What this report finds: Workers are not experiencing democracy in the workplace, and this disenfranchisement is abetting the Trump administration’s broader attack on democratic processes in the United States. While nearly half of nonunionized workers say they would like a union in their workplace, a National Labor Relations Board (NLRB) packed with Trump appointees has made it more difficult for workers to exercise their right to elect union representation—a right guaranteed to private-sector workers by the National Labor Relations Act (NLRA). Here are just some of the actions taken by the Trump NLRB that have or seek to reverse reforms made under the Obama administration:
- Suspended union elections for a period early in the coronavirus pandemic, affecting 195 elections petitions with nearly 17,000 workers seeking to unionize.
- Implemented provisions in a “representation case procedures rule” that will make union elections take longer and be more likely to involve unnecessary litigation.
- Issued a decision making it easier for employers to manipulate and change the bargaining unit sought by employees, and by this gerrymandering, create a unit of eligible voters less likely to vote for a union.
- Issued a rule requiring employers who voluntarily recognize a union selected by a majority of their employees to post a notice that the union has been recognized but that employees have a 45-day period to ask for an election.
Why it matters: The decline in workplace democracy has ramifications for our overall political system. As union membership has declined, policies that serve working people have lost out to policies supporting corporate interests.
What we can do about it: Policymakers must enact reforms to safeguard workers’ right to a union and protect our overall democracy. Congress must pass the Protecting the Right to Organize (PRO) Act, which would streamline the process of forming a union, bolstering unionized workers’ chances of success at negotiating a first agreement, and hold employers accountable when they violate workers’ rights. And the Senate must pass two bills that have passed the House of Representatives: the John Lewis Voting Rights Advancement Act, which would restore protections against discriminatory voting policies that were gutted by the Supreme Court’s decision in Shelby County v. Holder, and the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which includes election provisions that would provide no-excuse absentee ballot voting, at least 15 days of in-person early voting, accessible online and same-day voter registration, and equal voting access for voters with disabilities.
Introduction
As we enter the final weeks of the presidential election, much attention will be focused on our nation’s electoral system and democracy. The COVID-19 pandemic has already caused disruptions in primary elections and the looming crisis with funding of the United States Postal Service (USPS) poses an additional threat to our election system as more voters are forced to/wish to vote by mail (Corasaniti and Saul 2020). While some of these issues are linked to the pandemic, the Trump administration and Republican leaders have sought to erode our democratic processes by attempting to restrict voting and delegitimize elections. For example, this year, the Republican leadership invested $20 million to fight lawsuits aimed at reforming state restrictions on voting (Millhiser 2020). President Trump appointed a Postmaster General who has actively worked against a fair election, instituting policies that have led to a slowdown in mail service and jeopardized the ability of the USPS to move mail ballots at a time when more Americans are relying on mail ballots (Nichols 2020). And, while voter fraud is exceedingly rare (Feldman 2020), President Trump and the Republican leadership routinely reference widespread voter fraud to promote further restrictions on voting and undermine trust in the election process (Rizzo 2020).
The canary in the coal mine foretelling the threats to the democracy of our general elections has been the Trump administration’s consistent attack on workplace democracy—the ability of working people to elect representation in the workplace. It is true that the process by which workers vote for a union to represent them is badly broken and has been for some time, and has long been a source of political debate (see for example, McNicholas et al. 2019; Lafer and Loustanau 2020). However, rather than working to restore workers’ collective bargaining rights, the Trump administration has significantly further eroded them. Some of the most prominent examples are the actions that the Trump administration has taken to weaken reforms ushered in by the National Labor Relations Board (NLRB) under President Obama. In 2017, the U.S. Chamber of Commerce listed 10 actions that it wanted the Trump NLRB to take to restrict the rights extended under the Obama NLRB. The Trump NLRB has delivered on all 10 items on the U.S. Chamber of Commerce’s wish list (McNicholas, Rhinehart, and Poydock 2020). In this report, we examine a few of the key ways the Trump administration has undermined workers’ right to a union—largely by further rigging the union election system against working people—and consider the larger implications for our democracy.
Background on union elections
When it was passed in 1935, the National Labor Relations Act (NLRA) held out the promise that workers would have democratic rights in the workplace similar to the rights held by “a citizen in the field of government.”1 However, in the 85 years since the law was enacted, union elections have never resembled the general election process. Today, workers face an election process that is skewed in the employer’s favor and is riddled with bureaucracy and delay.
The formal union election process commences when workers or their union representative file a representation petition with the NLRB that describes the “bargaining unit”—the group of workers that would be covered by the organizing and collective bargaining. The petition must be supported by signatures from at least 30% of workers in the bargaining unit. However, employers are legally allowed to try to gerrymander the bargaining unit to make it more difficult for workers to organize and show support.2 Once a representation petition is filed, the NLRB investigates the petition and eventually schedules an election in which workers vote on whether they want union representation. However, during this period, employers often exploit the law to drag out the scheduling of an election and use the time between the petition and the election to campaign against the union.
During the election campaign, employers use their access to workers and control of the workplace to make sure workers are repeatedly exposed to the employer’s views about unionization. Employers hold captive audience meetings (mandatory meetings where workers hear the employer’s anti-union message) and use company email to broadcast anti-union messages. Meanwhile, employers legally can keep union organizers out of the workplace so that organizers are unable to talk directly with employees on the job.3 As a result, workers are bombarded by the employer’s message and deprived of the ability to hear from their union at the workplace.
In addition to subjecting workers to lopsided communications, employers often diminish union support by firing workers who are in favor of the union. Though it is illegal to fire workers for exercising their right to collective bargaining, employers are charged with firing workers in nearly 20% of all union elections (McNicholas et al. 2019). Under current labor law, employers face no real consequences for illegally firing workers—just an order that they rehire the worker and pay the back wages the worker would have earned minus the wages the worker did receive, or could have earned, in the interim. In other words, firing union supporters is just treated as a cost of doing business. The law does not provide for monetary penalties against employers for illegally firing pro-union workers, or for damages to employees for the hardships they face when they are fired illegally.
Once the election is conducted and workers vote to form a union, management is theoretically required to honor the vote and sit down to begin good-faith negotiations toward a contract. However, employers often drag their feet in bargaining over a collective agreement. In some cases, employers slow-walk the bargaining process and fail to bargain in good faith. In other cases, employers take advantage of current labor law, which allows them to refuse to bargain if they are challenging an issue related to or arising out of the original election, like the composition of the bargaining unit. This process can take years, and in the meantime, the workers’ decision to form a union and negotiate a fair contract is thwarted.4
How the Trump administration has further undermined the process of union elections
During the Obama administration, the NLRB issued rulings to modernize the election process and make it more efficient (as noted above and explained in detail below). However, rather than upholding these common-sense rule changes, the Trump administration has systematically worked to make the flawed union election process even more difficult for workers who want a union. Specifically, through rulemakings and decisions, the Trump NLRB has further rigged the system against working people, limiting unions’ access to workers and making it harder for workers who have won union representation to keep that representation.
Further rigging the union election process
Within weeks of the swearing in of its new Trump-appointed members, the Trump NLRB began a rulemaking process to weaken rules that modernized the union election process and made it more efficient.5 Initially, it drafted a representation case procedures rule that weakened an Obama NLRB rulemaking that streamlined the election process to allow employees to vote on union representation in a timely manner. But in its rush to further rig the union election system against workers, the Trump board adopted this representation case procedures rule without providing the public with an opportunity for “notice-and-comment” as is required for substantive rulemaking under the Administrative Procedure Act (APA). As a result, the U.S. District Court for the District of Columbia held that many elements of the rule were largely invalid.6 While some minor elements of the rule were not overturned by the court, the entire representation case procedures rule was remanded to the NLRB for reconsideration. Unsurprisingly, the Trump NLRB announced on June 1, 2020, that all elements of the rule not expressly invalidated by the court would be immediately implemented (NLRB 2020). So, union elections will take longer and be more likely to involve unnecessary litigation.
Further limiting access to union election voters
Under current labor law, workers do not have equal access to information from employers and union representatives during a union election campaign. As noted earlier, employers can inundate workers with anti-union messages through captive audience meetings, one-on-one meetings with supervisors, and workplace emails or bulletins. Meanwhile, employers can keep union organizers out of the workplace so that organizers are unable to talk directly with employees on the job.
The Trump NLRB proposed a rule that would make it even harder for union organizers to communicate with workers. For over 50 years, the NLRB has required that an employer must provide a list of all employees eligible to vote in a union election. This list must include employee contact information. Originally, the NLRB required employers to provide the names and home addresses of all eligible voters.7 In 2014, the Obama NLRB amended this requirement to include available personal email addresses and available personal cell phone numbers. The Obama board concluded that access to employees’ more modern contact information simply modernized the long-standing requirement established in Excelsior Underwear, Inc, the 1966 NLRB case that affirmed the contact information requirement.
In July of this year, the Trump NLRB issued a proposed rule that would eliminate the mandatory disclosure of employees’ personal telephone numbers and email addresses during a union organizing campaign.8 The proposal ignores the reality of the dominant role electronic communication now plays and returns the voter list requirement to outdated means of communication, effectively depriving workers of information on workplace representation.
In addition, the Trump board issued a decision that deprived workers of the right to use their employer’s email system to communicate—on nonwork time—for NLRA-protected purposes. In Caesars Entertainment Corporation, the Trump board overturned the Obama board’s 2014 ruling in Purple Communications, which held that if an employer gives employees access to an email system, then it must allow them to use it to communicate with each other for statutorily protected purposes, unless it can demonstrate a justification for limiting use of the email system.9 In reaching its decision in the 2019 Caesars case, the Trump board ignored Supreme Court precedent and its statutory obligation to adapt the NLRA to changes in the workplace. The decision will make it more difficult for workers to communicate with each other about workplace issues.
Delegitimizing the results of union elections
When workers form a union, the union remains the bargaining representative unless and until it is voted out by employees. The union negotiates a collective bargaining agreement with the employer, and its status as the employees’ representative continues from contract to contract unless a valid and timely petition is filed challenging the union’s continued status as the choice of a majority of employees. There has long been a narrow exception in the law allowing employers claiming to have evidence that the union no longer has the support of a majority of employees to notify an incumbent union that the employer will be withdrawing recognition of the union at the end of the current collective bargaining agreement. However, if the union does in fact have the support of a majority of employees at the expiration of the contract and can prove it, it is against the law for the employer to withdraw recognition from the union. This long-standing rule makes sense: Employers should not be allowed to unilaterally withdraw recognition from a union that in fact has the support of a majority of employees at the time of withdrawal.
However, in Johnson Controls, Inc., 368 NLRB No. 20, the Trump board established a new rule—that employers are legally permitted to withdraw recognition at the conclusion of the collective bargaining agreement if they claim to have evidence that the union does not have majority support. If the union wants to get its status back, it must file a petition for a new election and prevail in that election. There is no reason to require a union and employees to go through the NLRB election process when the union still has majority support. Moreover, the rule sets up an imbalance in the law—the rule allows employers to withdraw recognition without an election, but employers can still, at the beginning of a bargaining relationship, insist on an election and refuse to recognize a union that has demonstrated it has majority support. This imbalanced, unjustified undermining of union status shows the anti-union, pro-employer bias of the Trump board. This decision merely serves to undermine the results of a union election.
Gerrymandering bargaining units to make them employer-friendly
One of the first decisions the Trump NLRB issued allowed employers to, again, essentially gerrymander the bargaining unit, making it easier for them to force workers into or out of the unit of eligible voters. The NLRA gives workers the right to organize in “a unit appropriate” for collective bargaining with the employer. When workers want to form a union, they file a petition with the NLRB seeking an election and they specify the group—the bargaining unit—that is organizing. The Obama NLRB ruled in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), that the bargaining unit sought by employees when petitioning to form a union at their workplace was presumptively appropriate if the employees shared a “community of interest,” and that the NLRB would respect workers’ choice unless the employer made a compelling case as to why the bargaining unit was not appropriate.
In PCC Structurals, Inc., 365 NLRB No. 160 (2017), which overturned Specialty Healthcare, the Trump board made it easier for employers to manipulate and change the bargaining unit sought by employees. The board now requires that the differences between employees in the requested unit and employees outside the unit outweigh the similarities, even though the NLRA requires “an” appropriate unit, not the “most” appropriate unit or a “more” appropriate unit (McNicholas, Poydock, and Rhinehart 2019).
Making it harder to get a union outside of the flawed union election process
Under the NLRA, employers presented with evidence that a majority of employees support forming a union can voluntarily recognize the union, which eliminates the need for a union election. The Trump board finalized a rule that undermines this long-standing practice of employers voluntarily recognizing unions upon evidence that the union enjoys the support of a majority of employees.10 Under the Trump board’s rule, employers who voluntarily recognize a union selected by a majority of their employees must post a notice that the union has been recognized, but that employees have a 45-day period to ask for an election—even though a majority of employees will have just indicated their support for the union. Requiring the 45-day notice is a waste of time and resources because workers decertify their new union so rarely—in only 1.2% of cases.11
This rule simply makes it more difficult for workers to establish union representation through voluntary recognition, instead forcing workers and employers to participate in an NLRB-administered election process that involves delays and arcane processes.
Suspending all union elections during the pandemic
On March 19, the Trump NLRB ordered a suspension of all union elections—including mail ballots—through April 1. In the midst of the pandemic, when many workers were navigating issues of health and safety, and looking for ways to have their voices heard, the agency responsible for ensuring workers have the right to a voice in the workplace denied them the ability to exercise these rights. By suspending all union elections, the Trump board essentially cut off workers’ ability to win union representation. The board undertook this action while simultaneously finalizing the rule discussed in the previous section that makes it more difficult for employers to voluntarily recognize a union.12
During the suspension, 21 election petitions were filed, representing more than 1,700 workers seeking to unionize. By the Trump board’s own estimate, the median time between petition and election is 23 days.13 Therefore, it is important to consider the petitions filed from one to 23 days prior to the NLRB’s suspension of petitions, as these elections were also likely impacted by the decision. Counting all petitions filed in this roughly six-week period means that 195 elections petitions with nearly 17,000 workers seeking to unionize were impacted by the NLRB’s suspension of union elections during the pandemic. The affected workers include many who were deemed “essential” during the pandemic. One in six affected workers (16.4%) was in health or emergency services (such as police officers, firefighters, and EMTs).
Conclusion
As the examples in this report demonstrate, the Trump administration has systematically attacked workplace democracy and made it more difficult for workers to exercise their right to elect union representation. The data bear this out: While nearly half (48%) of all nonunion workers say they would vote for a union if given the opportunity (Kochan et al. 2018), only 11.6% of workers are represented by a union (Shierholz 2020). Clearly, workers are not experiencing democracy in the workplace.
The decline in workplace democracy has ramifications for our overall political system. As union membership has declined, political representation has shifted to the right (Feigenbaum, Hertel-Fernandez, and Williamson 2018) and policies that serve working people have lost out to policies supporting corporate interests (McNicholas, Rhinehart, and Poydock 2020). For example, consider that Congress has not approved a raise in the minimum wage in 13 years—the longest Congress has ever gone between increases since establishing a minimum wage in 1938. Any attempt at passing legislation to restore workers’ right to a union has failed as well. In contrast, corporate interests have advanced. For example, 10 out of 10 policies in an anti-worker agenda from the U.S. Chamber of Commerce have been implemented by the Trump administration. This is not a functioning democracy (McNicholas, Rhinehart, and Poydock 2020).
Policymakers must enact reforms to safeguard workers’ right to a union and protect our overall democracy. A new administration must prioritize policies that serve working people and restore their right to workplace democracy. Passing the Protecting the Right to Organize (PRO) Act is a critical first step. The PRO Act would help ensure that workers have a meaningful right to organize and bargain collectively by streamlining the process of forming a union, bolstering unionized workers’ chances of success at negotiating a first agreement, and holding employers accountable when they violate workers’ rights (McNicholas, Poydock, and Rhinehart 2019). In February the PRO Act passed the House of Representatives with a bipartisan vote of 224–194. However, days before the passage of the PRO Act, a Statement of Administration Policy issued by the White House stated that President Trump would be advised to veto the bill if it were to reach his desk (OMB 2020).
Further, policymakers must enact legislation that protects our democracy, including the John Lewis Voting Rights Advancement Act and the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, both of which have passed the House of Representatives. The John Lewis Voting Rights Advancement Act (formerly known as the Voting Rights Advancement Act) would restore protections against discriminatory voting policies that were gutted by the Supreme Court’s decision in Shelby County v. Holder, a decision that has led to state and local actions that disenfranchise communities of color (Levine and Rao 2020). The HEROES Act includes election provisions that would provide no-excuse absentee ballot voting, at least 15 days of in-person early voting, accessible online and same-day voter registration, and equal voting access for voters with disabilities—all of which “are essential to help this nation safeguard the November 2020 election” (Leadership Conference on Civil and Human Rights. 2020). The Senate must pass both pieces of legislation in order to safeguard our fundamental right to vote.
NLRB election petitions filed from February 25 to March 31, 2020
| Case number | Case name | Filed date | Number of employees on petition |
|---|---|---|---|
| 02-RC-256886 | Northwell Health Physicians Partners Opthalmology | 2/25/2020 | 53 |
| 02-RC-256916 | Breaking Ground, Inc. | 2/25/2020 | 30 |
| 05-RD-256888 | Mountaire Farms Inc. | 2/25/2020 | 800 |
| 07-RC-257046 | PACE Southeast Michigan | 2/25/2020 | 115 |
| 07-RC-257047 | PACE Southeast Michigan | 2/25/2020 | 65 |
| 07-RD-256867 | Alpha Baking Company, Inc. | 2/25/2020 | 9 |
| 09-RC-256883 | Appalachian Power Company | 2/25/2020 | 7 |
| 10-RC-256885 | Appalachian Power Company | 2/25/2020 | 13 |
| 12-RC-256905 | Orlando Sentinel Communications Company, LLC d/b/a Orlando Sentinel | 2/25/2020 | 50 |
| 16-RC-256920 | The Atlantic Group, INC. | 2/25/2020 | 63 |
| 18-RC-256880 | Aspirus Ironwood Hospital – Clinics, Inc. | 2/25/2020 | 15 |
| 21-RC-256928 | Southern California Edison | 2/25/2020 | 850 |
| 28-RC-256955 | Balfour Beatty Communities, LLC | 2/25/2020 | 36 |
| 01-RC-256940 | Beth Israel Deaconess Hospital – Plymouth, Inc. | 2/26/2020 | 25 |
| 03-RD-256936 | Ardent Mills, LLC | 2/26/2020 | 46 |
| 05-RC-256975 | Indivisible Project | 2/26/2020 | 58 |
| 08-RC-257004 | Morrow County Firefighter’s & Squadmen’s Association (MCFSA) d/b/a Morrow County Emergency Medical S | 2/26/2020 | 9 |
| 13-RC-256995 | Roseland Community Hospital | 2/26/2020 | 100 |
| 16-RC-256972 | Johnson Controls, Inc. | 2/26/2020 | 118 |
| 18-RC-256986 | River Market Community Co-op | 2/26/2020 | 39 |
| 25-RC-256973 | FCA US LLC | 2/26/2020 | 6 |
| 29-RC-256934 | Allied Transit Corp/ Empire State Corp/ Empire Charter Service Inc | 2/26/2020 | 250 |
| 02-RC-257151 | XPO Logistics Freight, Inc. | 2/27/2020 | 50 |
| 02-RC-257165 | Breaking Ground, Inc. | 2/27/2020 | 6 |
| 02-RC-257166 | Breaking Ground Housing Development Fund Corporation | 2/27/2020 | 8 |
| 02-RC-257167 | Breaking Ground Housing Development Fund Corporation | 2/27/2020 | 6 |
| 03-RC-257044 | First Student, Inc. | 2/27/2020 | 38 |
| 07-RC-257057 | Aramark Uniform & Career Apparel, LLC | 2/27/2020 | 11 |
| 07-RC-257074 | Faurecia | 2/27/2020 | 16 |
| 09-RC-257061 | Seemless Design & Printing LLC d/b/a Seemless Printing | 2/27/2020 | 4 |
| 10-RD-257071 | Altec Industries, Inc. | 2/27/2020 | 300 |
| 13-RC-257111 | Performing Arts at Metropolis d/b/a Metropolis Performing Arts Centre | 2/27/2020 | 2 |
| 15-RC-257053 | Oswalt’s Sewer Rooter & Plumbing Repair, LLC | 2/27/2020 | 4 |
| 15-RC-257099 | Dyncorp International, LLC | 2/27/2020 | 34 |
| 18-RC-256993 | Go Riteway Transportation Group | 2/27/2020 | 5 |
| 18-RC-257016 | Imperial Bag & Paper Co., LLC d/b/a Imperial Dade | 2/27/2020 | 2 |
| 28-RC-257076 | CoffeeMongers, Inc. d/b/a Humble Coffee | 2/27/2020 | 12 |
| 29-RC-257035 | Xtell Parking, LLC | 2/27/2020 | 8 |
| 31-RC-257073 | Dignity Health d/b/a Mercy Southwest Hospital/Mercy Hospital Downtown | 2/27/2020 | 10 |
| 03-RC-257153 | Vassar Brothers Medical Center | 2/28/2020 | 16 |
| 04-RC-257107 | Crozer-Chester Medical Center | 2/28/2020 | 82 |
| 07-RC-257156 | Indiana Michigan Power Company | 2/28/2020 | 37 |
| 12-RC-257137 | Moran Environmental Recovery, LLC | 2/28/2020 | 28 |
| 13-RC-257168 | NorthShore University HealthSystem d/b/a NorthShore Home and Hospice Services | 2/28/2020 | 75 |
| 13-RC-257174 | VH-M Rosemont, LLC d/b/a Marriott Suites O’Hare | 2/28/2020 | 30 |
| 16-RC-257188 | Don Miguel Mexican Food, Megamex–Hormel | 2/28/2020 | 500 |
| 18-RC-257127 | Milwaukee Repertory Theater, Inc. | 2/28/2020 | 6 |
| 19-RC-257179 | Fresenius Medical Care Montana, LLC | 2/28/2020 | 3 |
| 20-RC-257148 | California Forensic Medical Group | 2/28/2020 | 66 |
| 25-RC-257155 | Nestle USA, Inc. | 2/28/2020 | 106 |
| 27-RC-257173 | The Yerba Mate Co., LLC | 2/28/2020 | 12 |
| 28-RC-257243 | Southern Glazer’s Wine & Spirits | 2/28/2020 | 125 |
| 29-RC-257095 | Breaking Ground Housing Development Fund Corporation | 2/28/2020 | 10 |
| 31-RC-257230 | Sierra Transport, LLC | 2/28/2020 | 23 |
| 32-RC-257141 | Telecare Corporation d/b/a Willow Rock Center | 2/28/2020 | 9 |
| 01-RC-257215 | Kent County Visiting Nurse Association d/b/a VNA of Care New England | 3/2/2020 | 16 |
| 01-RC-257259 | VNA of Care New England | 3/2/2020 | 16 |
| 04-RC-257224 | The News Journal (Wilmington), a division of Gannett Satellite Information Network, LLC, a subsidiar | 3/2/2020 | 29 |
| 04-RC-257297 | Bynum Hospitality, Inc. | 3/2/2020 | 4 |
| 06-RC-257293 | Latrobe Specialty Metals Company, LLC | 3/2/2020 | 85 |
| 08-RC-257236 | Skylift, Inc. | 3/2/2020 | 50 |
| 12-RC-257326 | Host International, Inc. (HMS Host) | 3/2/2020 | 750 |
| 14-RC-257212 | Autohaus West, Inc. | 3/2/2020 | 13 |
| 15-RD-257239 | American Fuel Cell and Coated Fabrics Company d/b/a Amfuel | 3/2/2020 | 273 |
| 19-RC-257250 | Lourdes Hospital LLC d/b/a Lourdes Medical Center | 3/2/2020 | 100 |
| 20-RD-257265 | Wilcor Auto’s, Inc. dba Toyota of Vallejo | 3/2/2020 | 30 |
| 27-RC-257267 | Host International, Inc. d/b/a HMSHost, Inc. | 3/2/2020 | 245 |
| 01-RC-257349 | Element Materials Technologies Hartford, Inc. | 3/3/2020 | 74 |
| 01-RC-257363 | First Transit, Inc. | 3/3/2020 | 14 |
| 04-RD-257379 | West End Fire Company #3 | 3/3/2020 | 24 |
| 05-RC-257366 | Signature Theatre, Inc. | 3/3/2020 | 50 |
| 06-RC-257382 | Twinbrook Health & Rehabilitation Center | 3/3/2020 | 18 |
| 06-RC-257392 | Twinbrook Health & Rehabilitation Center | 3/3/2020 | 70 |
| 10-RD-257331 | Rainelle Center, LLC d/b/a Meadow Garden | 3/3/2020 | 54 |
| 21-RC-257335 | Audio Visual Services Group, LLC | 3/3/2020 | 20 |
| 28-RC-257369 | MV Transportation, Inc. | 3/3/2020 | 7 |
| 04-RM-257405 | Valley Forge Volunteer Fire Company d/b/a West End Fire Company No. 3 | 3/4/2020 | 24 |
| 06-RC-257435 | NAES Corporation | 3/4/2020 | 17 |
| 15-RC-257449 | PotlatchDeltic | 3/4/2020 | 154 |
| 21-RC-257498 | Spectrum Security Services, Inc. | 3/4/2020 | 93 |
| 25-RC-257451 | Irving Materials, Inc. | 3/4/2020 | 4 |
| 27-RC-257404 | Idaho Statesman Publishing, LLC d/b/a Idaho Statesman | 3/4/2020 | 16 |
| 27-RC-257463 | Triple Canopy, Inc. | 3/4/2020 | 212 |
| 29-RC-257409 | J. Pizzirusso Landscaping Corporation | 3/4/2020 | 14 |
| 01-RC-257458 | New England Treatment Access, LLC | 3/5/2020 | 146 |
| 01-RC-257461 | F & M Equipment, Ltd. | 3/5/2020 | 50 |
| 01-RD-257448 | Compass Group | 3/5/2020 | 49 |
| 08-RD-257467 | The Dover Tank and Plate Company | 3/5/2020 | 16 |
| 09-RC-257491 | Quickway Transportation, Inc. | 3/5/2020 | 77 |
| 19-RC-257499 | Kay & Associates, Inc. | 3/5/2020 | 30 |
| 19-RC-257543 | Metalfab Inc. | 3/5/2020 | 7 |
| 20-RM-257482 | Asplundh Tree Expert, LLC | 3/5/2020 | 17 |
| 22-RC-257460 | Planned Building Services, a part of and related to Planned Companies | 3/5/2020 | 6 |
| 01-RC-257565 | Bob’s Discount Furniture | 3/6/2020 | 13 |
| 02-RC-257605 | City Bar Justice Center | 3/6/2020 | 8 |
| 03-RC-257541 | Visiting Nursing Association of Western New York | 3/6/2020 | 4 |
| 03-RC-257555 | Visiting Nursing Association of Western New York | 3/6/2020 | 12 |
| 04-RC-257607 | Broad 600 LLC | 3/6/2020 | 3 |
| 10-RC-257531 | Appalachian Power Company | 3/6/2020 | 7 |
| 10-RC-257615 | MH Hospital Manager, LLC | 3/6/2020 | 1600 |
| 10-RD-257514 | Pepsi Beverages Company | 3/6/2020 | 47 |
| 12-RC-257536 | Range Generation Next, LLC | 3/6/2020 | 7 |
| 13-RC-257550 | Volvo PDC Joliet | 3/6/2020 | 51 |
| 14-RC-257594 | Johns Manville | 3/6/2020 | 178 |
| 19-RC-257661 | Sound | 3/6/2020 | 570 |
| 21-RC-257595 | Epsilon System Solutions, Inc. | 3/6/2020 | 4 |
| 32-RC-257578 | Audio Visual Services Group, LLC | 3/6/2020 | 11 |
| 01-RC-257633 | SDH Services East, LLC, also known as SODEXO | 3/9/2020 | 100 |
| 02-RC-257691 | Citizen 360 Condominium | 3/9/2020 | 8 |
| 02-RC-257861 | Greyhound | 3/9/2020 | 60 |
| 04-RC-257634 | Delaware Valley Residential Care, LLC | 3/9/2020 | 94 |
| 07-RC-257637 | Douglas Mechanical, LLC | 3/9/2020 | 7 |
| 07-RC-257674 | Live Nation Worldwide, Inc. | 3/9/2020 | 40 |
| 13-RC-257636 | Fontanini Foods, LLC | 3/9/2020 | 347 |
| 18-RC-257613 | Precision Land & Tree Clearing, LLC | 3/9/2020 | 4 |
| 22-RC-257627 | 565 Ridge Road, LLC d/b/a Waterview Center Services & Maintenance | 3/9/2020 | 4 |
| 28-RC-257762 | Taylor Farms | 3/9/2020 | 10 |
| 28-RC-257781 | New Mexico Gas Company | 3/9/2020 | 290 |
| 04-RC-257730 | The Washington Consulting Group, lnc. | 3/10/2020 | 4 |
| 04-RC-257746 | Inspira Medical Centers, Inc. | 3/10/2020 | 160 |
| 07-RD-257830 | Rieth-Riley Construction Co., Inc. | 3/10/2020 | 161 |
| 12-RC-257813 | Cemex Construction Materials Florida, LLC | 3/10/2020 | 37 |
| 13-RC-257718 | Refresh Club Inc, DBA: The Wing | 3/10/2020 | 18 |
| 18-RC-257776 | OT Training Solutions, LLC | 3/10/2020 | 3 |
| 22-RC-257724 | Planned Lifestyle Services, a part of and related to Planned Companies | 3/10/2020 | 5 |
| 22-RC-257765 | CORT Business Services Corporation | 3/10/2020 | 48 |
| 29-RC-257831 | Planned Building Services, Inc. and Planned Lifestyle Services, Inc., part of and related to Planne | 3/10/2020 | 6 |
| 01-RC-257843 | NSMC Healthcare, Inc. – Salem Hospital | 3/11/2020 | 1100 |
| 01-RC-257856 | Lincare, Inc. | 3/11/2020 | 11 |
| 01-RC-257875 | Hilton Garden Inn East Boston | 3/11/2020 | 32 |
| 03-RC-257840 | Kaleida Health | 3/11/2020 | 41 |
| 05-RC-257825 | Alliance for Justice | 3/11/2020 | 22 |
| 05-RC-257868 | Akima, LLC | 3/11/2020 | 5 |
| 05-RC-257876 | EMCOR Government Services, Inc. | 3/11/2020 | 5 |
| 05-RC-257895 | Akima, LLC | 3/11/2020 | 8 |
| 10-RC-257846 | Universal Protection Service, LLC d/b/a Allied Universal Security Services | 3/11/2020 | 70 |
| 12-RC-257857 | Morrison Management Specialists, Inc. d/b/a Morrison Healthcare | 3/11/2020 | 26 |
| 12-RC-257917 | Sea World of Florida, LLC | 3/11/2020 | 81 |
| 16-RC-257874 | Victory Wine Group, LLC | 3/11/2020 | 12 |
| 01-RC-257923 | Compass Group USA, Inc. d/b/a Chartwells School Dining Services | 3/12/2020 | 15 |
| 02-RC-258153 | Millennium Tower Residences | 3/12/2020 | 16 |
| 05-RC-257910 | Flynn Architectural Finishes LLC | 3/12/2020 | 28 |
| 06-RC-257937 | General Cable | 3/12/2020 | 171 |
| 13-RC-257879 | EPIC Academy | 3/12/2020 | 44 |
| 27-RC-257949 | DilIon Companies, LLC d/b/a King Soopers | 3/12/2020 | 5 |
| 28-RC-257985 | Kerberos International, Inc. | 3/12/2020 | 28 |
| 29-RC-257999 | New Visions Charter High School for the Humanities IV | 3/12/2020 | 40 |
| 01-RC-257982 | Mayflower Medicinals | 3/13/2020 | 32 |
| 08-RC-257944 | Sifco Industries, Inc. | 3/13/2020 | 97 |
| 08-RD-257948 | Scioto Services LLC | 3/13/2020 | 26 |
| 10-RC-258012 | Metropolitan Security Services, Inc. d/b/a Walden Security | 3/13/2020 | 21 |
| 19-RC-257993 | MPF Federal, LLC | 3/13/2020 | 19 |
| 19-RC-258041 | Anning-Johnson Company | 3/13/2020 | 24 |
| 20-RC-257991 | Dignity Community Care, and its subsidiary Saint Francis Memorial Hospital | 3/13/2020 | 17 |
| 20-RC-257995 | International Life Support, Inc. d/b/a American Medical Response | 3/13/2020 | 93 |
| 29-RM-257958 | Polmost Food Corp. d/b/a Associated Supermarkets | 3/13/2020 | 34 |
| 05-RC-258064 | Flynn Architectural Finishes, Inc. | 3/16/2020 | 28 |
| 10-RC-258073 | Workforce Resources, Inc. | 3/16/2020 | 20 |
| 14-RD-258026 | KETV | 3/16/2020 | 18 |
| 15-RC-258002 | Securitas Security Services U.S.A., Inc. | 3/16/2020 | 10 |
| 15-RC-258014 | MV Transportation, Inc | 3/16/2020 | 48 |
| 19-RC-258038 | Family Centered Services of Alaska | 3/16/2020 | 50 |
| 19-RC-258057 | Asplundh Tree Expert, LLC | 3/16/2020 | 1 |
| 32-RC-258050 | Browning-Ferris Industries of California, Inc. and International Disposal Corp. of California | 3/16/2020 | 6 |
| 03-RC-258061 | TCGplayer, Inc. | 3/17/2020 | 96 |
| 03-RC-258062 | Empire Merchants North, LLC | 3/17/2020 | 4 |
| 04-RC-258148 | Pike County Light & Power Company | 3/17/2020 | 8 |
| 10-RC-258074 | Lee BHM Corp d/b/a The Roanoke Times | 3/17/2020 | 53 |
| 13-RC-258090 | Hyatt Place O’Hare, LLC | 3/17/2020 | 7 |
| 19-RC-258144 | 2101 LLC d/b/a Intercontinental Truck Body | 3/17/2020 | 18 |
| 21-RC-258117 | Care Ambulance Service, Inc., d/b/a Falck USA, Inc. | 3/17/2020 | 1077 |
| 21-RD-258082 | Kaiser Permanente – Southern California Permanente Medical Group | 3/17/2020 | 413 |
| 18-RC-258165 | Alltech d/b/a Ridley | 3/18/2020 | 4 |
| 20-RC-258155 | Golden Gate Disposal and Recycling Company d/b/a Recology Golden Gate | 3/18/2020 | 6 |
| 21-RD-258174 | Southern California Permanente Medical Group and Kaiser Foundation Hospitals | 3/19/2020 | 413 |
| 29-RC-258178 | The Children’s Law Center, Inc. | 3/19/2020 | 53 |
| 32-RC-258278 | Ryder | 3/20/2020 | 33 |
| 02-RC-258334 | Safe Passage Project | 3/23/2020 | 26 |
| 07-RC-258307 | Ascension Providence Hospital | 3/23/2020 | 75 |
| 09-RC-258309 | DTSV, Inc. and Lockwood Hills Federal, Joint Employers | 3/23/2020 | 388 |
| 12-RC-258326 | MyCity Transportation, LLC | 3/23/2020 | 22 |
| 31-RM-258277 | Douglas Emmett Management, LLC/Douglas Emmett Management, Inc. | 3/23/2020 | 4 |
| 03-RC-258311 | Northern Dutchess Hospital | 3/24/2020 | 215 |
| 08-RC-258375 | Lyon Video, Inc. and Video Crew Service, LLC | 3/24/2020 | 105 |
| 05-RC-258395 | Elite Protective Services, Inc. | 3/25/2020 | 14 |
| 32-RC-258444 | Ryder Truck Rental, Inc. | 3/26/2020 | 33 |
| 06-RC-258518 | Harborcreek Youth Services | 3/27/2020 | 7 |
| 09-RM-258504 | New Lebanon SNF, LLC d/b/a Skld New Lebanon | 3/27/2020 | 58 |
| 22-RC-258529 | Planned Lifestyle Services, a part of and related to Planned Companies | 3/27/2020 | 6 |
| 32-RC-258519 | California Forensic Medical Group, Inc. (Wellpath) | 3/27/2020 | 98 |
| 04-RD-258626 | Lehigh Hanson Aggregates | 3/30/2020 | 8 |
| 22-RC-258533 | Planned Building Services and Planned Lifestyle Services, affiliated with Planned Companies | 3/30/2020 | 7 |
| 29-RC-258544 | Homyn Enterprises d/b/a Secure Wrap | 3/30/2020 | 50 |
| 18-RC-258607 | Ramsey Excavating Company d/b/a Ramsey Companies | 3/31/2020 | 9 |
| 18-RC-258635 | Abbott Northwestern Hospital | 3/31/2020 | 90 |
| Total workers: | 16,900 |
Source: Election petitions were obtained from the NLRB through FOIA requests NLRB-2020-000891 (submitted June 10, 2020, records released July 9, 2020).
Endnotes
1. S. REP. No. 79-1184, at 4 (1934).
2. As noted in McNicholas et al. 2020, by not requiring employers to make a compelling case that the proposed unit in the petition is unworkable, the law allows employers to gerrymander the bargaining unit by adding workers they think will vote against the union or removing those who support representation.
3. Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992).
4. For a recent example, see the DISH TV case study in Lafer and Loustaunau 2020.
5. National Labor Relations Board (NLRB), Representation-Case Procedures [request for information], 82 Fed. Reg. 58783-58790 (December 17, 2019).
6. AFL-CIO v. NLRB, Civ. No. 20-cv-0675 (D.D.C. 2020), available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0675-40.
7. Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966).
8. National Labor Relations Board (NLRB), Representation-Case Procedures: Voter List Contact Information; Absentee Ballots for Employees on Military Leave [proposed rule], 85 Fed. Reg. 45553-45568 (July 29, 2020).
9. Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019); Purple Communications, Inc., 361 NLRB 1050 (2014).
10. National Labor Relations Board (NLRB), Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships [final rule], 85 Fed. Reg. 18366-18400 (April 1, 2020).
11. The 1.2% refers to the share of cases in which employees voted to not have a union through a secret ballot election, even after showing they had a majority support during the voluntary recognition process. See 84 Fed. Reg. 39950 (August 12, 2019), citing Lamons Gasket, 357 NLRB at 742.
12. National Labor Relations Board (NLRB), Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships [final rule], 85 Fed. Reg. 18366-18400 (April 1, 2020).
13. 84 Fed. Reg. 69528 (December 18, 2019), fn 15.
References
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