In today’s news and commentary: the Biden NLRB proposes changes to its decertification rules; Ontario education workers plan to strike in the face of legislation threatening fines of $4,000 a day per worker; Illinois voters gear up for a constitutional amendment to ban right-to-work laws in the state.
In big NLRB news, the Board issued a notice of proposed rulemaking yesterday changing the rules around decertification procedures in three substantial ways, and in so doing depart from a 2020 rule issued by the Trump Board. First, the rule allows for the delay of decertification elections where unions accuse employers of unfair labor practices that have the potential of tainting the election process. Though regional directors previously had the ability to delay elections in such instances, the 2020 rule required that regional directors “immediately open and count the ballots, except in a limited subset of cases.” Second, the new rule would revert back to the 2011 standard from Lamons Gasket Co., 357 NLRB 934 on the voluntary recognition doctrine, which in turn had overruled Dana Corp., 351 NLRB 434(2007)’s 45-day window after a union is certified through voluntary card check recognition in which employees can petition to decertify the union. Thus, the NLRB’s proposed rule would once again remove this 45-day decertification window for such voluntary recognition cases. Third, for construction cases, the rule would bring back Casale Industries, 311 NLRB 951 (1993), which barred challenges to the union’s majority representation status in the construction industry when 6 months have passed following union recognition; it would also revert back to Staunton Fuel & Material, 335 NLRB 717 (2001) which makes it easier for unions in the construction industry to prove majority support.
Today, education support staff workers in Ontario, Canada are scheduled to go on strike despite provincial legislation passed this week outlawing their right to do so. The workers, represented by the Canadian Union of Public Employees (CUPE), include educational assistants, administrative staff, custodians, and librarians. The bill passed earlier this week imposes a “draconian” fine of $4,000 CAD ($2,900 USD) per striking worker and unilaterally implements the wages and terms and conditions of employment from the provincial government’s last offer in bargaining with the union. Despite the enshrinement of the right to strike in Canadian constitutional law, the Ontario government took advantage of the Canadian Charter’s “notwithstanding clause,” which allows Charter-violating Acts of a provincial government to operate for up to five years “notwithstanding a provision included in” some of the other rights-affirming portions of the Charter, including the freedom of association (Section 2 of the Charter) from which the right to strike has been extrapolated. CUPE announced that it would continue with its strike regardless, with a union official announcing that they “are on strike until this government recognizes that you can put in all of the legislation in place, but you cannot control a worker movement that is so fed up with your overreach.”
As Sarah reported last week, voters in the state of Illinois are getting ready to vote on the “Workers’ Rights Amendment,” an amendment to the constitution passed by the Illinois legislature and now brought to the voters for ratification. The amendment would constitutionally prohibit right-to-work legislation—that is, it would “prevent legislators from passing laws that bar unions from collecting dues or fees from nonmembers covered by their contracts.” If passed, it would be the first time that a U.S. state’s constitution bans right-to-work laws. The Illinois amendment also provides for a ”fundamental right to organize and to bargain collectively.” Meanwhile, Tennessee will be deciding whether to do the opposite: to codify its right-to-work laws in its state constitution. Currently, right to work laws are present in 27 states.