The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence
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Bronfenbrenner, Kate; Warren, Dorian
[Excerpt] One of the long held performance objectives of the National Labor Relations Board (NLRB) has been to reduce the time period between the filing of the petition and union certification elections. This year the NLRB's 2010 Performance Accountability Report claimed that 86.3 percent of all NLRB elections were held within 100 days of the petition being filed and 95.1 percent of all initial elections were held within 56 days of the petitions being filed. Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition. But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed (see Figure 1). Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay”. These data on the timing of petition and election dates matter because the number of days between the petition and the election may make a great deal of difference as to whether or not a group of workers get union representation or a first contract. The time between the petition and the election also may make a difference as to whether an individual worker gets fired or gets his or her wages or benefits cut in retaliation for union activity, or ends up leaving a job, with or without a settlement, because of the coercion, threats, and/or harassment suffered throughout the employer's campaign. Over the last three decades there has been a wealth of scholarly research that has documented the gauntlet of threats, fear, retaliation, misinformation, and harassment workers have to endure in order to exercise their right to union representation and collective bargaining. However, none of the recent NLRB certification election research has examined the relationship between employer opposition and the timing of the election. This is because for the few researchers who have done the hard work of connecting election to unfair labor practice (ULP) data, the only timing variable they had to use for employer behavior was the date ULPs were filed. But since ULP charges can be filed as much as six months after the allegation occurred, "date filed" grossly underestimates when employer opposition begins. It is for this reason we were asked to follow up on our 2009 study on employer opposition and the breakdown of the unfair labor practice process (see No Hold Barred: The Intensification of Employer Opposition to Organizing) to examine the relationship between the petition date, election date, and when the most serious employer opposition occurs during representation campaigns. Upon completion of this analysis we would be able to determine whether our data provide empirical support for significantly reducing the number of days between petition and election in NLRB certification elections.
union certification; National Labor Relations Board; NLRB; unions; worker rights; unfair labor practice; labor law
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