Amid a wave nationally of impromptu ‘wildcat’ walkouts by workers calling attention to job hazards as a result of the COVID-19 pandemic, the federal agency responsible for enforcing workers’ rights has suspended union elections and, effective Wednesday, published a new rule that advocates say will thwart workers who want to organize a union.
The new rule from the National Labor Relations Board, which now has a majority appointed by President Donald Trump, makes significant changes to regulations applying to union organizing campaigns:
- When employers are accused of violating federal labor laws during an organizing drive — for example, by firing union supporters or threatening to shut down a workplace if the union wins — the union election will still proceed and votes would be counted or else impounded, depending on the specifics of the charge against the employer. Under current rules, an election is blocked by an unfair labor practice charge until the charge is resolved.
- When an employer voluntarily recognizes a union after a majority of workers have signed authorization cards for union representation, a vote to decertify it can take place as soon as 45 days later. Current rules require at least one year between certification and a vote to decertify the union.
Writing for the Economic Policy Institute in Washington, D.C., Celine McNicholas says that the new rules “will make it harder for workers to get a fair election” when they seek a union.
EPI research calculates that employers have been charged with violating labor laws in more than 40% of NLRB-supervised union elections.
“Despite this reality, the Trump board’s rule enables employers that violate the law to benefit from their illegal conduct,” writes McNicholas, EPI’s director of government affairs and formerly an NLRB special counsel in the Obama administration.
Unions have typically reserved blocking charges for when “employer conduct was so egregious as to make a fair election impossible,” McNicholas tells the Wisconsin Examiner. “Under the new rule, the Board will basically run tainted elections where employer conduct has made a fair election impossible for workers.”
The result, she writes in an EPI blog post, would have the effect of “enshrining the results of a rigged election.”
McNicholas points to recent walkouts at Amazon, Instacart and Whole Foods by workers who “are being forced to work without adequate protective gear or sick leave if they or their family members get sick,” including from COVID-19. Unions have helped workers win health and safety protections and “have a long history of developing training related to infection disease,” she writes.
“By suspending all union elections, the Trump board is betraying its responsibility to our nation’s workers when they most need these basic rights,” McNicholas writes — and the new rulemaking “makes clear that the agency will find a way to conduct the business it deems important — namely, making it more difficult for workers to unionize.”