December 28, 2011
By Bendix Anderson
It happens all the time — after months of planning, organizing and meetings the workers at a non-union shop present their employer with a petition: They want to join a union.
But employers can resort to extreme or even illegal measures to delay an organizing drive. “They will fire an employee just so you will file a complaint,” said Julian deJesus, an organizer for District Council 1707. That’s illegal — but once a union files a complaint, the case could stretch out for more than a year. “Appeals keep piling up,” said deJesus.
New changes from the National Labor Relations Board (NLRB), which hear labor complaints, may cut down on these delays.
Once workers sign a public petition to join a union, every day that passes is another day that employers can use to pressure employees to change their votes. “The employer has eight hours a day, five days a week to work on the bargaining units,” said Larry Cary, a partner with law firm of Cary Kane, LLP. As weeks pass, workers who support unionization may quit or be fired. “Easily five percent of the workforce could turn over,” said Cary.
The NLRB ruling allows a hearing officer to exclude evidence and briefs that are irrelevant to the case, in the judgment of the officer. Employers often seek to introduce issues and depose witnesses that delay the process of unionizing a shop.
The NLRB has yet to rule on an even more significant proposal that would allow unionization votes to go forward subject to voting challenges. This would allow important questions such as which employs count as supervisors to be deferred till after the election.
However, the NLRB has other problems. The five-member board has been operating with just three members, because the U.S. Senate has refused to confirm President Obama’s nominees to the board. To be exact, Senate Republicans have filibustered, so that the matter has not come up for a vote.
However, the term of the third member of the NLRB Board expired at the end of 2011. Now the Board has just two member and three empty chairs — that’s not enough to legally make decisions.