PROPOSED CHANGES TO UNION ELECTION PROCEDURES
By Daniel Lasky, President Emeritus Elect
On June 21, 2011, the National Labor Relations Board (NLRB) proposed dramatic changes to its current union election procedures. The overall effect of these changes if enacted will make it easier for unions to organize the unorganized.
Under the current rules, employers have 30 to 40 days between receiving notice of a union representation election and the election itself. The proposed rule provides for quicker elections in as few as 10-21 days, therefore employers and their anti-labor attorneys will have a difficult time combating union organizing campaigns by eliminating the advantages they presently have that allows them to purposely impede the process for months before an actual election is held.
Among the proposed changes, the Board would allow organizers to file required forms electronically---previously all communications have to be conducted in writing. It also requires employers to turnover e-mail addresses for eligible voters instead of just physical addresses.
In the past, through numerous rulings especially during the Bush Administration, the NLRB has consistently given employers wide latitude to threaten, harass and spy on their employees who were trying to organizing which effectively diminished the employees’ lawful protected rights to organize.
These welcome and long overdue changes will result in rules that are simpler, and clearer, achieving the true aim of the National Labor Relation Act by making sure that employees are free to choose whether or not they want to be represented at work, in a quick and accurate way. These proposed changes shall likewise protect the workers’ rights by eliminating the “unfair and unlawful practices that has been ongoing and is still the unrestricted, unabated modus operandi conducted by the anti-labor law firms hired by combative employers.
Weingarten Rights
Employees Right to Union Representation
The right of employees to have Union representation at an investigatory interview has been upheld by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten Inc. 251, 88LRMM2689). These rights have become known as the “Weingarten Rights”.
If an employee has a reasonable belief that adverse consequences may result from what he or she says, the employee has the right to request that a union representative be present during an investigatory interview, although management is not required to inform the employee of the employer’s Weingarten Rights. IT IS THE EMPLOYEES RESPONSIBILITY TO KNOW AND REQUEST REPRESENTATION.
Employees have rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
When the employee makes the request for a union representative to be present, management has these options:
1. It can stop questioning the employee until the Union Representative arrives;
2. It can call off the interview;
3. It can tell the employee that the interview will be called off unless the employee voluntarily gives up his or her right to a union representative---(an option that the employee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion---THAT IS NOT TRUE. The Supreme Court clearly acknowledges that the Union Representative has the right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview, management must inform the union representative of the subject of the interrogation. The union representative must also be allowed to speak privately with the employee before the interview. During the questioning, the union representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress, the union representative cannot instruct the employee what to say, however, he has the right to advise him/her how to answer a question. At the end of the interview, the union representative can add information to support the employee’s case.
Does Weingarten Rights Apply To Non-Union Workers???
Since the Weingarten decision, the NLRB has changed its position four times on whether the right of representation should apply to non-union worker. In 1982, the NLRB held that Weingarten Right also applied to employees who request the presence of a co-worker in a non-union setting.
However, just a couple of years later, the NLRB reversed itself and rejected its earlier interpretation of Section 7 and declared that non-union employees did not have Weingarten Rights.
In 2000, the NLRB once again reversed giving non-union employees the right to have a co-worker present during an investigatory interview.
On June 15, 2004, during the Bush Administration, the NLRB dominated by a Republican majority (3-2) ruled that non-union employees are not entitled to have a co-worker accompany them to an investigatory interview---denying them the Weingarten Rights---leaving them legally naked and at the mercy of management.
It is interesting to note that the flip flop decisions not to extend Weingarten Rights to non-Union workers were initiated only when the NLRB held a Republican majority which demonstrates conclusively of the vast ideological differences that exist between the Republican/Democratic parties when determining the rights of the working people.
