NLRB Success Shows Value Of Recess Appointments

Dave Johnson

A government agency is blocked from functioning by obstructionist, party-over-country, Republican Senators. The President makes recess appointments to get government functioning again and the agency starts doing its job. The result: working people are protected. Today the NLRB issued modest new guidelines for union elections that will clear up many, many problems faced by employees.

In the news: The National Labor Relations Board (NLRB) today issued modest new rules for union certification elections that will streamline the process. These are new guidelines to current law, not new law. But companies that fought the Employee Free Choice Act (EFCA) because they said workers should have a “secret ballot” are now fighting the right to have that secret ballot. They instead want these votes delayed for years, with obstacle after obstacle, challenge after challenge, wearing employees down, threatening them, intimidating them, and getting rid of them. So expect another typical firestorm on the right over the NLRB just doing its job.

The Proposed Rules

Chicago Tribune, NLRB offers new rules to speed union certification votes

The National Labor Relations Board unveiled rule changes Tuesday that could speed up votes on whether or not employees at a company want to belong to a union.

NY Times, N.L.R.B. Rules Would Streamline Unionizing

The labor board wants to tighten up the process by ensuring that employers, employees and unions receive needed information sooner and by delaying litigation over many voter-eligibility issues until after workers vote on whether to unionize.

. . . Unions have long complained that it takes too many weeks from when they petition for an election to when a secret-ballot election is held. They say the process gives management too much time to mount an aggressive antiunion campaign with videos and one-and-one sessions with workers.

According to the N.L.R.B., the average amount of time it took from petition to election in 2008 was 57 days.

American companies have repeatedly opposed any effort to shorten the period from petition to vote, saying that would make it harder for managers to tell workers about the disadvantages of unionizing and to ensure that workers gets both sides of the story.

Background On NLRB Deadlock, Recess Appointments, Ruling

Here is the background on why the NLRB is in the news again. The agency was out of commission for many years, blocked from functioning by Republican obstructionism. This allowed companies to do as they pleased, blocking union elections, firing organizers, etc. The Chamber of Commerce has a pretty good explanation of the situation,

In recent years, American labor policy has again become a hot topic of discussion, as demonstrated by the debate over the Employee Free Choice Act. However, the National Labor Relations Board (NLRB) has not been a significant player in the labor policy debate as, until recently, it has been deadlocked with one Republican and one Democratic member for more than two years.

As of this writing, the Board is again at full strength with five sitting Members and it is anticipated that the Board will retain a functional quorum for the foreseeable future. We fully anticipate that the Board will now enter a very active period with numerous decisions and policy changes that will be of keen interest to all stakeholders.

Michael Whitney explained the President’s recess appointments last year, at FDL’s Work In Progress: Obama Appoints Two Democratic Nominees to NLRB, Leaves GOP Nominee Behind,

March 27, 2010. Today President Obama announced a series of recess appointments, including – count ‘em – two seats on the National Labor Relations Board (NLRB). Both appointees, Craig Becker and Mark Pearce, are Democrats nominees. A third nominee, Brian Hayes, a staffer for Senator Mike Enzi, was left behind to be voted on by the Senate.

And now the NLRB is issuing rules that will help working people.

Summary:

  • NLRB deadlocked
  • Republicans blocking appointments
  • Companies violate labor rules with impunity
  • Obama recess appointments to NLRB
  • NLRB functioning again
  • Working People Gain

Reaction To New Guidelines

AFL-CIO: New NLRB Rules ‘Modest Step to Election Fairness’

The National Labor Relations Board (NLRB) this morning released proposed changes in the way union representation elections are conducted that the NLRB says will “reduce unnecessary barriers to the fair and expeditious resolution of questions concerning representation.”

AFL-CIO President Richard Trumka says the proposed changes are a “modest step to remove roadblocks and reduce unnecessary and costly litigation—and that’s good news for employers as well as employees. But he adds:

The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process.

American Rights At Work:

“The proposed rule issued by the NLRB ensures workers’ right to vote—a value all Americans hold dear. Giving workers a fair chance to vote will help level the playing field in America’s workplaces, a commonsense way to ensure that all workers have access to good, family-supporting jobs.

“Under the current, outdated election system, working men and women often experience bureaucratic delays of months or even years, while some never get to vote at all. By cutting back on unnecessary delays and expensive litigation, the rule removes unfair obstacles to workers making their own choice about whether to form a union, and reduces costs for employers and taxpayers alike.

“Just ask the workers”: Statement of United Food and Commercial Workers Union,

Just ask the workers at the 2 Sisters Food Group plant in Riverside, California. When a majority decided they wanted a union voice in their workplace, their employer used the lengthy timeline of the NLRB election process to mount a vicious harassment and intimidation campaign. Instead of investing in their workforce, they hired anti-worker consultants. They distributed anti-union flyers. They forced attendance at daily anti-union meetings. They insisted on including leads who appeared to be supervisors in the unit, which workers agreed to, in order to avoid a lengthy pre-election litigation delay.

As Election Day neared, bosses escalated their campaign by hiring uniformed security guards to monitor the comings and goings of every worker. They illegally fired five workers for their union support—one just a week before the election. When the voting came, off-shift workers were forced to wait at a parking lot gate and then personally escorted one by one to the ballot box by the company CEO, then escorted off company grounds.

The harassment, intimidation and illegal firings were too much. Workers feared for their livelihoods, and they narrowly lost their bid for a union.

Expect Typical Firestorm From Right

Daily Kos: NLRB proposes union representation election reform, (emphasis in post added)

Prepare yourself for a shitstorm of right-wing outrage, and prepare yourself to say “really? over that?

This time, the totally sincere, not-at-all programmed outrage will be over a proposed rule change from the National Labor Relations Board. In the dry language of the NLRB, the new rules would:

  • Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

Keep Government Functioning

The Constitutional purpose of recess appointments is to keep government functioning. When vacancies are left unfilled it hurts all of us. But even though there are a large number of unfilled positions, many blocked by Senate Republicans, President Obama has made very few recess appointments. The result is a a public increasingly frustrated by the hobbled government.

President Bush made 171 recess appointments, Clinton 139. Bush used this power to appoint extremist ideologues, Clinton to get around Republican obstruction.

President Obama has been reluctant to govern make recess appointments because he does not want to upset the Republican opposition. He has made less than 40 such appointments so far.

These recent headlines reflect the situation:

Lawmakers urge Obama to fill government watchdog vacancies

Federal judicial vacancies reaching crisis point

Make Recess Appointments Now!

We Need Change: Give Elizabeth Warren a Recess Appointment

We Need Change: Give Elizabeth Warren a Recess Appointment
The Senate Republican minority has publicly announced it will filibuster any nominee to the Consumer Financial Protection Bureau, unless the President strips the new bureau of much of his ability to protect consumers and hold banks accountable. If Senate Republicans are going to unreasonably withhold their votes, the President has no obligation to cater to their demands. He can use his constitutional powers to make appointments while Congress is in recess after May 27, and nominate the best person for the job.

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