Oliver J. Bell Statement to the National Labor Relations Board (NLRB)
STATEMENT OF OLIVER J.BELL
CEO, OLIVER BELL, INC
FOUNDER TEXAS LABOR & EMPLOYEE RELATIONS CONSORTIUM
REGARDING PROPOSED CHANGES TO
THE NATIONAL LABOR RELATIONS BOARD’S
REPRESENTATION ELECTION PROCESS (RIN 3142-AA08)
July 18, 2011
Good morning Chairman Liebman, Members of the Board, guests from organized labor, employers, trade associations and most of all employees present or viewing via webcast who have the most at stake in this process.
Thank you for allowing me the opportunity to share my perspective with you.
My name is Oliver Bell. I am from Austin, Texas and I am the CEO of Oliver Bell, Inc., and founder of the Texas Labor & Employee Relations Consortium. As a non-attorney practitioner of human resources, labor relations and positive employee relations strategies, I believe I have a valuable and relevant perspective on the proposed rules.
Oliver Bell, Inc is a labor relations consulting firm offering advice to employers who have the goal of improving the overall work environment. Our clients include union and nonunion employers who seek to provide attractive wages and benefits, educate employees about their business, and remain competitive in the market so that the company and employees enjoy a secure future. The Consortium includes senior leaders in operations, human resources and labor relations who want to stay abreast of work place trends and implement best practices in leadership, conflict resolution, communication, change management, immigration, wages and benefits and the like.
Why is this constituency concerned about the proposed rule changes?
They are interested in these changes because it affects their employees. Many have indicated that regardless of whatever political pressure exists, the NLRB should resist indulging the special interests of employers, unions or academia. Most employers understand that it is the NLRB’s duty to protect the rights of employees to make a free choice regarding representation and think it proper that the Board would encourage an election process in which employees have sufficient time to hear and process relevant information prior to taking the opportunity to vote their conscience.
Should any of the Board rules regarding the election process be changed?
In reviewing the Board’s election rule and regulations fact sheet, at first look one might think, there is not much to it. Why be concerned? Change away! A closer look reveals a proposal for genuine process improvement in some areas and changes that reflect a fundamental shift away from protecting employee rights in other areas. The latter begs the question whether the changes in fact give in to special interests.
Let’s take a quick look recent Board performance:
For FY 2010, the Agency General Counsel summarized the following:
- The case intake for 2010 was up 10% from 2009 (3,204 versus 2,912)
- Over 95% of all initial elections were conducted within 56 days of filing.
- Initial elections were conducted within a median of 38 days from filing
- The average time to election was 31 days.
- 92% of the petitions had voluntary election agreements
- Over 86% of all elections closed in 100 days (exceeding the 85% performance measure)
- Regional Directors are doing an overall exceptional job and exceeding standards in pre-election decisions hearing time frames (37 days actual vs. 45 day target), post election hearings occur within70 days below the 80 day target), and supplemental report time frames are also better than target (22 day actual versus 32 day target).
This performance evaluation would indicate that the current process is running well, so it raises the question of why change? Unfortunately, the answer seems to be to give into special interests - in this case organized labor.
So now, with this background, I’ll get back to focusing on the proposed rules in a question and answer format.
1. Do the rules protect and support employees in the election environment or do they create a questionable and potentially unstable environment where employees must make an important personal and work life decision?
- On NLRB Form 707, The Notice of Election, it is clearly stated that the Board wants all employees to be fully informed about their rights under federal law and wants unions and employers to know what is expected of them in an election. Even the federally published Guide to the NLRA states that the purpose of creating a layman’s guide was to ensure that all parties understand their rights and obligations under law.
- During representation cases, we encourage employees to the use of all possible sources of relevant information including radio, TV, print media, the internet web (especially government agency and union websites), and to attend company meetings and union meetings to get information. An employee who has access to information can make an informed decision, (for or against unionization) that they feel is in their best interest.
- The challenge unions have today is that even though they win a majority of contested elections, often when employees have access to information, they tend to back away from unions before an election can be called. That is not an NLRB problem. That is a union problem. It is a challenge in communicating the value proposition of unionization. It is not an election process problem.
2. Does a shortened election cycle provide employees a more democratic process or create a reckless process?
- I submit it will create a reckless, harried process. In the last several weeks, the term “ambush election” has come into vogue in reference to the proposed rules. This so-called “ambush election” is defined as a contrived election process in which organized labor is provided an unfair advantage via the opportunity to call for an election in a drastically reduce time cycle that limits opportunity for anyone else involved to discuss relevant issues. The intent may be to ambush employers however the reality is that it is employees who are short changed in the process.
3. Is the election process itself broken? Has the NLRB had issues managing elections? This is a meaningful point which begs the question why the proposed changes.
- No. the NLRB runs an excellent election process. There are virtually no instances of voter fraud. The Board allows the parties involved to have polling place observers, tries to make voting convenient for employees by arranging for worksite voting during working hours, does not deny anyone the opportunity to vote and has a clean process for challenging questionable voters who show up at the polling place.
- Moreover, for the past couple of years, unions have won better than two thirds of contested elections – clearly suggesting that no shifting of rules in their favor is warranted to counteract any current employer advantage.
- A review of outcome trends for ULPs supports the same conclusion:
| Unfair Labor Practice Charges | % of total | Filed | Notes |
| Total filed FY 2010 | 100% | 23,509 | |
| 73.3% resolved in 120 days | 73.30% | 17, 232 | |
| 64.4% dismissed or withdrawn | 64.40% | 15,140 | |
| 95.8% of meritorious cases settled | 34.10% | 8,018 Merit & settled | |
| Meritorious cases that went to hearing | 1.5% of total | 351 Merit and Hearing | |
| From NLRB Presentation – (9 June 2011) |
4. Does eliminating the requirement to define the appropriate voting unit in advance of the election improve or diminish voter’s realistic understanding of their potential association?
- It clearly diminishes. It is potentially very confusing because employees do not know what work group they are associated with until after the vote. They do not know how much common interest there is on issue of concern or how much divergent interest. Knowing or not knowing this can impact individual choice.
In Closing:
The proposed rule changes will not result in greater rights and protections for employees. They would in fact result in lesser employee protections and will only favor unions thereby creating a process that is flawed by design. The Board mission is not to advocate for or against unionization but to advocate for a process that allows employees to make a choice free from intimidation and coercion. This should also include free from process manipulation. By your own internal assessments, you are delivering on this mission beyond expectations.
- Having a union is no guarantee of a great work life. Nor is not having a union. But current private sector employees have sent a clear message. Only 1 in 14 employees is in a union. They don’t get the value proposition. In the age we live in, all employees are business people, individually looking for the best deal. What is best is defined by the individual employee. Some employees look at wages, some at benefits, some at schedules, some at work life balance, some look at advancement opportunity, some look at workplace diversity. The good deal employees are looking for may have everything to do with having a union or nothing to do with it. Because private sector employees are showing little interests in unions, some interests group in academia and labor have strongly suggested the changes proposed. These changes have not originated in the hearts and minds of the employees the Board is to protect.
I encourage expanding this inquiry before making your decision. Two days of comment is not enough time to air the issues on a decision that will affect a hundred million employees. Expanding this comment and information gathering process to allow employees, the public, and professional associations (business, labor and academia) who have interest in this process to comment on the proposed changes would be a very a positive step.
I look forward to learning of your final decision.
Thank you for allowing me to speak to you today. I would be happy to take any questions.
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