Sunday, September 14, 2008

A Proposal for Telephone & Internet Voting, Speedy Elections, and Interim, Members-Only Bargaining

Delay is a significant problem under the NLRA. The Board took more than 100 days to resolve 21% of representation cases in the fourth quarter of FY 2007, and initial bargaining can be further delayed by an appeal to a circuit court. NLRB Performance & Accountability Report FY 2007 at 39-40.

At least two types of delay can occur during the representation process, thereby postponing initial bargaining: (1) the delay between the date an election petition is filed and the date the NLRB conducts the election; and (2) the delay between the date of election and the date of a final determination that the employer is legally obligated to bargain with an elected union. The first type of delay occurs in all representation cases. The second type of delay occurs in a small minority of cases. However, that delay can be extremely long, and it severely frustrates employees’ collective-bargaining rights. Both types of delay are largely a consequence of current law, not the fault of Board personnel.

To speed up the representation process, I propose that the Board start conducting elections by telephone and the internet, as does the National Mediation Board. Second, I propose holding elections before resolving disputes over unit appropriateness. Finally, I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of employees voted in the union’s favor. Below is an elaboration of the problem and my proposals. I’m looking forward to anyone’s comments or counterproposals.

Delay In Holding Elections
In the vast majority of cases, at least 28 days elapse between RC petition and election. The median was 39 days in FY 2007. Memo GC 08-01, at 2. In seven percent of cases, it took longer than 56 days. Id. In a very few cases, it can take quite a while. See, e.g., TransCare Paratransit, 29-RC-11482 (2008) (8 months); Marymount Manhattan College, 02-RC-23151 (2008) (17 months).

Long delays between petition and election are sometimes attributable to a dispute over the appropriateness of the petitioned-for unit. Parties were unable to reach an election agreement in 8.8% of RC cases in 2007 and 11.9% of RC cases in 2006. Memo GC 08-01, at 6. The Board’s current practice is to resolve a dispute over unit appropriateness before holding an election. See Sections 101.20 and 101.21 of the Board's Rules and Regulations. Understandably, it takes the Board some time to resolve the factual and legal issues presented. The election is held afterward.

Delay between petition and election creates an opportunity for parties to coerce employees before they have recorded their sentiment. Even absent coercion, long delay tends to frustrate an organizing movement as employees’ interest in unionization might naturally wane. Thus, to promote collective bargaining and free choice, employee sentiment should be recorded as quickly as possible after the filing of a petition (while ensuring that all parties have notice and an opportunity to discuss unionization before a vote is taken).

Facilitating Speedy Elections
To facilitate speedy elections, I first recommend that the Board adopt the National Mediation Board’s telephone and internet voting procedures. See NMB Representation Manual, Section 13; Internet Voting Comment Period, 34 NMB 200 (2007); Introduction of Internet Voting/Mock Election, 34 NMB 71 (2007); Telephone Electronic Voting, 29 NMB 482 (2002). The NMB has conducted elections by telephone since 2002 and by the internet since October 2007. The NMB assigns each voter two codes to be used in conjunction to keep voting anonymous and secure. Thus far, the NMB’s technology has maintained ballot secrecy.

Using telephone and internet voting, the Board could feasibly hold elections over a period between 7 and 21 days after the filing of the RC petition. Upon filing, the Board could quickly notify the employer, require the employer to immediately post an election notice, obtain an Excelsior list, and send voting instructions to eligible employees. Section 9(c) (1) requires the Board to hold a hearing before conducting an election to decide whether a question of representation affecting commerce exists. A very limited hearing could be held on the sixth day after a petition. The sole issue would be whether the employer affects commerce, a fact that is very frequently the subject of a stipulation. (If Section 9 requires a more substantial hearing -- which is not evident from its text -- I propose a statutory amendment that would permit my proposed procedure.) If 7 days is impracticable, the voting period could be 14 to 21 days.

My second proposal is to change current practice and start holding elections before resolving a dispute over the appropriateness of the petitioned-for unit. This change would enable the Board to hold nearly all elections within 7 (or 14) to 21 days after a petition is filed.

The general rule of “elections first” would have a limited exception. An election should not be held in a clearly inappropriate unit. Regional Directors would have unreviewable discretion to resolve unit appropriateness before holding an election where they find that the petitioned-for unit is clearly inappropriate (e.g., a petition for a unit of managers, or of employees of multiple employers, or employees of an RLA carrier).

A critic might argue that my proposal will result in some wasteful elections. In some cases, the Board will ultimately decide that a petitioned-for unit is not appropriate and therefore it will dismiss the petition or direct an election in a different, appropriate unit. I would respond that current law entails a similar waste. Conducting a hearing on unit appropriateness before an election is a waste when the union ultimately loses the election.

Delay Between Election and Final Determination of Duty to Bargain
As discussed above, the second type of delay is the delay between the election and a final legal determination that a union is the exclusive collective bargaining representative of an appropriate unit of employees (“post-election delay”). Post-election delay can be extremely long. In the meantime, employees don’t get the benefit of collective bargaining.

Post-election delay usually occurs because an employer has filed determinative challenges and/or election objections. Before certifying a union, the Board must resolve challenges and objections, and that process takes time. In some cases, it can take quite a while. Bloomfield Healthcare Center, 352 NLRB No. 39 (2008) (22 months between election and Board certification); Lily Transportation Corp., 342 NLRB No. 121 (2008) (8 months); Reliable Trucking, Inc., 349 NLRB No. 79 (2007) (20 months).

Even after the Board issues a certification of representative, some employers refuse to bargain. It takes time for the GC to file a motion for summary judgment and for the Board to issue a bargaining order. Casino Aztar, 352 NLRB No. 41 (2008) (4 months between certification and Board’s bargaining order); Carroll College, Inc., 350 NLRB No. 50 (2007) (22 months).

Even after the Board issues its bargaining order, employers can and do appeal the Board’s decision to a court of appeals. Again more time elapses. U-Haul Co. of Nevada, Inc. v. NLRB, 490 F.3d 957 (D.C. Cir. 2007) (19 months between Board’s bargaining order and court’s enforcement order); Sprain Brook Manor Nursing Home, LLC v. NLRB, 255 Fed. Appx. 529 (D.C. Cir. 2007) (14 months). In U-Haul and Sprain Brook, it took 4 years and 2 years, respectively, between the filing of the petition and the court order to bargain.

Only a minority of cases involve such lengthy post-election delay. By my calculation, employers filed determinative challenges and/or objections in approximately 7.6% of cases in which the tally favored a union in 2006, and approximately 6.4%, 7.3%, and 7.7% of such cases in 2005, 2004, and 2003, respectively. See, e.g., 2006 Annual Report at Tables 11B, 11C, and 13.

Employers withdrew their challenges or objections in a minority of those cases. Most cases required a hearing and a decision by an RD. As stated above, some cases were appealed to the Board and some further appealed to a court. While this entire group of cases is a relatively small percentage of total cases, the lengthy delay involved is a significant problem under the Act. Employees are deprived of their freely chosen bargaining representative for a long time. This is true regardless whether the employer has appealed based on a good-faith belief in the merit of its arguments or whether it has appealed solely or primarily to delay bargaining.

The wait is particularly troubling because, in 2006, the Board overruled employers' elections objections in 86.8% of the RC cases in which it ruled on them. 2006 Annual Report Table 11D. That percentage was 92.5% in 2005, 91.8% in 2004, and 91.4% in 2003. Thus, in most cases, the long wait results in a union certification. (I found no statistics regarding how often the Board certifies a union after resolving an employer's determinative challenges. I speculate that a union is certified in well over half of those cases).

Proposal to Provide Immediate, Limited Bargaining Rights
To speed up initial bargaining. I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of unchallenged voters cast their ballots in favor of union representation, provided that the union has not challenged a determinative number of ballots. Tallies would occur 22 days after the filing of the RC petition.

Upon such a tally, an employer would have to immediately bargain with the union on a members-only basis until the Board resolves the employer’s determinative challenges, election objections, and/or any dispute over the appropriateness of the unit. While waiting for a final legal determination, employers and unions would be required to sit at the table and bargain with open minds about union members' terms and conditions. When a final legal determination ultimately issues, the parties will have a head start on bargaining.

(A word about why I propose members-only bargaining during this interim period: while I support the Act's principle of majority rule, I think it would be unwise to permit a union to represent non-supporters until a final determination is made that a majority of employees have freely elected the union in an appropriate unit. Under my proposal, employers and non-member employees would be able to deal directly with each other.)

An exception to the limited bargaining duty would exist. No limited bargaining duty would arise, even if a tally favors the union, when the employer disputes unit appropriateness on grounds that the unit includes statutory supervisors, guards and non-guards, employees of multiple employers, etc. Thus, while an election can be held in a unit of putative supervisors, no duty to bargain will arise in such a unit unless and until the Board certifies the union.

Under my proposal, if and when the Board certifies the union, the employer must bargain with it as the exclusive representative of all unit employees. On the other hand, if and when the Board concludes that the unit is inappropriate, sustains election objections, and/or resolves determinative challenged ballots against the union, the limited duty to bargain would be extinguished.

The limited duty to bargain on a members-only basis would have limited benefit to employees if the law were to forbid employers and unions from reaching interim agreements. Thus, my proposal calls for the law to clearly permit parties to execute members-only CBA’s and to apply them to members only. The amended statute would also permit (but not require) an employer to offer non-members the same terms and conditions as exist under the interim CBA.

Skeptical employers might complain that unions will be able to secure limited bargaining rights by committing objectionable conduct. Skeptical unions might complain that employers will retain up to 21 days to coerce employees. To reduce coercion, the proposed statutory amendment would impose a fine on parties (employers and unions alike) found to have coerced employees during an organizing drive. The fines must have sufficient deterrent effect. Likewise, the amendment would impose a fine to deter parties from shirking their interim duty to bargain.

Skeptics of my proposal might also argue that it is unwise to require an employer to bargain with a putative union victor when, in some cases, the employer will ultimately prevail on its objections, challenges, or unit-appropriateness arguments. But, keep in mind that the Board overrules employers' objections in about 90% of RC cases. On balance, I think that the law would promote collective bargaining more effectively if it imposed a limited, temporary duty to bargain than to require employees to wait months or years after a valid election for initial bargaining to start.

I realize that interim, members-only bargaining will present issues. How, if at all, should the Board apply the unilateral change doctrine? What effect, if any, will an interim agreement have after certification? Professor Charles Morris, who advocates for a general duty to bargain on a members-only basis, has argued that the Board will be able to handle such issues effectively. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace 236-37 (2005). I agree and will leave my thoughts on such issues for another day.

To conclude, I think my proposal has a number of advantages. It speeds up elections and initial bargaining. It retains the secret-ballot election, which ensures, to the greatest extent possible, that employees will record their choice free of coercion. Moreover, it ensures that all unit employees and the employer will have at least 7 days to speak non-coercively about the relative advantages or disadvantages of unionizing before employees cast their ballots. Finally, while I like the merits of my proposal, it also might provide some common political ground. I’m sure that it can be improved. I’m hoping to get some input.