Employees looking to kick a union out of their workplace got a bit of help Aug. 1 from the National Labor Relations Board’s top attorney.
NLRB general counsel
Unions often file unfair labor practice charges against a business when a worker petitions the NLRB to disband or “decertify” them. Those charges typically allege that an employer used dirty tricks either to incite workers to file the petition, or to gin up support for de-unionization. It’s generally unlawful for an employer to encourage a decertification effort.
The move is also a delay tactic at times—unions can prolong a legitimate election and rally support for their organization in the meantime by filing “blocking” charges. The NLRB’s new policy means the decertification petitioner now has an avenue for participating in ULP cases.
The NLRB’s policy change may seem like a routine procedural tweak, but advocates on both sides say it’s another potentially significant weapon against unions. It follows a series of recent policy changes by the conservative majorities at the U.S. Supreme Court and the five-member NLRB that they say could threaten the future of labor organizing.
Steven Swirsky, an Epstein Becker Green attorney who represents businesses in labor-management disputes, told Bloomberg Law he “wouldn’t be surprised” if conservative groups such as the National Right to Work Legal Defense Foundation used the procedural step against unions.
“They’ve been pretty resourceful,” Swirsky said.
The National Labor Relations Board protects the rights of most private-sector workers to engage in union activities, investigates unfair labor practice charges, and oversees union representation elections. The NLRB also has authority over elections to replace a union or vote one out entirely—in what’s known as a decertification election.
Gives Risk-Takers ‘Place at the Table’
Up until now, the decertification petitioner wasn’t considered a party “in any of these type of hearings,” Russell Brown, president of the Center for Independent Employees, told Bloomberg Law Aug. 2. The center provides representation to workers fighting unions.
“So now as a party—and this doesn’t change the fact that the union’s unfair practice charge will be dealt with fairly if it has merit—if there’s other circumstances that can be brought to light, the person that took all the risk to get this petition moving has a place at the table and their point of view will be given weight,” Brown said.
Representatives of the Service Employees International Union and the AFL-CIO didn’t immediately respond to requests for comment.
More GOP Help on the Way?
The GOP majority on the NLRB has also expressed skepticism about the policy of pausing a union decertification in certain cases when the union files a ULP against the employer.
Those members have said they’d like to review the policy, which in all likelihood means it will change when an appropriate case comes before them.
That could deal a serious blow to unions’ ability to fight off decertification efforts in combination with Robb’s latest policy directive.
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(Updated to include additional reporting.)