Unions Win More Freedom to Organize in Workplace

[I AM NOT THAT GUY 5,715]

New federal rules unveiled Wednesday will make it tougher for employers to stall union-organizing drives inside the workplace, one of the biggest changes in decades to how workers join unions.

The changes, which take effect April 30, delay employers' ability to complete a legal challenge that can drag out the process of voting to form a union at a private-sector workplace. Companies often contend that certain workers aren't eligible to vote on union formation because they're actually management, or that certain part-time workers should be excluded from the vote. For some employers, these challenges keep unions from taking hold for months or years.

But under the new rules, employers will have to defer appeals of their legal challenges until after workers hold the vote, when many employer challenges become moot if a union loses the election.

The change came through a vote announced Wednesday by the National Labor Relations Board, with its two Democrats voting for it and its lone Republican symbolically rejecting it by choosing not to vote.

Democrats on the board said the rule aims to eliminate what they call "unnecessary litigation" that occurs during elections. Deferring appeals to the board until after voting occurs can also save federal regulators' and employers' time and money that now get wasted handling pre-election challenges that later become irrelevant, the board said.

The change also applies to legal challenges initiated by unions, which sometimes try to hinder workers from voting to get rid of a union in the workplace, NLRB lawyers said.

Although union participation has fallen steadily in recent years, the changes could speed up union-organizing efforts at companies in the health-care, communications, transportation and service industries. The changes also could prompt more workers and labor groups to hold union-organizing elections, with the hope of getting a better shot at a vote without delay. Among the biggest unionization targets in recent years are Wal-Mart Stores Inc. and Target Corp., though efforts to unionize both have flopped.

The change drew immediate backlash from many employers. They said it leaves inadequate time for them to respond to unionization campaigns and limits their rights to legally challenge elections before employee voting occurs.

The U.S. Chamber of Commerce, which counts three million members, said it filed a lawsuit Tuesday night to challenge what it called the "ambush election rule." The suit, filed in the U.S. District Court for the District of Columbia, contends the rule deprives employers of a fair opportunity to explain to employees the costs of unionizing.

An NLRB spokeswoman declined to comment on the chamber's lawsuit, but the board said in the rule that the process for the change was "lawful and appropriate."

Labor officials—who have argued that scheduling union-organizing votes often takes too long—welcomed the change but said more needs to be done to protect workers' rights. "Due to frivolous litigation and delaying tactics, too many workers have had to wait months, or even years, to vote on whether to form a union," said Service Employees International Union President Mary Kay Henry.

Unionization rates in the private sector have been declining for the past few decades and dropped to just 6.9% of the U.S. work force in 2010. The NLRB held 1,690 union-organizing elections in 2009, the latest year for which data are available, down 38% from 2,715 elections four years earlier.

"There's not a hell of a lot of union organizing happening anymore," said Gary Chaison, a professor at Clark University in Worcester, Mass., who expects to see a temporary spurt of organizing campaigns to test the rule. "Unions blame the law and say it's too difficult and expensive to do it."

Board Chairman Mark Pearce said the changes will only affect a small portion of elections it supervises each year. That is because legal challenges are launched in only about 10% of elections. The votes in these elections have been held on average 101 days after the election petition was filed with a regional office. "This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation," said Mr. Pearce.

Employer representatives disagree with the assertion that only 10% of elections will be affected, saying the agency will try to find ways to speed the other 90% of elections as well. Agency lawyers agree the bulk of elections could become faster, but for a different reason: they say the rule will discourage employers from threatening pre-voting litigation for frivolous reasons or as a way to get workers to agree to employer preferences, such as holding an election at a later date.

The change will compress the time between when workers file a petition with the NLRB to hold an election and when the actual voting occurs. That period will shrink to 25 days or fewer, some legal experts estimate, nearly two weeks less than the current median of 38 days. Employer groups and lawyers say the current median is barely enough time for employers to tell employees why a union isn't needed, while unions say the extra time allows employers to intimidate workers into voting against unionization.

The board's initial proposal called for more sweeping changes, including requiring employers to provide the union with email addresses of employees who would be eligible to vote. But the board, which is in danger of losing on Jan. 1 the quorum it needs to approve labor regulatory changes, pushed out a scaled-back rule last month as it raced to finalize the changes before year end.

A 2002 election shows how legal wrangling can delay a final outcome on union-organizing votes. In May of that year, the International Association of Machinists filed a petition to represent a group of 473 employees at a plant operated by Bombardier Mass Transit Corp., which makes subway trains and rail cars. The union excluded all professional, clerical and supervisory staff. An NLRB official decided 17 other workers should be included in the vote, and the employer asked the board to add 75 more workers.

The election went forward in August 2002, but the ballots were impounded until the board reached its decision two years later. The board decided the 17 workers should be added, but not the 75 workers.

However, when the ballots were then opened and counted, they revealed the union had lost the election anyway, making the entire challenge moot.

http://online.wsj.com/article/SB10001424052970204552304577112400503362334.html

Edited December 26, 2011 by ☼