Some might call it Sudden Election Syndrome. Others might call it the Stealth Employee Free Choice Act. But a new proposal that effectively would bypass standard National Labor Relations Board-supervised elections could revolutionize labor relations in this country. If nothing else, unions could make out like bandits in their organizing drives and corporate campaigns. The source of this initiative: the National Labor Relations Board. On February 26, the NLRB published a notice of proposed rulemaking in the Federal Register that would allow a union and an employer to file a joint petition for a board-supervised election to be held on an agreed-upon date within 28 days. This document, to be called an “RJ petition,” may have a good many dissenting workers crying foul.
Last year, unions swallowed a bitter pill when Senate Republicans successfully blocked passage of the Employee Free Choice Act (EFCA), a bill already passed by the House in March that would have forced employers to recognize as binding card checks that win a simple majority. In other words, if a union manages to convince at least 50 percent of the employees who are part of a potential collective bargaining unit to sign a card indicating an intention to join, the result would preclude any possibility of holding a secret-ballot election, for decades the template for American union democracy. The RJ Petition would appear to be the NLRB’s way of breaking the EFCA impasse. How workable the plan would be in practice is another story.
Under the proposed rule, no show of interest in joining a union would be required. A union conceivably could set up an NLRB-monitored election without the support of a single worker. That’s quite a comedown from the current minimum threshold of 30 percent. The petition would be filed jointly by the employer and the union. A board-supervised election then would be held no more than 28 days later. Within three days of docketing, the NLRB regional director would notify the parties of its decision to approve the election petition. The board then would send the employer a notice to be posted in the workplace at least three working days in advance of the election. All election and post-election issues would be resolved by the regional director; there would be no chance to appeal a ruling to board headquarters in Washington. Any adjudication would occur after union certification. Finally, the proposal would limit to seven days the period during which employees could file an unfair labor practice charge. On the whole, this looks like a winner of a deal – for organized labor.
The salient reality of the proposal is that it would not give time to either employees or employers opposing unionization to mount any campaign. Moreover, despite the seeming intent by the NLRB of speeding up the election process, there’s a built-in Catch-22 that may prevent elections from happening altogether. Face it: A union isn’t likely to file a joint petition unless it’s fairly confident it will win. But that very act of confidence will make a skeptical employer downright reluctant. This paradox resembles that chimera known as the “friendly divorce.” When one spouse thinks he or she has the upper hand, the other spouse will sense as much, and decline any offer of a joint settlement. Even assuming an employer is eager to hold an election – it does happen occasionally – the union might prefer a more confrontational route. Think only of the United Food and Commercial Workers’ ongoing corporate campaign against Smithfield Foods. Indeed, unwittingly or not, the RJ Petition might serve as a spur to corporate campaigns. To sound off one way or another, e-mail NLRB Executive Secretary Lester A. Heltzer at Lester.Heltzer@nlrb.gov or call (202) 273-1067. The deadline for comments is Thursday, March 27. (Daily Labor Report, 2/26/08; Kreitzman Mortensen & Borden, 2/26/08; other sources).