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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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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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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