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Editorial Memo: Proposed NLRB Rule Ensures Workers a Fair Vote

June 27, 2011

Zoe Bridges-Curry
(202) 822-2127 x122
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

This year, we have already seen unprecedented attacks on workers’ rights. From Wisconsin to Washington, DC, right-wing legislators and corporate lobbyists have made it clear that their ultimate aim is to take away workers’ rights on the job—not to address the real economic challenges facing everyday Americans. Now, those same politicians and lobbyists are opposing a modest rule proposed by the National Labor Relations Board (NLRB) designed to protect workers’ right to vote in union elections.

When workers want to vote on whether to form a union, they should have a fair chance to do so. By eliminating unnecessary delays and modernizing an outdated system, the NLRB’s proposed rule removes unfair obstacles so that workers can make their own decision about whether to form a union. At a time when millions of American families are struggling just to make ends meet, it’s a modest but much-needed step toward giving more workers a voice on the job and restoring balance to our economy.

The Problem:

Currently when employees decide to hold an election on whether to form a union, they encounter significant obstacles in the form of needless bureaucratic delays and costly taxpayer-funded litigation. In fact, after workers petition the NLRB for an election, it can take months and even years before they get to cast a vote. Some never get to vote at all. The problems are so widespread that, in many cases, workers never even bother to file for an election. When they do, the delays cause unnecessary conflict and disruption in the workplace—a problem for workers and employers alike. Creating still more confusion for both workers and employers, the NLRB is divided into 34 regional offices, each with different practices and procedures for overseeing the election process.

How the Rule Helps:

  • The NLRB election process is bogged down with time-consuming, unnecessary bureaucratic procedures, resulting in election delays and wasted government resources. As an investigation by Human Rights Watch concluded, the current system makes it possible for employers and unions to “drag out legal proceedings for years.”1 By cutting back on needless bureaucracy and delays, the proposed rule modernizes the union election process to ensure workers can vote on whether to form a union if they want to.
  • Instead of providing a level playing field, the current process rewards unscrupulous employers who use litigation to stall an election date, often pursuing claims that are irrelevant or found to be without merit. Research shows that these delay tactics work: When employers pursue litigation, elections occur an average of 124 days after the petition was filed.2 By providing for prompt and predictable scheduling of hearings and discouraging frivolous and baseless litigation, this rule gives workers a fair chance to vote their preference and cuts back on needless and costly litigation.
  • The current NLRB process often creates unnecessary, protracted, and drawn-out legal maneuverings that damage labor relations, hurt productivity, impair safety, and disrupt commerce, in violation of the National Labor Relations Act’s intent.3 During organizing campaigns, more than one-third of companies fire pro-union workers.4 The longer the election is delayed, the more likely the NLRB will charge employers with illegal misconduct. Providing a clear, fair election process and reducing needless litigation will improve stability and reduce conflict in the workplace.
  • The rule also addresses inconsistencies in procedures among the NLRB’s regional 34 offices, ensuring a clear, consistent process for all parties.

Addressing Misconceptions about the Rule:

  • The NLRB has express authority to make this rule change from the National Labor Relations Act and the U.S. Supreme Court. Section 6 of the Act gives the Board considerable discretion to adopt rules regulating the election process, discretion which the U.S. Supreme Court has consistently and repeatedly affirmed.
  • The rule does NOT deny companies the opportunity to express their opinion about union representation. From the first day workers are hired, companies have full access and ample opportunity to make their views clear to workers. In fact, nearly half of charges of illegal conduct filed with the NLRB during organizing campaigns involve employer misconduct that took place before workers filed a petition.5 A fair and predictable election process in no way limits the ability of employers, employees, or unions to avail themselves of their constitutional right to free speech, before or after the election period begins. Opposition to the rule is about politics, not a genuine concern for workers or their rights on the job.
  • This rule is NOT the Employee Free Choice Act. In reality, the proposed rule is a relatively minor clarification of the process for an NLRB secret ballot election: a simple, commonsense way to ensure a level playing field and a fair, standardized process for workers and businesses when it comes to union elections. This rule has nothing to do with “card check” – in fact it only impacts elections supervised by the NLRB.
  • The rule does NOT require that elections be held within a specific time period. It simply makes the process fair by removing opportunities for irresponsible companies to delay the vote and to retaliate against employees who want to form a union. Employers and workers alike are entitled to a process that cannot be manipulated to gain unfair advantage and is clear, precise, and efficient.
  • This rule will NOT hurt our economy or stifle business. On the contrary, when workers are able to choose a union freely, the economy benefits. The Economic Policy Institute estimates that if five million service workers were to join unions, approximately $34 billion in new wages would flow into the economy. Furthermore, unions help build successful partnerships between workers and corporations every day. At companies like AT&T and UPS workers have formed partnerships with their employers to improve their lives, and these businesses continue to lead their industries.

To speak with an expert on the NLRB, the proposed rule, or workers’ rights, please contact Zoe Bridges-Curry at (202) 822-2127 x122 or by email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .


1 Unfair Advantage, 2000
2 UC Berkeley, June 2011
3 http://www.nlrb.gov/national-labor-relations-act
4 Bronfenbrenner, 2009
5 Columbia University, June 2011

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