Congress Holds Hearing on Proposed NLRA Amendments

Witnesses also debate whether reporting requirements should be changed

Allen Smith, J.D. By Allen Smith, J.D. May 2, 2018
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Congress Holds Hearing on Proposed NLRA Amendments

​The National Labor Relations Act (NLRA) should be amended by the Employee Rights Act to ensure secret-ballot elections and require recertification elections, workers testified before the House Subcommittee on Health, Employment, Labor and Pensions on April 26.

In addition, the reporting requirements of the Labor-Management Reporting and Disclosure Act (LMRDA) should apply to worker centers, which act like labor unions when they picket employers, a management attorney testified.

Unions currently can organize through card check campaigns, rather than secret-ballot elections, noted Terry Bowman, a Ford worker from Ypsilanti, Mich. If union organizers get 50 percent plus one of the bargaining unit to sign a card calling for unionization, they can go to the employer, persuade it to unionize and skip an election to decide if there will be a union, he said.

If approached by a union organizer while in the company parking lot or at home, a worker might be intimidated into signing a card without carefully considering the effects of unionization, he testified. "Only the sanctioned and peaceful privacy of an NLRB [National Labor Relations Board] secret-ballot election can ensure that the voter is voting his or her conscience," he stated in written testimony.

He urged Congress to pass the Employee Rights Act, which would require secret-ballot elections and the formation of unions solely through card checks.

The Society for Human Resource Management believes in the right of every employee to make a private choice about whether to join a union.

Recertification

Tommy Jackson, a long-haul auto-transport driver from Hermiston, Ore., who works for Selland Auto Transport, asked Congress to adopt the Employee Rights Act's proposal to require recertification elections. Currently, employees vote once on whether there should be a union, but any decertification of a union can be a drawn-out process. At Selland Auto Transport, he said, workers have been waiting for a decertification election for more than two years.

When asked by Rep. Virginia Foxx, R-N.C., if employees are aware of their right to decertify, Jackson said that the NLRA is "more geared toward unionization" and that the law did not facilitate employees' removal from union membership.

Jackson testified that there should be a secret-ballot election to decide whether the union should continue to represent employees.

Bowman agreed in his written testimony, stating that many members of his family have worked for Ford, but none has ever had the opportunity to vote for—or against—being unionized. "We were all forced to accept a grandfathered union that has been entrenched in the auto industry since most of us were even born."

Rep. Phil Roe, R-Tenn., and sponsor of the Employee Rights Act, said that it was "offensive" to not have the right to vote in a secret-ballot election, calling the right "so American."

Bowman has withdrawn his membership from the union, something he can do in Michigan, a right-to-work state. So he doesn't pay for the union's political activities. But he noted that he has to submit to union representation in the workplace, rather than deal with his employer directly.

Unionization's Advantages

Rep. Carol Shea-Porter, D-N.H., said that she once worked in a nonunionized factory and asked Bowman if he had a pension, if Ford paid well and if the company offered sick pay.

He answered yes.

She called him "so fortunate" because, she said, she didn't have any of these benefits when she worked in the factory. She attributed those benefits to union representation.

Bowman said he wasn't against unions but that he thought they should be modernized for the 21st century and beyond, noting that the Wagner Act, another name for the NLRA, is more than 80 years old.

Rep. Gregorio Kilili Camacho Sablan, D-Northern Mariana Islands, said the NLRA needs to be updated with "meaningful sanctions," noting that the law has no civil penalties for violations of the law.

Proposed LMRDA Amendment

The subcommittee also considered Section 201 of the LMRDA, which requires labor organizations to file annually with the labor secretary a financial report for the preceding fiscal year. This requirement should apply to worker centers, according to Stefan Marculewicz, an attorney with Littler in Washington, D.C.

He noted that there are hundreds of worker centers, which typically are nonprofit organizations that receive government grants and membership fees. Some are funded by labor organizations. According to the U.S. Chamber of Commerce, worker centers include the Organization United for Respect at Walmart, and Making Change at Walmart, both founded by the United Food and Commercial Workers International Union (UFCW); Retail Action Project, founded partly by UFCW; Restaurant Opportunities Centers United; and Jobs with Justice.

The worker centers should be covered by the NLRA, Marculewicz said, criticizing the centers for not considering themselves to be limited by the NLRA restrictions on secondary boycotts and protracted picketing for union recognition.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

"These groups offer many different services to their members, including education, training, employment services and legal advice," he stated in his written testimony. "Increasingly, however, these organizations directly engage employers or groups of employers to effectuate change in the wages, hours and terms and conditions of workers they claim to represent. When it comes to such direct engagement, these worker centers often act no differently than traditional labor organizations."

However, Anne Marie Lofaso, a law professor at the West Virginia University College of Law in Morgantown, W.Va., said that worker centers are not labor unions.

Worker centers provide assistance to low-wage workers, including immigrants, she observed. These services include English-language classes, job-readiness training, occupation-safety training, assistance applying for unemployment benefits or filing a claim for unpaid wages, or help opening bank accounts or obtaining loans, Lofaso noted. Worker centers do not engage in collective bargaining with employers and do not represent employees on an ongoing basis, "and thus are not covered by either the NLRA or the LMRDA," she testified.

 

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