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Memo to the NLRB, Follow your Rules, Let the Voters Vote!

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The National Labor Relations Board (NLRB) exists for the purpose of protecting the rights of employees regarding the subject of unionization at their workplaces.

The most fundamental and protected way to ensure that workers maintain their right to choose is through an NLRB Secret Ballot Election.

Sounds Fair enough and it has generally worked fine throughout my 33 years as a management representative helping companies stay within the boundaries of  The National Labor Relations Act (a.k.a. The Act) while helping employees to understand the full scope of the decision before them.

However, recently I’ve seen a trend that had not been as persistent in the past.

Let me point to a 3 cases where the fundamental principle of ‘The Act’ has been violated to the detriment of the rights of workers.

Case number one

A small grocery store in a suburb of Chicago employs 25 workers who have been covered by a labor agreement (Contract) negotiated by the UFCW union.

After years of “union representation” the workers had had enough and decided to request that the NLRB conduct an election to determine if they still wanted to keep the union and continue paying union dues.

The workers collected enough signatures among them and submitted these along with me necessary, and complicated, paperwork to file a Decertification Petition (RD) with The NLRB.

Their primary motivation was their own personal long-term experience with the union’s representation. Over the years they had seen no progress and in fact had lost their health insurance coverage without the union putting up much of a fight. The most recent Contract had expired thereby creating a classic opportunity for these workers to simply vote YES or NO on whether they chose to keep the union.

Not surprisingly, the union would have nothing of it.

The UFCW filed charges to prevent these voters from having an opportunity to make that choice. Using an NLRB ruling, the company was told that the employees would not have a chance to vote until six months had passed thus giving the union the opportunity to try to negotiate a new contract with the new owners.

The result was that their petition for an election was denied by the NLRB.

Never mind that those employees were clearly indicating that they did not want the union at all! But the matter would have been decided by the result of the election that they legally sought

Next the employees sought to pursue another lawful way to protect their interests by filing a second petition to allow them to stop paying union dues, this time asking for a Vote on union De-Authorization (UD).

This is a perfectly legal procedure embedded in ‘The Act’ and supposedly available to employees.

Yet again, the NLRB worked against employees by concluding that in the absence of a Contract, employees would have to live under the conditions of the previous one which translated into the reality that these workers, who did not want the union in the first place would have to continue to live with it and pay union dues!

Case number two

Workers at a Non Union plant in the suburbs of Chicago had taken the required steps with the help of the UE union to file a petition for a vote on Certification (RC).

An election date was set, both parties (Union and Company) had conducted their “campaigns” as allowed by The Act and the day of the election was drawing near.

On The Plant floor, the tide was clearly shifting and employees reported that their decision would be to vote NO and keep their workplace union free. But, this would be decided by the Secret Ballot election to be conducted by the NLRB.

Less than 48 hours before the election the union filed Unfair Labor Practice charges (ULP’s) demanding that the NLRB “Block” the election.

The NLRB issued the “Blocking” order once again preventing employees from exercising their legal right to Vote on whether they wanted the union or no.t

The union’s accusations and reason for doing this were beyond any reality or logic. Their claims that managers were handing out hundreds of dollars in exchange for votes against the union were 100% fabricated. The claim that a vocal union supporter who had publicly threatened his supervisor and coworkers with physical altercations turned into a formal accusation that he was fired only because of his stand on the union. The other charges were equally as false.

It was not surprising that the union would file the charges in a last minute desperate attempt to avoid an embarrassing loss. But once again, the NLRB used these baseless Union charges to prevent employees/voters from voting.

This case is now approaching four months of time consuming, expensive and divisive litigation with no immediate end in sight.

Before going to Trial, ( more delays and costs) a proposed settlement “Agreement” forwarded by the NLRB to the employer includes the outrageous proposition that the company bring back the aggressive employee and Accept the Union without a Vote as the bargaining agent for All of the employees in spite of the fact that they clearly did not want them!

This was later “Modified” to propose that the election go forward BUT that the company would remain NEUTRAL while the Union, however, would be allowed to campaign to the voters ON COMPANY TIME!

Case number three

AFSCME, The American Federation of State County and Municipal Employees Union had won a closely contested election at a State Subsidized Mental Healthcare Facility.

In accordance with The Act, the company and the union engaged in several negotiations sessions to attempt to achieve a mutually agreeable Contract.

14 months later the employees initiated the legal process of collecting employee signatures in an effort to have an NLRB election (RD) to decide if the majority of the current employees wished to continue with union representation or not.

It is perfectly legal for employees to call for such an election after a union has been certified for at least 12 months and there is no Contract.

But here again, the union alleged some baseless charges which led to the postponement of an election by the NLRB that would have given the employees the right to decide whether they wanted to continue to rely on the union to reach a contract with the company or not.

The NLRB, following its typical pattern of simply accepting whatever Union charges are filed, once again did not allow employees to exercise their right to vote.

These three cases point to the complexity of current Labor Law, but more so, they show a clear Abuse of these laws and the complicity of the NLRB to simply Prevent employees to decide by being allowed to VOTE!

Ironically this is the same NLRB that implemented what is known in the industry as “Quickie Elections” which of course are clearly aimed at assisting union organizing drives while taking away the rights of employees to adequately be informed and hear both sides of the issue.

The general premise of the NLRB was that elections should take place as soon as possible. The so-called “Expedited Election” rule seems to only apply however, to assisting unions in getting in to a workplace. As evidenced by the 3 cases cited above, this same urgency clearly does not apply when workers want to prevent a union from coming in to their workplace or from Unions losing their representation status and being Voted (kicked) out!

See my testimony before the NLRB against this Anti-Worker legislation by following this link : https://www.youtube.com/watch?v=IdNXjHeMt7M

Conclusions

We can only hope that changes will come as the new administration moves towards ensuring that the makeup of the five person NLRB will closely analyze and overturn unfair rules that simply hurt workers and go against The NLRB’s own established purpose.

But these changes could be slow in materializing while Unions are still in active Campaign mode!

Employers can’t afford to wait.

Knowing that it is still a biased and extremely Un-level playing field and that there still is a hostile NLRB with years of a Pro-Union record, Employers need to take action to protect their rights and those of their workers.

Working with a Team that includes an experienced Labor Attorney and a professional Labor Relations Consulting firm, employers need to properly and lawfully educate the workforce and identify the issues that  unions will exploit in their efforts to gain power or hold onto it.

Do you have a Unionization concern or Question?

For advice or consultation, contact our office to discuss the best options for your organization.

Edgardo Villanueva

President

EMSI CONSULTING LLC

312-623-7890

www.emsiconsulting.com

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