And a Preview of What Is to Come

The “quickie” election countdown hasconcluded and the rule should be considered permanent. April 14, 2015 arguably witnessed the most sweeping changes ever implemented by the National Labor Relations Board (NLRB) since labor law was transformed byits very creation.

Ricardo Torres – President & CEO

Since launching my career in labor in the 1980’s, beginning with work within the AFL-CIO’slobbying department, we strove to make changes to the election timeline. Winning Representational Elections has always been the only real path for advancing up the union’s organizational charts, gaining power and control within the labor movement. For example, Leo Gerard, who is the President of the United Steelworkers (USW),was born and raised in Ontario, Canada, where the average election cycle is only five days (other Provinces have a 10-day election cycle) from the filing of the union’s “Application”, which is equivalent to an NLRB Petition in the United States. Gerard’s win/loss record was impeccable, which is a significant reason he was awarded the USW Presidential position and has, in fact, run unopposed in reelections since 2005.

The unions’ formula for success is based on a very simple concept: Winning! The unions are salivating at the chance to turn the tables on their downward spiral of membership decline and organizing losses with the new “quickie” election process.

While I was union official, no matter the position I held, the topic that trumped all other orders of business was the level of success in the organizing department. I had many sit-downs with the country’s top union leaders, including the current AFL-CIOPresident, Richard Trumpka, to strategize instilling leadership qualities into future labor leaders. We also discussed the resources we needed to solicit the “weak bellied politicians”, as we used to call them, to increase support of Labor’s agenda and legislative actions needed to enhance organizing activities.

In the 1990’s, former AFL-CIO Organizing Director (and current UAWOrganizing Director), Richard Bensinger and I were building strategies on advanced union organizing tactics for the George Meany Labor College.At the time, we discussed two critical topics that we were determined to change. The first was the Striker Replacement Act, in which we attempted to make it illegal for employers to permanently replace workers while they were legally striking against their employer. (We sawno success with that effort.) The second was reducing the NLRBelection timeline. Our goal was to continually lobby for mirroring Canada’s pro-union timeline. (This effort ultimately did gain enough momentum to eventually result in a quasi-Canadian style election cycle.)

While I was still working on Labor’s side, I had the opportunity to work with some World Labor Federations, where the union affiliates enjoyed much more legal and political advantages than we had in the United States. Much as in the United States, Europe had lost union density, but they still averaged about 20 percentage points higher than here in the U.S. I must admit that I was surprised to discover that France’s union density was less than the U.S., but they were still able to energize their base membership. In the late 1990’s, I witnessed how unions closed down a major capital city and directed hundreds of thousands of union members to strategic locations using a simple “phone-a-buddy” system. With today’s technologies, the results can easily be much more dramatic.

I worked in Canada to coordinate a union merger between the Retail Workers Association and the USW.It was another step towards brining the Canadian system to the United States and provided a chance to evaluate strategies designed to destroy acompany’s response during a shortened election timeframe. While servingas an Organizing Director, I jumped at the chance to test these strategies, which provided us with the means to, as we put it back then,”have fun attacking our organizing targets” or testing “hit and run” organizing tactics.

We were contacted by a Canadian Local and informed that a furniture maker’s employees were unhappy about some issues, so we began a plan with key members of the internal organizing committee to pinpoint sensitive concerns. We were able to blindside the company with salts from the nearby union Local. Prior to the Application being filed, we reporting violations (which we orchestrated) of the Occupational Health and Safety Act to the Ministry of Labour in order to dilute company resources and further alienate management from the employees. This solidified worker anger at a perceived disregard of worker safety issuesby management.

Once the Application was filed, we were ready to pounce. We “acquired” the company’s letterhead and distributed false company memorandums concerning safety issues. We also falsely identified workers(who we strategically targeted) who were up for disciplinary measures to further smear management’s professional reputation. This was all donethrough “back channels” so that everything leaked out throughout the election cycle. We easily won this campaign. In the United States, a company would have had time to debunk the falsified documentation, but in Canada, the short election timeline left no room to react to the accusations.

We considered these actions to be guerilla war tactics, and we were very good at them. In a littler over a year, we won 96% of the campaignsthat we took to election and only withdrew about 3% of our Applications. We continued to use similar tactics, depending on the industry, but the template was always the same. We would work with Localunions to identify companies with workers who were known to be angry and dissatisfied with their employers, ensure that the targeted workers were determined to win, investigate the company and individual management leadership to verify that they were vulnerable to our attacks, and push the company to lash out at and alienate employees. Once we had set the gears in motion, we would let the fun begin and continue to enflame emotions for 5 to 10 days after filing the application.

The key to this strategy was to knock management off their feet and keep them distracted for the short period of time needed to win the election. It is very easy to keep employees angry and let their emotionsrule for a short period of time. Before management had a clue about what hit them, the election was already over. The election timeline was critical to our success.

The U.S. unions always knew that having 35 to 42 days from petition to election left them at a disadvantage and frequently allowed too much time to effectively run a winning election. Union elections are constructed on a foundation of emotion. Unions build anger and a sense of hopelessness within their targets’ heads to win votes and, the more time that passes, the harder it is to maintain those feelings within potential new members. Employees have a chance to gain insight, information, and an education from their employers, family and friends. The emotional levels simply start to disintegrate and workers being to realize that they have been caught up in the union’s plan to turn them against their employer. The shortened election process allows the unionsto keep these emotions front and center and to allows for much easier control of the employees.

The average cost in the United States for a union to hold an electioncampaign was about $5,000.00 per employee during the old 35-42 day election cycle. Of course, some were much cheaper, and some were more expensive, depending on various factors including the number of organizers (their pay), travel, hotel, living expenses, and more. The unions also gain a significant benefit in the form of reduced costs withthe shorted election timeline. This allows them to allocate their financial resources to more targets than they normally have had in recent years. (Frequently secretively, as in the Fight for $15, which iswidely known to be supported by the SEIUin order to gain new members and dues, but their overt involvement is hidden at every turn through a series of privately registered websites that have no real contact information: FightFor15.org, LowPayIsNotOk.org, RobbedOnTheJob.org, etc.)

Back in 2007/2008, House Bill H.R. 800 (the Employee Free Choice Act)was working its way through the 110th Congress. This bill was the Holy Grail that the labor movement has been seeking. Among many other benefits, it would have allowed organizing elections through card checks(meaning that there would be no election if the union collected a simple majority of signed authorization cards from the employees) and the union would automatically be recognized. It would also have imposed binding arbitration for the initial bargaining agreement following organization and increase the penalties for Unfair Labor Practices (ULPs)committed by employers (but not unions) during organizing drives: H.R. 800 would have provided civil fines of up to $20,000.00 per violation. It also would have tripled back-pay if it was found that an employer inappropriately discharged or discriminated against an employee. The most important part of the bill, even more so than card check recognition, was the binding arbitration.

I surmise that the goal of the current NLRBis to use piecemeal regulation to implement the failed H.R. 800 Bill into labor law. Some of the current activities of the Board that back this up are:
•The NLRB has created aggressive procedures to speed up certification elections and help unions gain power, but is ignoring blocking charges and election bars that hinder or completely deny employees’ rights to decertify a union.
•The NLRB issued aruling that has large implications for employment arrangements that broaden the definition of employer far beyond the traditional legal definition.
◦In what has become known as the “Browning-Ferris” (Joint Employer) ruling, the NRLB has allowed the practice of unions organizing all workers at a facility, even if they actually work for multiple different companies.
•The NLRB has shown a recent interest in scrutinizing employee handbooks, expressing asupposed concern that certain handbook provisions could negatively affect employee’s rights to engage in protected concerted activities.
◦The Board has challenged a number of common handbook provisions, resulting in disparate decisions under quite similar circumstances and leaving consternation and confusion in its wake.
•In one of the most controversial decisions to date, the NLRB has overturned 20 years of precedent and will now permit unions to organize a minority share of an employer’s workforce.
◦As a direct result of this decision, organized labor will now be able to establish footholds in businesses where the majority of employees do not desire to be represented by a union.
•The NLRB has begun accepting electronic signatures.
◦E-Signatures make the showing of interest process (whether bona fide or fraudulent) easier and faster, much as the “quickie” election rules have done.
◦By adding a few apps to automate the process, the unions’ organizingefforts become cheap, potentially more secretive, and not readily subject to challenges (even those valid challenges that simply intend toensure a minimum level of integrity in the showing of interest process).
•The NLRB has even found that employees have the right to harass their employer, as long as the harassing behavior is performed during the course of engaging in “protected concerted activity under the Act”.

The million dollar question is: Where will the Board stop?

Additional changes being lobbied for are varied and have no end in sight. For example, a Bill introduced on September 16, 2015 called the WAGE Act (the Workplace Action for a Growing Economy Act) is designed to amend the NLRA and strengthen both the NLRB and big labor. The bill was introduced in the Senate by Washington Senator Patty Murray (D) as S.2042 and in the House as H.R.3514 by Virginia Congressman Bobby Scott (D). This Act would create new protections for workers who are attempting to unionize and give additional powers to the NLRB:
•Double back-pay and damages that employers must pay to workers who are fired or retaliated against by their employers, even if that employee was an unauthorized alien who is not permitted to work in the United States, and disallow reductions even if the worker obtained otheremployment.
•Provide workers with a private right of action to bring suit to recover monetary damages and attorney’s fees in Federal District Court, just as they can under civil rights laws.
•Provide for Federal Court injunctions to immediately return fired workers to their jobs.
•Ensure companies will be jointly responsible for violations affecting workers supplied by another employer (temporary and contract workers)
•Establish civil penalties of up to $50,000.00 for employers that commit ULPs and doubled penalties for repeating violations made at any time in the previous five years.
•Give the NLRB authority to impose personal penalties on officers and directors of employer violators.
•Allow the NLRB to overturn an election to not recognize a union, skip a rerun election,and simply issue a bargaining order upon determining that an employer interfered with a fair election (or merely committed a violation), as long as a majority of employees in the bargaining unit signed authorizations within the previous 12 months (providing no allowance foremployees to change their minds).
•Set a 30-day limit for employers to challenge NLRB orders, after which the order becomes final and binding, unless a federal court directs otherwise. The NLRB could then go directly to district court to enforce its orders.
•Allow the NLRB to issue civil penalties of up to $10,000.00 per day against any person or employer who violates any of the Board’s whims.

Note that this Act places no restrictions on unions. The WAGE Act would further embolden the NLRBto create an atmosphere of fear among employers and business owners. The desired effect is to instill such fear that employers would never dare challenge union organizing attempts. This Act would provide unions aclear path to organize at will.

The WAGE Act will be a hard bill to pass in the current Congress, but the goal ofthe labor movement and their supporters is to keep chipping away at theestablished labor laws until they pass piecemeal rulings and laws that get them to their ultimate goal of enacting H.R. 800.

As I have established in the past as a Union Official and National Organizing Director, what a labor organization requires to effectively convince workers to vote for the union during representation elections is speed; obscured facts; unfounded promises; anger and mistrust among employees towards management; and, most importantly, a dysfunctional management apparatus, which will be easily attained in this new atmosphere of fear.

Unions were already winning more than 60% of first-attempt elections before any of the changes from H.R. 800 were enacted. Now that “quickie”elections are here due to the reduced election timeline, unions’ wins have only increased. This success will only improve for unions as long as the NLRB remains determined to further aid labor by tying management’s hands at an ever increasing rate. It is now every employers’ responsibility, more than ever before, to get in front of the union mandate and establish a sound and effective employee relations and engagement plan.