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Thanks to the NLRB, Workers Organize Unions at a Snail’s Pace
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Written by Erin Johansson   
April 26, 2005

When five workers voted unanimously to form a union through the National Labor Relations Board process, they likely thought it would be a matter of weeks before they could begin bargaining with their employer.  They were mistaken.  Two years and three separate legal determinations later, these workers haven’t gotten to the bargaining stage, thanks to an NLRB election process enabling frivolous legal objections filed by the employer.

In April 2003, the maintenance workers of Shore Club Condominium Association in Ft. Lauderdale, FL, petitioned the National Labor Relations Board (NLRB) to form a union with the International Brotherhood of Teamsters.  The Association filed an objection to their petition for an election, claiming that the employees were domestic employees of individual condo owners and therefore not covered by the National Labor Relations Act and ineligible to form a union.  An NLRB Regional Director dismissed the objection and on June 11, 2003, the workers voted 5 to 0 to form a union. 

Unfortunately, the unanimous vote didn’t speed up the process for the workers to form a union, nor did it compel the Association to respect the law.  The Association still refused to recognize and bargain with the workers, forcing the union to file unfair labor practice charges with the NLRB.  The Association continued its defense that its workers were not eligible to form a union, but both the NLRB General Counsel, and eventually the Board, rejected the Association’s argument and ordered it to bargain. 

Instead of complying with the NLRB order to bargain, the Association appealed this decision to Eleventh Circuit Court of Appeals in late 2003.  In its latest appeal, the employer charged that a union would violate the owners’ Constitutional rights: "If the union demanded money, this could be a ‘taking’ of the unit owners’ property in violation of the Fifth Amendment…[and] if the union demanded information, this could be an unlawful search in violation of the Fourth Amendment." 

Waiting for the NLRB . . .

It takes the NLRB a median of 5½ years to resolve its "highest priority" unfair labor practice cases resulting in backpay awards.1

On February 28, 2005, nearly two years after the maintenance employees first petitioned for a union, the Eleventh Circuit Court dismissed the Association’s objections on the basis of past Board precedent, and ordered them to bargain.2  The Court also dismissed the Association’s laughable Constitutional arguments.

In a déjà vu move, the Association just appealed the decision to the Supreme Court.  So while their employer continues to abuse the appeals process, the workers are unfortunately stuck without union representation.

Five maintenance employees simply wanted to form a union to have a voice on the job.  And while the frivolous appeals were eventually thrown out, this case raises serious questions about the NLRB election process: Why should it take so long for the NLRB and appeals court to resolve virtually any objection to an election?  Why shouldn’t the employer at least be required to recognize and bargain with the employees’ union during this delay? 

When there are objections to an election for political office, the winner takes office while those challenges are resolved.3  But when employees exercise their democratic rights on the job, they must continue to work without union representation throughout legal delays as though they never even voted to form a union. 


What’s deemed a highest priority case?  According to the National Labor Relations Board Performance and Accountability Report for Fiscal Year 2004, the NLRB created the Impact Analysis process to prioritize cases.  Category III cases are considered highest priority cases because they involve “significant issues, large-scale labor unrest, or high economic impact.”

What’s a backpay award?  The NLRB orders employers to award backpay to workers they illegally fired, demoted, laid off, suspended without pay, or denied work as a result of their union activity.

What’s a domestic employee?  Among the employees explicitly excluded from the National Labor Relations Act are "any individual employed…in the domestic service of any family or person at his home."4

 Endnotes

1. Freedom of Information Act request submitted to the National Labor Relations Board by American Rights at Work on October 27, 2004.  Of the 1222 “highest priority”  cases in 2003 where an employer owed backpay to an employee(s), more than half took over 2,008 days to be resolved from the time the case was filed.
2. Shore Club Condominium Association, Inc. v. NLRB , No. 03-15501 (11th Cir. 2005).
3. For more on a comparison of democratic principles in political vs. union elections: Lafer, Gordon. "Democracy at Work: Measuring Union Election Procedures Against American Democratic Standards," forthcoming American Rights at Work publication, spring 2005.
4. National Labor Relations Act, 29 U.S.C. § 152.

 

 
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