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A Legal "Union Avoidance" Strategy for Employers: The Appeals Process
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Written by Erin Johansson   
July 31, 2004

Workers at Pearson Educational, Inc. in Indianapolis have been in limbo since they voted for union representation six years ago.  It all started in June of 1998, when a majority of warehouse and distribution workers chose union representation.  Instead of accepting the results of the election and negotiating wages, benefits, and working conditions with its employees, the company chose to appeal, resulting in a delay that stalled bargaining for years.  On July 6, 2004, the appeals process was exhausted, the result of the election was confirmed, and the company was finally ordered to bargain six years after the workers voted for union representation.1

The workers at Pearson (now Macmillan Publishing), a company that distributes educational books, first voted to decide on union representation with UNITE (now UNITE-HERE) in June of 1997.  The workers fell just short of demonstrating a majority in favor of union support, but the election was subsequently overturned when the National Labor Relations Board (NLRB) ruled the company's coercive behavior affected the results of the election.  A year after the first election, a second election was held, and the workers voted to form a union.  But rather than meeting to negotiate with its employees and their union to hammer out a contract, Pearson turned to the appeals process in order to avoid bargaining. 

32% of workers lack a collective bargaining agreement one year after voting for union representation.2

The appeal did not dispute the fact that the union won the election—there was no request to recount votes or challenge ballots .  Rather, Pearson appealed the second election to the members of the Board, charging that the NLRB Regional Director should not have overturned the first election, and therefore, the second election should not have occurred.  When this appeal failed, the company (still refusing to bargain) appealed to the D.C. Circuit Court of Appeals.  The Court's decision led the Board to hold a hearing before an Administrative Law Judge (ALJ), who then ordered the company to bargain.  Yet the workers' wait didn't end there.  The company appealed the ALJ's decision, and the case went back to the D.C. Circuit Court for a second time. Finally last month, the Court denied Pearson's appeals and ruled that it had to bargain with the union.

Pearson workers were forced to wait for the election results to be finalized, as lawyers filed papers and clerks set hearing dates and judges heard testimony.  Only a handful of those who originally voted for the union are still employed by Pearson.  Of those who haven't left the company, many lost hope of improving their work conditions through collective bargaining.  Yet the delay isn't over for those who endured the wait.  While the Court has finally ordered the company to bargain, the workers won't have a contract until negotiations are complete, which the company could drag out for years. 

An employer that wants to avoid bargaining can exercise its legal right to file appeal after appeal, delaying and undermining the employees' right to form unions and to the collective bargaining process.  This case demonstrates that these legal forms of union avoidance can be just as effective as illegal tactics.

Endnotes

1. Pearson Education, Inc. v. NLRB, 373 F.3d 127 (D.C. Cir. 2004).

2. Kate Bronfenbrenner, "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing." U.S. Trade Deficit Review Commission, Washington DC (2000). Bronfenbrenner analyzed a random sample of more than 400 National Labor Relations Board certification union-election campaigns that took place in 1998 and 1999.
 
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