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

Under its current arbitration deferral policy, the National Labor Relations Board, to encourage collectively bargained dispute resolution, would defer a final determination in certain unfair labor practice (“ULP”) charges when the grievance can be processed through the parties’ grievance or arbitration provisions under their collective bargaining agreement (“CBA”).  The Board’s Acting General Counsel has urged the Board to change its arbitration deferral policy, claiming it is “overly deferential” and not sufficient to protect employees’ organizing and collective bargaining rights under Section 7 of the National Labor Relations Act.
 
In his January 20th memo (GC 11-05), Acting General Counsel Lafe E. Solomon would require employers (as the presumed proponents of deferral to an award) to show the CBA had the Section 7 statutory rights incorporated in it or that the parties submitted the statutory issue to the arbitrator AND the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issues.

If the employer clears those hurdles, it will still have to show it is not “clearly repugnant” to the NLRA, i.e., the result is not palpably wrong or susceptible to an interpretation inconsistent with the Act.
 
Solomon’s new principle also would be implicated in NLRB approvals of pre-arbitration grievance settlements in certain ULP cases (the parties must have intended to settle the ULP charge as well as the contractual grievance).  The NLRB regional offices are directed to investigate the ULP charge, at least to the extent of taking affidavits from the charging party (“CP”) and the CP’s witnesses, and to determine whether the charge has “arguable merit” before deferring to an arbitrator.  When the award is issued, and a party urges deferral to it, the Regional Office is to examine whether the proponent has satisfied the three new criteria, make its determination, and submit the case to the agency’s Division of Advice.

Of course, if the arbitrator upholds the grievance, directs reinstatement and full back pay, and the CP requests withdrawal of the charge, the request can be approved.  If the CP refuses to withdraw, the case still will go to the agency’s Division of Advice.

Now that the NLRB regional offices will dissect arbitration awards regularly, will the unions be filing ULP charges with every discharge grievance?

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Additional contributors:  Philip Rosen and Richard Greenberg, partners in our New York City office.

Wrestling with some dismal data on the waning strength of America’s organized labor, Secretary of Labor Hilda L. Solis tried to make the best of it.  She said in her January 21st press release that the data showed the need for workers to unionize. 

The Bureau of Labor Statistics reported on January 21 that the unionization rate of employed wage and salary workers dropped noticeably last year.  For 2010, the agency announced, the rate nationwide fell to 11.9 percent overall, from 12.3 percent in 2009.  In the private sector, the news was no better.  The rate there dropped to 6.9 percent, from 7.2 the year before.  There are 16.9 million workers in jobs covered by collective bargaining agreements, BLS reported, but 1.6 million of them indicated no union membership.  Half of the 14.7 million union members lived in just six states: California, New York, Illinois, Pennsylvania, Ohio and New Jersey.  The highest unionization rates were in education, training and library occupations.  It is hard to imagine that half a century ago unions represented a third or more of America’s workforce.

But citing weekly wage differentials between union workers and non-union workers, the Administration’s chief (organized) labor advocate said that union jobs, with better benefits and pay, were central to restoring the middle class.  Thus, the Secretary said, protecting the right to organize and bargain collectively was especially important to our economic recovery.

We wouldn’t count on a resurgence of union representation to fuel the engine of America’s recovery and job growth.   If unions were so attractive, why are the BLS numbers so bleak?  The recession took its toll on union jobs, as well as others.  Unions could not prevent sizable layoffs in their members’ ranks and have not led the way back from high unemployment.  They stand little chance of doing so, we think. 

Despite the Secretary’s opinion, and the tinkering of a pro-union National Labor Relations Board trying to tilt the legal playing field in organized labor’s favor, America’s workers generally have shown little interest in casting their lot with the “fraternally yours” crowd.  Perhaps a better educated, mobile, electronically oriented, and diverse workforce no longer sees as much value in traditional union representation — at least not enough to offset the cost in dollars and individual opportunity.  And perhaps the Secretary’s generalizations on union workers’ compensation are too much influenced by the large contingent of public-sector union workers in the total mix and the shrinking clusters of union-dominated private-sector jobs.  Employee free choice on union representation must be defended.  Saddling America’s workers with unions they do not want to fulfill the Administration’s vision for economic reengineering, however, is ill-conceived.

Jobs with good wages and benefits are worth achieving.  No one denies it.  But unless these jobs are competitive, productive, and efficiently performed, and unless they reward individual achievement, they cannot last in today’s global economy.  The President may have come to that realization as he seeks to reassure small business and corporate executives that he intends to rein in government regulation in order to create a climate conducive to growth and job creation.  Unions have yet to show America’s workers they understand that need, too.

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The National Labor Relations Board’s union-boosting has taken a new and troubling turn…repudiating the will of voters who would make unions show by secret ballot that they really represent employees.

The NLRB has threatened four states, whose voters passed initiatives last year barring employers from recognizing unions except following a secret ballot election, with lawsuits claiming the state measure are preempted by the National Labor Relations Act.  The Board’s Acting General Counsel, Lafe E. Solomon, on behalf of the agency, on January 13 notified the attorneys general of Arizona, South Carolina, South Dakota, and Utah that the measures would run afoul of the federal statute’s preemptive authority in the field of labor relations.  Solomon opined, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the amendments create] an actual conflict with private sector employees’ Section 7 [NLRA] right to representatives of their own choosing.”  Expressing concern that employers, under pressure from state law, might refuse to recognize — or withdraw recognition from — unions “lacking an election victory,” or that represented employees might bring actions under the new requirements against such unions and their employers asserting violations of state constitutional rights, Solomon asked the attorneys general to consent to a judicially approved stipulation that the measures are unconstitutional.  He has given the states two weeks to respond.  After that, he said, he will file suit.

This latest step by the pro-union agency is both unsurprising and unsettling.  The state ballot measures were intended to head off the “card-check” provisions of the Employee Free Choice Act (EFCA).  Little wonder, then, that this Board, seemingly with the goal of achieving the unfulfilled “promise” of EFCA, should attack these initiatives head on.  Unions would have to earn representation by secret ballot.  Goodness! How could employees ever be expected to vote for a union after their employer weighed in on the issues?

So much for faith in democracy.

The Board views its mission as one to revive and expand unionism. From its members’ perspective (most of them, anyway) no straight-thinking employee ever could oppose unionization.  And so, it proposes to sweep away “obstacles” to representation that most citizens agree are necessary to assure employee free choice. 

The Board is mistaken.  Its proper role is to act as a referee, not a booster — to allow employees to choose union representation, or not to choose it, as they see fit, under conditions that foster free expression of an informed choice.  Allowing workers to cast a secret ballot in government-supervised election is the best way to do that.

Are we too harsh?  Double standards aren’t pretty.  When states limit union organizing the Board attacks them, but when a state restricts employers from communicating with employees about unions, the NLRB is missing, even though federal preemption concerns are at least as worrisome.   Consider a 2009 Oregon law.  It prohibits employers from taking action against employees who refuse to attend employer-called meetings on unionization or other issues, and even allows employees to get court injunctions against so-called “captive-audience” meetings.  The law plainly addressed a subject covered by the federal law.  The Chamber of Commerce and others brought suit challenging the law on grounds that it was preempted by the NLRA.  But the NLRB was not among them.  True, a federal judge turned back the challenge on grounds the suit was not yet ripe – no one had been forced to attend a meeting, he said. But Mr. Solomon doesn’t see that as a problem for the Board’s own planned lawsuits. “[W]here a danger exists that public knowledge of the provision may result in ‘self-censorship; a harm that can be realized without an actual prosecution,’” the Board can act, he says.  So why didn’t the Board show up in Oregon?  Because it wasn’t politically correct.  This Board’s constituents saw it as “union busting” instead of “union boosting.”  The Board has no qualms, however, over forcing states to spend sorely needed revenue on litigating secret ballot measures that vindicate employees’ rights.  This is unsettling, indeed.
 
If there is any comfort to be gleaned from this, perhaps it is the knowledge that time is short. By the end of 2011, the Chairman’s term on the Board will have expired.  So will that of one of her like-minded colleagues.  EFCA legislation is foreclosed for now by a Republican-controlled House of Representatives. 

The Board surely has one eye on the calendar.  If it is to move its pro-labor agenda, it must act quickly. The threat to state attorneys general is not the last of these actions.  Expect more. Very soon.
 

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*With contributions from Jackson Lewis attorney Jon Spitz.

Not satisfied, it seems, merely with issuing individual case decisions that favor organized labor, the National Labor Relations Board has proposed a rule that would require employers to notify employees of their rights under the National Labor Relations Act through a uniform workplace posting. The posting would be required for both unionized and non-unionized employers and would have to be posted physically and electronically, at least when electronic posting is a “customary means of communicating with employees.”  Click here to view a copy of the proposed notice.

The rule could have a profound impact on union activism.  The notice informs employees of their right to unionize, identifies unlawful conduct by employers, and even contains instructions for filing unfair labor practice charges in the event of alleged violations.  Jackson Lewis will be commenting on (and opposing) the proposed rule on behalf of a number of entities and employers generally.  Comments are due in mid-February.  Implementation in some form, however, is a virtual certainty.

For a company's failure to post the notice, the proposed rule would extend or toll the six-month statute of limitations for filing an unfair labor practice charge against the employer.  An employer's “knowing” failure to post the notice, moreover, could be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.  Finally, failure to post would be considered an independent unfair labor practice.

Employers should begin preparing for the implementation of the rule by considering the following actions:

1. Train managers and supervisors on their rights and responsibilities under the National Labor Relations Act. 
2. Develop a communications strategy to explain to employees the disadvantages of union representation.  Posting of the notice may spark interest in unionization.  Employers should anticipate posting by putting the notice in context and explaining what a union really could mean for employees.
3. Audit employment practices, procedures and benefits and take remedial measures, if needed, to ensure that employees are not vulnerable to a union sales pitch. 
4. Consider training an internal "SWAT Team" prepared to communicate with employees convincingly and lawfully in the event of union activity.
5. Conduct a bargaining unit analysis to ensure potential bargaining units are configured in the manner most advantageous to the employer and its operations.

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