by Phil Wilson

The NLRB Gets Its SexyBack.

Do you remember where you were on September 14, 2006? Yeah, me neither.

If you were listening to the radio (or possibly iTunes… Spotify was just created a few months earlier) you were probably jamming to Justin Timberlake’s SexyBack.

The big labor story that day was that Ford Motor Company and the United Automobile Workers union agreed on a controversial buyout program that persuaded more than 75,000 Ford workers to leave their jobs.

You wouldn’t have read any of these stories on Twitter, since it was also created only a few months earlier.

But for readers of INK, perhaps the most notable thing that happened on September 14, 2006 was that two NLRB petitions, filed in long-term care facilities in New Jersey, were blocked by unfair labor practice charges. Those two elections – Pine Brook Care Center and Pavillion @ Forrestal – remain blocked today. That is 4,726 days ago – nearly 13 years.

Look, I understand that justice isn’t exactly swift in some Board regions. But what unfair labor practice can’t be resolved in 13 years? The employees in both of these organizations were deprived of their opportunity to vote on union representation this entire time. Their elections were blocked. And since turnover is high in long term care it is entirely possible none of these employees even work in these facilities anymore. They were disenfranchised forever.

Unions will claim that the only reason they block elections is because an employer’s alleged misconduct has so tainted the atmosphere that a free and fair election is impossible. My personal experience is that unions more commonly block elections where they think they are going to lose. They want to avoid the embarrassment of a lopsided public loss by claiming the employer did something wrong. But there are certainly situations where employers do commit unfair labor practices that should be resolved in favor of the union.

But these two cases illustrate the absurdity of the current blocking charge policy (not to mention the inefficiency of some Board regions). Thankfully that blocking charge policy is about to get much more rational.

On August 12 the NLRB published a notice of proposed rulemaking that ends the ability of unions to disenfranchise voters by simply filing an 11th hour claim of employer wrongdoing. The proposal is simple. Instead of stopping elections at the last minute, the Board instead will adopt a “vote-and-impound” procedure. In other words, in situations where a union claims that employer misconduct will impact the election the Board will allow employees to vote and then wait to count the ballots until after the charges are resolved.

This policy makes imminent sense. In cases where no employer unfair labor practice is found, the Board simply opens the ballots. If an unfair labor practice is found the Board will determine an appropriate remedy, typically ordering a new election.

This system gets rid of a bunch of the gamesmanship unions play at the end of an election. They know the vote is going to happen one way or the other. If they are just trying to avoid a loss, they will pull their petition. If they truly believe an unfair labor practice occurred, they still get their day in front of the agency. Only now the interests of the employees – who are supposed to be at the center of this process – are actually accommodated.

Another important component to this is resolving cases in a timely manner. There are a number of procedural reasons that a case can linger at the Board, but 13 years (and this is just two cases – the NLRB’s appendix to their rulemaking shows many more elections blocked over 1,000 days). Justice delayed is justice denied, and there are way too many of these cases just sitting on someone’s desk.

The NLRB rulemaking does not just fix the blocking charge problem. It also enfranchises employees in situations where their employer voluntarily recognizes a union. This commonly happens in the construction industry (what’s called a 9(a) recognition). But it also happens outside the construction industry, often in situations where a union engages in anti-corporate campaign activity to pressure a company into giving a union what it is afraid to attempt to gain via a government supervised secret ballot election.

The new rulemaking fixes these two situations as well. Now, in 9(a) situations the company is required to show that it has actual proof that a majority of its employees want to be represented by a union. And in non-construction situations employees are given the right to ask for an election within 45 days after their employer voluntarily recognizes a union. This helps ensure transparency and makes sure that a group of employees isn’t forced into a union that they don’t want.

These proposed changes are significant improvements to the election rules. While I hope the Board quickly comes out with other improvements to the election rules (like reversing the prior election rulemaking) these 3 changes are a great start.

Now I’m going to go crank some more Timberlake. And since it’s 13 years later, I’m doing it on Spotify.