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

This week’s National Mediation Board (NMB) hearings gave us another example of the Administration’s ongoing efforts to further Labor’s agenda and make it significantly easier for unions to organize. In an effort to reverse 75 years of experience in conducting union elections under the Railway Labor Act (RLA), the new Obama-appointed NMB member, with a union background, joined with another member, also with a union background, in an attempt to steamroll adoption of a change in NMB voting procedure which would eliminate the need for a union to demonstrate majority support in the voting unit it is attempting to organize.

At the hearings, John Conley, a representative of the Transport Workers Union, stated candidly his union’s position that labor needs this change because unions were not winning enough elections. This admission is astounding, considering that the rate of union election successes under the RLA far outstrips that under the NLRA. During the first six months of this year, unions were winning 73% of all NLRB elections, up from 66% last year. According to the unions, however, winning almost three out of every four election is still not enough.

Several of those testifying painted a grim picture of both “labor politics” and the lack of NMB neutrality exhibited in the proposed rulemaking. What really is driving this issue for the unions is the merger of Delta Airlines and Northwest Airlines. Following the merger, the two unions representing former Northwest Flight Attendants (AFA) and Mechanics (IAM) faced elections at the post-merger Delta, in which union members would vote with Delta’s unrepresented employees in the same voting units. Both unions filed for elections, but, following delays in processing those election applications by the NMB — and coincidentally,just days before the NMB announced the rulemaking — both unions withdrew those applications, likely anticipating an easier road to victory. The timing of these events calls into question the integrity of the NMB process. Considering the enormous stakes the unions have in these elections, involving tens of thousands of employees and potentially millions of dollars in dues revenue for the unions, the handling of its notice of proposed rulemaking (NPRM) casts a shadow over the NMB’s actions.

Further illustrating its results-driven approach is the fact the Board is ostensibly limiting its review to just a single change in voting procedures, without addressing other changes which are equally critical for review. At the hearing, Randel Johnson of the U.S. Chamber of Commerce criticized the Board for ignoring the Chamber’s proposal that as the Board considers changing its voting rules, it should also consider establishing a clear decertification procedure.  Johnson argued that if the Board makes it easier for unions to organize, it should similarly protect the rights of employees who no longer want unions that fail to represent them adequately. This argument is all the more compelling if the Board’s rule changes allow representation by unions selected by only a minority of the electorate.

Roger Briton, a Jackson Lewis partner, appeared at the hearing on behalf of the Airline Services Council of the National Air Transport Association, an aviation industry ground handling group. He cautioned the Board about the potential instability which is likely to follow the proposed rule change.  Briton’s remarks submitted at the hearing are available here.  Regrettably, union’s organizing agenda is being adopted and advanced by a friendly NMB majority.

Connect the dots…. The same week these proceedings took place, the Department of Labor announced it would seek to reinterpretation the “advice” exception under the Labor-Management Reporting and Disclosure Act (LMRDA) so as to broaden the application of the law. The unstated objective is to chill employer free speech in union organizing situations, making it easier for unions to organize.

Connect the dots…. The pending EFCA labor law reform proposal has as one of its components the imposition of harsh financial penalties against employers who may improperly express their opposition to unions. To avoid the possibility of such penalties, employers are likely to give up their free speech rights and limit their opposition to union organizing, making it easier for unions to organize.

Connect the dots…. Amending the NMB election procedures, as proposed by the two Board members, would allow the selection of union representation not by a majority of employees, as has been the case for the past 75 years, but rather by a minority of eligible voters. The objective it to make it easier for union to organize.

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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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President Obama sent his nominations for the three empty seats on the NLRB to the Senate on July 9, 2009. One of the three, Craig Becker, is currently the Associate General Counsel for the Service Employees International Union (SEIU). Although Mr. Becker has much labor law experience, he has some extreme ideas for reforming labor law, many of which would involve stripping employers of many long-established protections.

In 1993, Mr. Becker wrote an article for the Minnesota Law Review, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495 (Feb. 1993), in which he claims that the current union election process is flawed and proposes  wholesale changes to fix them.

For example, Mr. Becker proposes that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” This would m ean an employer would lose its right to participate in hearings before the Board to resolve issues related to the election, or even to have an observer present at the election, among other things. Mr. Becker proposes eliminating the 72-year-old mandate of the Taft-Hartley Act that the Board certify unions based only on the results of an NLRB-supervised secret ballot election. Mr. Becker also proposes restricting, and in some cases eliminating, an employer’s “free speech” rights during an election campaign, although the right is spelled out in the Act.  In short, Mr. Becker would go further than even EFCA .

What is most disturbing, back in 1993, Mr. Becker, then writing as an academic, suggested that many of his drastic “reforms” could be accomplished through the Labor Board’s re-interpretation of the Act. He would sidestep legislation while kicking over the traces. Now, Mr. Becker is poised to take his seat on the Board where he could try to effectuate his ideas.  

We do not know whether the Senate will conduct hearings on Mr. Becker’s nomination before voting on his confirmation, although the U.S. Chamber of Commerce, on July 24, requested the Senate Health, Education, Labor and Pensions Committee do exactly that. R. Bruce Josten, the Chamber’s executive vice president for government affairs, said, in a letter to HELP’s chairman and ranking member, that SEIU “has a record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of secret ballot elections.” He cited SEIU's “intense advocacy” of the proposed Employee Free Choice Act and said Becker might attempt through Board decisions to impose card-check certification and “the effective elimination of secret ballots.”

In early-August, a Republican staffer reportedly said Senator Michael B. Enzi (R-Wyo.), HELP’S ranking member, wants a hearing on all three NLRB nominees. However, HELP so far has not announced any plans for a hearing and has not yet scheduled a vote.

We will keep you advised as the confirmation process progresses.

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