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The employees at U.S. Brick in Mooresville, Indiana, have had enough of the Teamsters union. They made that clear with a union “disaffection” petition, signed by more than two-thirds of the workforce.
The National Labor Relations Act gives workers the right to request a union decertification election to remove a union from their workplace, but only under certain conditions.
Those conditions are under the control of the National Labor Relations Board, a five-member board that “enforces” federal labor policy, allegedly to protect workers in the private sector.
Over the years, the NLRB has created its own internal policies and bureaucratic rules that restrict decertification well beyond what is required by federal law.
But one should never assume the wishes of employees mean anything to federal bureaucrats, especially if the employees want to get rid of union representation.
That brings us back to Mooresville and a labor law case study that comes with a “you can’t make this up” lesson to it.
For years, the workers at U.S. Brick were blocked from having a union decertification vote because the NLRB-created “contract bar” policy that says after union officials sign a bargaining contract with an employer, the NLRB won’t even consider allowing a decertification election for as long as three years.
This explains why union bosses push for contracts that expire in exactly three years. They create a “thread-the-needle” 30-day window for workers to attempt a union decertification before a new contract takes effect and immediately blocks any vote from being held for the next three years.
The Teamsters’ contract at the Mooresville facility expired late last year, but the workers’ opportunity to request a vote to remove the Teamsters quickly vanished.
Enter the Department of Justice. The Mooresville facility’s former owner was undergoing a merger and had to sell the facility to U.S. Brick to settle DOJ antitrust concerns. That government-forced sale triggered yet another NLRB-created election bar, the “successor bar,” which prevents the removal of an unwanted union for a year after ownership changes.
Now, events triggered by the Department of Justice, which U.S. Brick’s workers could not control or even foresee, could prevent them from voting for another three years if the Teamsters can get a new contract in place before the expiration of the one-year successor bar.
The NLRB explains all of this as necessary in the name of “industrial stability.” It’s clear, however, that the NLRB is not seeking any “stability” in how frequently workers get the opportunity to dismiss monopoly union representation through decertification. Nor are they trying to accommodate workers’ desire for “stability” in their relations with their employer, since decertifications only ever happen when enough workers demand it.
The one group for whom the NLRB’s policies do create “stability” is union bosses. By erecting extra barriers to decertification that are not actually in the text of the National Labor Relations Act, the NLRB protects union officials’ job security by shielding them from accountability to workers.
Ideally, workers would not have to go through the NLRB at all. They would be able to choose freely whether to associate with a union as individuals. In Indiana and the 26 other right-to-work states, the financial component of that freedom is protected; no worker can be compelled to pay dues or fees to a union they do not support. But federal law still lets union officials in all 50 states sign monopoly union contracts that apply even to nonmember employees who oppose the union.
Union officials have the extraordinary power to force workers to accept their “representation.” The NLRB should be working to ensure that workers have the ability to hold union officials accountable. Instead, the NLRB protects the forced unionism privilege union bosses enjoy by snuffing out challenges brought by the very workers whom union officials claim to “represent.”
More states should pass right to work laws so that union officials at least cannot profit from sticking around where they are not wanted. Situations such as the one at U.S. Brick are what we can expect as long as the Biden NLRB continues to prop up and expand policies that entrench union bosses at the expense of workers’ rights.
Mark Mix is president of the National Right to Work Legal Defense Foundation.
