Labor board slashes time between petition, election
May 11, 2012
Pittsburgh Tribune Review
Twenty-six workers who maintain equipment at a Weyerhaeuser Co. wood products plant in central West Virginia have petitioned to join a union.
On May 1, the 26 "maintenance techs" at the Heaters, W.Va., plant asked the National Labor Relations Board to conduct an election to determine whether the United Mine Workers will represent them in collective bargaining.
The filing date is significant.
New rules imposed by the labor board effective April 30 quicken the time between a petition and the union election to about 15 days -- down from the usual 40 days or so in years past, according to labor law experts. The rule changes were meant to reduce unnecessary litigation, according to the NLRB.
"We believe the new rules will be helpful. The value is going to be in the avoidance of technical delays," said Robert Chester, director of the NLRB's Pittsburgh district, which covers the western half of Pennsylvania and the northern half of West Virginia.
Companies and their owners, however, are apprehensive about rule changes. They say the new rules violate their free speech rights to persuade workers from unionizing and dilute their due process rights by delaying hearings on their legal challenges to the election petition.
The U.S. Chamber of Commerce sued the labor board in late December challenging what it calls the "ambush election rule." A ruling on the lawsuit, filed in federal court in Washington, is expected by Tuesday.
"The rule change shortens the time period, so employers have less opportunity to get their message across to employees," said Michael Eastman, the chamber's executive director of labor policy. "Labor unions understand that when an employer exercises its free speech rights, employees listen."
Unions and their attorneys say the board's rule changes are needed to curb anti-union tactics.
Ernie Orsatti, a labor attorney for 38 years, said companies often coerce workers by threatening them or "firing ringleaders."
"Employers abuse the system to unreasonably delay the process, so they have more time to intimidate employees," said Orsatti, an attorney at Jubelirer Pass & Intrieri, Downtown. "If you speed up the process, the effects of that intimidation are minimized."
Weyerhaeuser is a publicly owned forest products business with 12,800 employes, annual sales of $6.6 billion and profits of $331 million in 2011. Spokeswoman Nancy Thompson said the company, based in Federal Way, Wash., received a "notice of intent to unionize a small portion" of its 129-person workforce in Heaters, and that Weyerhaeuser operates union shops elsewhere, but she declined further comment.
UMW spokesman Phil Smith said an expedited unionizing process is needed to minimize "mandatory anti-union meetings" in which workers "often hear misleading information about the union." He declined to discuss specifics of the Weyerhaeuser organizing effort because the election is pending.
The rule changes will not affect the 90 percent or so of union elections that are not challenged by companies, just the 10 percent or so that are challenged, which causes delays, experts say.
"Most management folks would say the system worked well for the past 70 years or so," said attorney Douglas Smith, Pittsburgh managing partner of Jackson Lewis, a labor relations and employment law firm that represents companies ranging from small manufacturers to multinational concerns. He said an extended process gives workers time "to make the right decision."
"It's too early to say we see a trend, but we've gotten calls from a few (company) clients who are concerned there may be more (organizing) activity going on," he said.
Union membership in the United States has been at record lows for two years. Just 11.8 percent of workers belonged to a union last year, including the public sector, according to latest Bureau of Labor Statistics, down from 11.9 percent in 2010.
There have been far fewer efforts to organize companies in the past decade, but unions have won a higher percentage of elections. More than 2,400 elections a year were held in 2001 through 2003, compared with 1,600 or less in 2008 through 2010, according to NLRB data.
Unions won about 55 percent of elections in 2001 through 2003. They won between 60 and 69 percent from 2008 through 2010.
"The unions are not filing (election) petitions the way they used to," said district director Chester. "But maybe the unions are being more selective of (companies) they are filing petitions on and getting a better win rate."
Another change in the NLRB rules delays hearings on challenges over what type of jobs should belong in the union. Previously, a company would dispute certain positions it claims are supervisors, and thus, ineligible for union membership. The board would hold a hearing, then render its decision before the election could be held.
Under the new rules, such challenges would not be taken up until after the election. If it turns out that some votes came from ineligible workers, those votes would be tossed out.
"That's important to know before an election because it's usually the supervisor who presents the employer's position to employees," said attorney Smith.
The effect of the labor board's election rule changes is not entirely clear yet, said the chamber's Eastman.
"There will probably be more petitions filed, and unions will probably win more of them," said Eastman. "But at the end of the day, I don't think union density will increase."