RD and RM) the total petition increase is very modest 4%. I’ve said for a while – and as of now these statistics bear this out – that I don’t think the ambush rule is going to result in a lot more petitions. Unions are selling something that people aren’t buying. The fact that you get to make your purchase twice as fast as before doesn’t change the fact that nobody is in your store. What has changed is the unit sizes. It looks like unions continue to focus primarily on very small (under 10 employee) bargaining units. If you look at this year compared to the last 4 years, petitions are basically flat in all unit sizes other than these very small units, where they’ve surged by 36%. Here’s what that looks like: 
We’ve noticed anecdotally that a number of petitions are getting filed in units where unions already have a presence. They are just picking up a few more members where they are already in place. That’s not a bad strategy, but it’s not a strategy for sustained long term growth either. Election periods have shrunk around the country. In at least one Region (Region 28 in Phoenix) there are reports that the average period is 18 days from petition to election. Our experience is better, with the average election still happening in around 24 days. But whatever numbers you look at it is clear that election periods have been slashed by at least a third of where they were before the rule went into effect. Are unions winning more of these ambush elections? No. In election campaigns were we have had consultants on the ground (we’ve had more than a dozen go to election since the rule went into effect) we still haven’t lost an ambush election. If you look at election results since May 1st (14 days or so after the rule went into effect) the union win rate remains exactly the same as it was in the same period a year prior. Again these are very early returns, but in the early going unions aren’t winning more ambush elections. Now on to the protection of racist speech. This month Administrative Law Judge Thomas Randazzo ruled that racist comments from a picketer shouted to workers crossing a picket line are protected concerted activity. He ordered Cooper Tire to reinstate Anthony Runion, the employee who shouted the racist comments. I’m not going to repeat those statements here, but I encourage you to read the opinion. There is no dispute about whether Runion made his comments. They were caught on video and both the Steelworkers union (who are fighting to protect their racist member – every African American voting in a Steelworkers election needs to read this opinion too) and the Company stipulated to this fact. Not only that, but an arbitrator had already heard all the evidence and decided that Cooper Tire had the right – under its company policies and its labor contract – to terminate Runion over his racist speech. Randazzo overruled the arbitrator’s decision. That alone is troubling because it encourages parties to ignore arbitrator rulings and continue taking bites at the apple until they get their way. It won’t be long before the NLRB just eliminates arbitration as a viable dispute resolution process. Randazzo found that the speech was protected because it wasn’t threatening bodily harm. We’ve covered the Cooper Tire lockout before. This case dealt with picket line misconduct. The bottom line on any case like that is that picketers get pretty wide latitude to say what they want on the picket line. Picket lines are highly emotional on both sides. Just about any non-violent speech is protected. It’s not a place for the faint of heart. The question is how far should the government go to protect that speech? And if every utterance other than a direct threat of bodily harm is protected concerted activity, what rights (if any) do companies have to protect their employees from hate speech? The NLRB must reverse ALJ Randazzo and take a stand against racist speech on the picket line or anywhere else. There was no allegation that this termination was a pretext to get rid of a union supporter. Lots of other horrible things were said and tolerated. This was simply about whether a company has a right to protect its employees from hostile racist speech. They are morally and legally required to do so – but this decision makes it illegal to do the right thing. It is one thing to put your thumb on the scale of organized labor. But not everything a union wants should be protected. This decision is an abomination. Racist speech has consequences and a company that wants to take a stand against such speech should have the right to do so. This decision came out before Dylann Roof went on his rampage in South Carolina, killing 9 innocent people while they worshiped in Church. I’m sure 21-year old Roof has no idea that the NLRB even exists, but I am sure he would applaud Randazzo’s decision. I hope the NLRB has the decency and the guts to correct Randazzo’s horrible mistake.
