Unions & Labor Law Reform Blog : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

Labor advocates often refer to recent union “studies” as support for labor law reform. These, as it turns out, “lack sufficient credibility and analytical vigor” to support their conclusions. This revelation is made in a newly-released White Paper, Responding to Union Rhetoric: The Reality of the American Workplace, published by the U.S. Chamber of Commerce. 

The Chamber notes the following:

1.       The pro-union “studies” are sponsored by biased organizations, like American Rights At Work, which received $2.3 million from the AFL-CIO and its affiliates in 2008;

2.       The pro-union authors of the “studies” receive money directly from unions, such as one who was paid $62,472 from the SEIU in 2005;

3.       The source of the “facts” used are almost exclusively from union organizations not exactly known for objectivity;

4.       The use of NLRB statistics by the proponents often are based on accusations and not findings established after evidentiary after hearings or trials;

5.       The “studies” ignore other, more credible, sources of objective information, such as Zogby and Rasmussen polls.

 For those truly interested in a factual basis to support or not support labor law changes, the Chamber’s White Paper is indispensible.

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In an earlier post, we told you that two of this blog’s authors, Michael J. Lotito and Harold R. Weinrich, were going to be present at the U.S. Chamber of Commerce Labor Relations Committee’s November 17 meeting, where NLRB Chairman Wilma Liebman was a scheduled speaker.  As promised, here is a firsthand report about Chairman Liebman’s comments.

Chairman Liebman told the group that a number of “significant issues” were on the agenda to be addressed by the new “Obama Board.”  This list included:

·         Revisiting the Dana Corporation case, relating to pre-recognition bargaining in the context of a neutrality agreement;

·         On remand of the New York, New York Hotel, LLC case,  dealing with, as the D.C. Circuit Court framed it, whether individuals working for a contractor on another’s premises should be considered employees of the property owner, thereby granting them access to the property owner’s premises;

·         Considering cases dealing with the issue of whether “bannering” constitutes unlawful picketing or protected “handbilling”; and

·         Revisiting the Hoffman Plastics case to address whether undocumented-alien employees, who are knowingly hired, should be entitled to back pay if they are unlawfully terminated by their employer for engaging in protected union activity.

Consistent with her comments at last week’s American Bar Association meeting, Chairman Liebman again indicated that the NLRB intends to make greater use of rulemaking.  Indeed, the Board has retained rulemaking experts to educate them regarding the intricacies of the process. Finally, the Chairman noted that a pending rulemaking petition regarding minority unions was of less concern to her than a petition, pending since 1993, asking the Board to adopt a rule requiring employers to post a notice in the workplace setting forth employee rights under the National Labor Relations Act.

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Imberman & DeForest, Inc. recently published a survey “Keeping the Workplace Union-Free.” The survey analyzes NLRB election data and offers several “findings” and “lessons” which should be helpful to our readers.  The survey is based not only on NLRB election data but also on interviews Imberman & DeForest conducted with key executives at 285 companies from the five “Great Lakes States” (Illinois, Indiana, Michigan, Ohio and Wisconsin).

The survey highlights two critical findings.  First, smaller companies lose a greater percentage of union elections than do larger ones.  Second, companies, regardless of size, which are subject to “stealth” union election petitions lose “a far higher percentage of their votes than do companies that were aware of pre-petition union organizing efforts.”

As the report indicates, the survey’s two findings “are critical,” especially in considering the “quickie” election component of the EFCA “compromise.”  The authors state that some of the compromise proposals call for “elections to be held within 5 to 10 days of a union petition.”  The authors argue such a short time frame “eliminates and/or severely restricts management’s ability to inform employees about the negatives of unions…,” making the “results of any such election [] preordained.”

Essentially, the authors argue that if “quickie” elections become law, then every election would become a stealth campaign, which, as we indicated, gives unions a significant advantage.

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In an op-ed article published in The Wall Street Journal, Matthew Kaminski related the latest development in the schism between Andy Stern’s Service Employees International Union (SEIU) affiliate United Healthcare Workers (UHW) and Sal Rosselli’s National Union of Healthcare Workers (NUHW). 

Mr. Kaminski discussed accusations that SEIU threatened workers with deportation and tampered with secret ballots during a June 2009 NLRB election in which the 10,000 home healthcare workers were to determine whether to continue to be represented by SEIU-UHW or whether to be represented by NUHW.  UHW ultimately won the election by a narrow margin. 

Nearly six months after the election, Carlos Martinez, who was an SEIU staff member during the June 2009 decertification election, has claimed, under oath, that he was instructed by his superiors to tell eligible voters that if they voted against the SEIU they could lose their medical benefits and have their green cards revoked (possibly leading to deportation).  Mr. Martinez also claimed he was told to fill out ballots for voters, take the ballots to the post office and pressure voters to spoil ballots already filled out for NUHW.  Mr. Martinez also alleged he and other SEIU staff members visited eligible voters in their homes (he visited 550) to coerce voters to select SEIU.  Mr. Martinez said, “We scared people.  We took the secret ballot away from these people…. [I]t was wrong.”

Mr. Martinez, who said he now “fears for his safety,” claimed he raised concerns with his superiors that the alleged orders were to engage in misconduct and he submitted a complaint to two state agencies, but “was ignored.”  He noted, “Six other []workers confirmed parts of his account in affidavits.”

Finally, Mr. Kaminski said, “Whatever the truth, these scuffles eat up resources and deprive a divided labor movement of a strong leader to push its legislative priorities — most of all, the ‘card check’ bill….”  However, Mr. Kaminski feels “Congress might want to think instead how to better protect people from desperate unions and safeguard their right to choose which [union], if any, they might wish to join.”  We couldn’t agree more.

These allegations are perfect examples of why “card check” and mail ballots are inherently unreliable mechanisms for determining employee support for unions. Under “card check” and mail ballots, employees are subjected to the types of misconduct Mr. Martinez claimed he and other union staff members employed.

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As we reported in “With EFCA ‘Reform’ on Hold in Congress, Unions Turn to State Legislatures for Labor Law Change,” Kris Maher wrote an article discussing the signing into law of the “Worker Freedom Act” in Oregon, which prohibits employers from holding mandatory meetings with employees to discuss union organizing.  In Washington state, Oregon’s neighbor to the North, a similar bill, the “Worker Privacy Act” has been proposed.  This bill was gaining momentum towards passage until an e-mail chain from Jeff Johnson, Special Assistant to the President Washington State Labor Council, AFL-CIO was leaked.  In this e-mail, Mr. Johnson stated, “Union leaders would send a message to the State Democratic party and to the Truman and Roosevelt funds from the House and Senate that ‘not another dime from labor’ until the Governor signs the Worker Privacy Act.”

In his article, Maher stated that once the e-mail was leaked to Washington State lawmakers they dropped the bill on the grounds that the e-mail raised “legal and ethical questions.”

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In his article, “Unions Push Issues in State Capitals,” published in The Wall Street Journal, Kris Maher discusses organized labor’s attempt to effect labor law change in state legislatures while pursuing a similar goal nationally in Congress.

Mr. Maher focuses on the Worker Freedom Act passed by the Oregon Legislature and signed into law this past June, which is scheduled to take effect in January 2010.  The Oregon law in effect would prohibit employers from holding mandatory meetings with employees for the purpose of discussing employees’ right to organize.

Not only is there a very strong argument that this law is pre-empted by federal labor law, but as J.L. Wilson, Vice President of Government Affairs for Associated Oregon Industries, is quoted in the article, “[i]t completely undermines employer free speech.”  Associated Oregon Industries, with the assistance of Jackson Lewis LLP, plans on filing a lawsuit challenging the new law on those constitutional grounds.  Attorneys at Jackson Lewis challenged a similar law passed in California based on the ground that it, too, unlawfully violated an employer’s right to free speech.  The U.S. Supreme Court ultimately agreed with our argument, and the law was struck down.

Mr. Maher correctly notes that while bills similar to the Oregon law also were proposed in Connecticut and Michigan, both of those failed to become law, making Oregon the first state to enact such a law.

The Oregon law and attempts in other states to pass similar bills are alarming.  Patrick Semmens of the National Right to Work Legal Defense Foundation stated that the Oregon law is “a step close toward card check.”  Director of Legislative Affairs for the AFL-CIO, William Samuel stated, “While Congress is still debating the federal legislation, we think it’s important to move ahead in states where it’s possible to take action.”

State law initiatives by organized labor must not be overlooked despite the attention on EFCA.

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In an article posted today, Susan J. McGolrick, a writer for the Daily Labor Report (subscription required), recounted some highlights from Chairman Wilma Liebman’s comments at the November 5th American Bar Association Section of Labor and Employment Law’s annual meeting.  

Chairman Liebman said she felt “very privileged” to be chairman of the NLRB at a “historic time” when “we’re poised for changes” in Labor Law.  She commented on the United States Supreme Court’s decision to take a case challenging the NLRB’s authority to act with only two members, something the Board has been doing for the past 22 months.  Liebman noted that of the 538 Board rulings issued during that time, only 77 of them have been appealed to U.S. Circuit Courts challenging the Board’s authority to render a decision.  In terms of an anticipated decision of the United States Supreme Court, Liebman stated, “If we lose, we’ll have to decide what to do, but we’re hopeful we’ll win.”

Chairman Liebman argued that Congressional inaction has fostered “deep divisions” and “controversy” in labor law and has “facilitated” the NLRB’s “flip-flopping” and “policy oscillation.”  She stated that she believes it is better to have “periodic legislative change” to account for an ever-changing workforce, as opposed to relying on Board decisions to do the same thing.  Liebman declared that she is happy with the current debate over labor law issues in Congress, especially after “decades of silence” — a reference to the fact that Congress’ last major overhaul of the National Labor Relations Act, the nation’s principal labor law, took place in 1947.

Chairman Liebman indicated that once the NLRB has a full complement of five members, she wants to “give some thought to” something the NLRB has not done since the 1980s: rulemaking.  She said rulemaking may be especially helpful in representation cases.

Next week Chairman Liebman will be speaking at the U.S. Chamber of Commerce Labor Committee meeting.  We are members of this committee and two of this Blog’s authors will be there. 

Stay tuned for a first-hand report.

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Yesterday, LaborUnionReport.com posted an article about a “leaked” internal document, “Language Tips on Employee Free Choice,” from the Service Employees International Union (SEIU).

The document shines a light on some of the machinations the SEIU intends to use to make up for the weakness seen in its arguments for the passage of EFCA … we mean the so-called Employee Free Choice Act.  It shows how the Union intends to use rhetoric and “doublespeak” to convince the unwary of the need for Congress to enact its pet bill. 

Some of our personal favorites:

1) Don’t call businesses “Employers”; instead, call them “Big corporations” or “corporate CEOs” or “corporations” or “companies; and

2) Don’t say SEIU or labor “is behind this bill”; rather, say “workers” or “working people” or “working families” are urging the passage of the bill.

The SEIU apparently thinks smoke and mirrors are a substitute for sound arguments.  Let’s hope the Union is wrong.

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The announcement by the National Mediation Board (NMB) on November 3 of a proposed reinterpretation of the Railway Labor Act (RLA) to make it easier for unions to organize may be a harbinger for EFCA, as well. Rather than ask Congress to amend the 75-year-old RLA or follow normal rulemaking procedures, the new, two-person pro-labor majority at NMB (both members are former union officials) proposed the dramatic change by “administrative fiat.” Should EFCA fail in the Senate, we may see the NLRB adopting the same activist approach in the Labor Board elections it administers.

Section 2, Fourth, of the RLA provides “t[he] majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class….” The Supreme Court in Virginian Railways Co. v. System Fed’n, 300 U.S. 515 (1937), stated that the statute “confer[s] the right of determination upon a majority of those eligible to vote” (not a majority of the voters), but is silent as the manner in which that right shall be exercised. The new NMB, however, ignoring 75 years of experience, now proposes to reinterpret the Act and disregard the Supreme Court. It argues that “a majority of those eligible to vote” does not mean what it says, but rather means that only a majority of those voting could decide an RLA election. Thus, only a minority of those eligible to vote could win the day for a union. Does this sound Orwellian?

Let’s take this one step further. Why not dispense with an election altogether? The RLA does not actually compel an election. NMB can use “an election or employ any other appropriate method” for determining majority representation. And, unlike the NLRA, which allows an employer to insist on an election, no such right exists under the RLA. Therefore, the NMB could allow an EFCA-style card check, followed by an EFCA-style bargaining order. 

This possibility is not farfetched. Currently, the NMB does not use a traditional ballot.The ballot it uses does NOT have a box to check that says “No Union”. There is only a “Yes” box. Of course, with the requirement that a majority of eligible voters affirmatively select a bargaining representative, there is no need for an employee to vote “no.”   To oppose union representation, the employee simply need not vote.  That will change if the NMB proposal is adopted.

For logistical reasons involving often widespread electorates, the NMB never uses a voting booth. It uses a mail ballot-type procedure … which of course opens the possibility that ballots can be cast in the presence of a union representative … a critical deficiency also found in the original EFCA proposal. With changes in technology, the NMB now allows voting by telephone and the Internet. Can the NLRB be far behind? And what if an RLA employee no longer wishes to be represented by a union? He is out of luck. There is no procedure for decertification under the RLA.

Critics of the current NMB procedure claim it is unfair to require a majority of employees to vote in favor of union representation. But those same people do not complain that it takes a majority of the employees to de-authorize a union under the NLRA. Is there anything inconsistent there?

Agency members with an activist agenda, whether at the NMB or the NLRB, can craft arguments to avoid clear statutory language, Supreme Court decisions and 75 years of precedent. If these proposed rules are successfully implemented by the NMB, the NLRB may follow suit quickly. Hurry-up ambush elections, union access to company property, equal time at captive audience meetings, access to employee names and addresses before a petition is filed, access to company bulletin boards or Internet — all of this can be accomplished by administrative fiat, rulemaking or decisions without EFCA.

Related Link -Dougherty - Full NMB Dissent

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"EFCA" is not just an abbreviation for the Employee Free Choice Act. In a larger sense, it stands for a dramatic shift in our nation's labor relations policy that the Obama Administration has begun implementing.

The most recent example of this shift is the proposed change in the procedure for selecting union representation under the Railway Labor Act, the labor statute that covers airline and railroad workers. For more than 75 years this law has required that a majority of eligible workers vote affirmatively for union representation before a union is entitled to bargaining rights. This process has worked well. In fact, union representation in the railroad and aviation industries far exceeds union representation in other private industry.  

Under a rule proposed by the current, labor-dominated, National Mediation Board, however, the long-standing rule would be eliminated. A new rule allowing a minority of the eligible employees to decide the issue would replace it. Representation would be determined by a majority of those voting rather than by a majority of eligible voters.

So why change a system that is working? It’s simple. The unions are attacking long-standing policies and procedures to make their selection easier.  Even though the National Mediation Board repeatedly has rejected union efforts to change the way elections in these industries are conducted, it looks like the labor movement has found a pivotal new friend at the Mediation Board. If adopted, and if it withstands the substantial legal challenges that are anticipated, a small minority of eligible employees will be able to make the decision for the entire group. Mediation Board rules already make voting for unionization very simple -- by allowing telephone and Internet voting. Under the proposed new rules, employees will no longer be able to vote “no” by “ripping up” their ballots and unions need worry less about appealing to the entire workforce. They will not have to prove an absolute majority of employees wants representation. As long as more employees vote yes than no, even if only a small percentage of the workforce may actually vote, that will do.

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With a clear conflict among the federal Circuit Courts and with the National Labor Relations Board and employers calling to have the Board quorum issue settled, the United States Supreme Court has agreed to decide whether the NLRB is authorized to render decisions while three of its five seats remain vacant.  The Court granted certiorari to the Board’s September 29 request to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the Board previously delegated its full powers to a three-member group that included the two remaining members. 

The Court said it would review the Seventh Circuit’s decision in New Process Steel v. NLRB (No. 08-3517, 7th Cir. May 1, 2009) (where, this May, the Court held that the Board had such authority) in a brief order issued November 2. A petition for certiorari is still pending in Laurel Baye Healthcare v. NLRB (No. 08-1214, D.C. Cir. May 1, 2009) (where, also this May, the District of Columbia Circuit held that the Board lacked such authority), as well as in two other cases, from the Second Circuit and the First Circuit, both of which sustained the Board’s position, albeit on somewhat different grounds from the New Process Steel decision. Snell Island SNF v. NLRB (No. 08-3822/08-4336, 2d Cir., June 17, 2009) and Northeastern Land Svcs. v. NLRB (No. 08-1878, 1^st Cir., Mar. 13, 2009). A ruling on the petition in Laurel Baye is expected shortly.

The dispute concerns the meaning of a provision in the National Labor Relations Act creating the NLRB. It provides, in part, that the NLRB: 

is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.

29 U.S.C. § 153(b).

Since January 2008, the Board has been functioning with only two members — Chairman Wilma Liebman and Member Peter Schaumber. In December 2007, when the Board still had four members (with two recess appointments about to expire), it delegated its powers to a three-member panel. When Board membership shrank to two, the agency said the NLRA allowed it to continue operation. The two-member Board is estimated to have issued more than 400 decisions in the nearly two years it has been operating.

President Barack Obama has nominated three candidatesto fill the empty seats on the Board:  two labor-side attorneys, Craig Becker and Mark Gaston Pearce, and the current Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), Brian Hayes. These nominees have cleared the HELP Committee but one or more Senator’s have placed holds on Mr. Becker’s controversial nomination. These Senatorial holds will delay the nominations from reaching the Senate floor for a confirmation vote.

The Supreme Court’s decision in New Process Steel is expected next Spring. 

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Last week we told you that “Organized Labor certainly has the ‘ear’ of this Administration.”  We didn’t know how right we were.

On Friday, the Obama Administration published a partial list of visitors who have visited the White House.  Andy Stern, President of Service Employees International Union (SEIU), visited 22 times, more than any other single individual on the list.   Additionally, newly-elected President of the AFL-CIO, Richard Trumka, visited 7 times.

There is no doubt that Vice President Biden meant it when he said to a group of Labor leaders only 10 days after President Obama’s inauguration “Welcome back to the White House!”

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