The National Right to Work Legal Defense Foundation recently submitted comments to the National Labor Relations Board (NLRB), demanding it issue a final rule to rescind three arbitrary policies that union officials often manipulate to trap workers in union ranks. To add insult to injury, the majority of workers in these cases usually want to oust the union from the workplace.
The three policies were not created through traditional legislative means but were established by previous Board precedents. Foundation Vice President and Legal Director Raymond LaJeunesse submitted the comments, which support all three changes the NLRB is currently considering in rulemaking. However, the comments specifically advocate for an important modification to the Board’s proposed change in how it handles so-called “blocking charges.”
Under the NLRB’s current “blocking charge” policy, union bosses file unfair labor practice (ULP) charges against an employer to prevent employee votes to decertify unions, even if the allegations against the employer are unrelated to the decertification effort. The agency plans to get rid of that policy and replace it with one that allows decertification elections to go forward while such charges are pending. Under these circumstances, however, the results of the vote must be withheld until those charges are resolved.
The Foundation’s comments detail how the Board’s proposed “vote and impound” procedure does not fully resolve the blocking charge problem. It specifically notes that even after workers vote, union officials could still continue to have them stuck in unwanted representation by prolonging the ULP process to keep monopoly bargaining powers for months or years before the vote can be officially announced. The comments call attention to how this will unfairly “frustrate and confuse employees who may have to wait years to see the election’s results.” Instead, the Foundation encourages the Board to first release vote tallies to “decrease litigation and give parties greater information on whether to settle” unfair labor practice charge allegations that will more than likely not impact the election’s outcome.
Foundation staff attorneys have provided legal assistance to countless workers facing “blocking charges”. The most recent being a group of Alaskan bus drivers who broke free from an unpopular Teamsters union in December 2019 following three years of attempts to remove it.
One employee in that situation told the NLRB that Teamsters officials’ continued blocking of an election was “the most unfair and anti-democratic event” with which he had ever experienced.
The Foundation’s comments back the NLRB’s move to reestablish a process which enables employees and rival unions to file for secret-ballot elections after a union has set up in a workplace through controversial “card check” drives that circumvent the NLRB-supervised election process. That key modification to the so-called “voluntary recognition bar” policy would reinstate a system that Foundation staff attorneys secured for workers in the 2007 Dana Corp NLRB decision. Despite thousands of workers using the process to secure secret ballot votes after undergoing unionization through card checks, the Obama NLRB overturned the Dana decision in 2010.
The Foundation’s comments also support the agency’s proposed rule to put the clamps on schemes in the construction industry where employers and union bosses are given the power to unilaterally establish a union in a workplace without first demonstrating evidence of majority union support among the workers. Foundation staff attorneys represented a victim of such a forced unionization scheme in a case (Colorado Fire Sprinkler, Inc.) that concluded with a DC Circuit Court of Appeals panel unanimously ruling for the worker, who had been unionized despite no evidence pointing to majority employee support for the union.
For some time, the Foundation has called for the NLRB to lift all barriers to employee decertification of unions which the National Labor Relations Act, the federal law that the agency is tasked with enforcing, does not mandate or even mention. On top of the “blocking charge” policy and “voluntary recognition bar” that are subjects of the current rulemaking, the Foundation also stands in opposition to other arbitrary and non-statutory barriers to workers exercising their right to fair secret ballot elections that aim to decertify unions.
“For too long the statutory right of employees under the National Labor Relations Act to vote out a union they oppose has been trampled by arbitrary NLRB policies that allow union bosses to maintain power despite the overwhelming opposition of rank-and-file workers,” said National Right to Work Foundation President Mark Mix. “Delays in the rulemaking process this Board has used to address these coercive policies means workers across the country continue to be trapped in unions they oppose every day, which is why the NLRB should now swiftly finalize these rules as the Foundation’s comments advocate.”