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The NLRB Makes Violating Workers' Rights More Difficult

Amy Traub

 “With this rule, the Administration has made clear that it plans to pursue a partisan agenda to overturn longstanding and effective labor policy.”

That quip by Linda Kelly, Senior Vice President at the virulently anti-union National Association of Manufacturers, should be an early favorite for 2015 quote of the year. The rule that has her trade group and other industry lobbyists up in arms is a commonsense proposal by the National Labor Relations Board to modernize and streamline the process for workers’ to exercise their decades-old right to freely form unions.

The irony stems from Kelly’s insistence that current labor policy is “effective.”

Perhaps from Kelly’s perspective, current labor policy has been effective—at suppressing employees’ efforts to unionize, keeping down wages, and generally preventing most working people from enjoying the benefits of the nascent economic recovery. Over-the-top industry rhetoric aside, a few modest changes to the rules governing union elections won’t fundamentally change those trends. But combined with other recent steps by the NLRB and the Department of Labor, the prospects for working people to regain some leverage in the U.S. economy may start to look brighter.

First, consider that NLRB election rule. Changing the current “effective” procedures is needed because it can take months, even years before workers who have expressed a clear interest in unionizing actually have an opportunity to vote on union representation. In the meantime, delays give employers an opportunity to twist and even break the law in order to prevent their employees from unionizing. Indeed, studies by researchers at Columbia University and the University of California at Berkeley find that the longer the delay between workers’ filing a petition for union representation and the date the NLRB calls for an union election, the more likely it is that the NLRB will issue complaints charging employers with illegal activity, such as unlawfully firing workers for exercising their right to organize, threatening them, or illicitly retaliating against union supporters.  Steps like allowing documents to be filed electronically, rather than by mail, and speeding up the dates of hearings and filings will allow union elections to proceed more quickly, cutting down on opportunities for illegal interference.

Other recent NLRB decisions would also empower working people trying to organize, like a ruling that workers can use their company email accounts for union organizing if they do it on their own time, and a series of legal complaints that aim to hold fast food giant McDonald’s accountable for illegal anti-union activity undertaken by the franchise restaurants which it substantially controls. The McDonald’s case in particular has far reaching implications for other employers that have tried to hide behind franchisees and contractors in order to evade responsibility for mistreatment of employees.

Why do the rules on union organizing matter? Today, just 11.3 percent of wage and salary workers are union members—a steep drop from decades past. But this is far from a story of irrelevance: unions’ decline is at the heart of many of the most persistent problems plaguing the U.S. economy, from rising inequality to stagnant wages to rising corporate dominance of our politics. Researchers find that the decline in union power and density accounts for a full third of the increase in wage inequality among men since 1973 as well as a fifth of the increased inequality among women. When employees lack organized bargaining power in the workplace, it’s not surprising that wages stagnate and an increasingly share of the nation’s economic growth flows to corporate profits. On more personal note for workers, recent academic research even suggests that union members have higher life satisfaction than non-members and that union membership is associated with higher marriage rates, primarily due to “the increased income, regularity and stability of employment, and fringe benefits that come with union membership.”

The past few years have seen a wave of activism by low-paid workers across the country, from Walmart associates to fast food employees to federal contract workers, standing up and calling for better wages and a voice at work. If America’s current labor policy was actually "effective," they wouldn’t have to walk off the job and take to the streets to call for basic rights. Instead, we have a status quo that works only for the National Association of Manufacturers, the Chamber of Commerce, the National Retail Federation, and other business lobby groups with a stake in making sure it remains difficult for working Americans to band together and win their fair share of the economy’s gains. Let’s hope the NLRB continues to modernize and reform the now very ineffective rules intended to give workers a voice.