NLRB Keeps Charging Ahead Blindly

In the regulatory mess that is Washington today, the leader of the ridiculous pack just might be the National Labor Relations Board.

With union membership continuing to decline to historically low levels, the NLRB has apparently determined it will do whatever it can to help slow the erosion. It has shown no pretense of fairness in its decisions over the past four years with its rulings also often having major impacts on non-union employers.

In January, a U.S. Court of Appeals threw out three of President Obama's NLRB appointees, raising questions about the legality of recent rulings. Those same people have now been renominated by the President, so the drama continues.

The latest partisan action regards union dues expenditures. The National Association of Manufacturers (NAM) provides this summary:

A case currently before the NLRB could significantly alter the current way in which employees can exercise their Beck rights to object  to union dues’ expenditures.  According to the U.S. Supreme Court, in the Beck decision, employees can object to a portion of union dues’ expenditures if the dues are being used to fund political activity not related to collective bargaining or contract administration.  In a recent case, the United Nurses and Allied Professionals (Kent Hospital) and Jeanette Geary, however, the NLRB decided an employee, who objected to the union’s expenditures, did not deserve to have any verification showing proof how the union was spending its funds.
 
The NLRB proposes to go a step further to give the unions the upper hand by presuming the union is, indeed, spending all the dues correctly.  The effect would be the Board is telling employees they have to prove the union is spending money on lobbying and political activity with no means of independently verifying the union claims.
 
The Board’s new idea would unfairly and unnecessarily stack the deck against employees who have to pay dues, but disagree with the union politically.  Under the proposal, any lobbying activity the union would engage in on Capitol Hill, down to state and local seats of government, would go unchecked.
 

 

Double Standard Approach Not Helping Teamsters

Having worked in Democratic politics, my take on labor in America has certainly been influenced. Without getting too deep in the woods, I think there is definitely a time and place for organization in some industries — and a functional coexistence between a union and an employer can be a healthy thing if both sides act responsibly. The unfortunate aspect of that, however, is that sometimes union tactics become so aggressive — and even hypocritical – they hinder their relevance and hardly endear anyone to their cause. Red State takes a look at a recent Teamsters strategy that even had the National Labor Relations Board irritated. As the author of the post points out, their actions seem to punish the very workers they purport to help.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkers and–again, the Obama labor board is having none of it.

In November, the regional office of the NLRB held a hearing to determine whether or not two clerical workers employed by Teamsters local 667 should be allowed to unionize by the United Steelworkers International Union.

Like the vast majority of employers, the Teamsters hired an outside lawyer.

In the NLRB’s Decision and Direction of Election [PDF], the Acting Regional Director notes that the Employer [the Teamsters] tried to claim that one of the two clerical employees the Steelworkers is trying to unionize should be ineligible because she is confidential.

If the NLRB found that the one employee was a confidential employee, she would have been excluded from being in a bargaining unit and the unit would have been inappropriate since there must be two or more.

The Acting Regional Director found that the individual was not confidential and, as a result, order an election to be held.

The case didn’t end there, however.

The Teamsters deployed their outside attorney to file a lengthy appeal (known as a Request for Review) to the NLRB in Washington.

On December 31, the union NLRB members in Washington denied the Teamsters request for review as it raised “no substantial issues warranting review.”

While the NLRB may not have found any substantial issues warranting a review, here are a couple:

Why is the Teamsters union spending thousands of dollars on hiring lawyers to fight unionization of their own workers?

Couldn’t the Teamster bosses just practiced what they preached and voluntarily recognized the Steelworkers and bargain a…you know…fair contract?

Note: Unions usually call these types of tactics “union busting”…Except, apparently, when it’s unions engaging in said tactics.

Effort to Slow NLRB ‘Ambush’ Fails

OK, there wasn’t much chance the amendment was going to pass the U.S. Senate and, if somehow it did, it would have been vetoed by the White House. But it was worth the old college try, as they say, and it did shine the spotlight once again on the runaway actions of the National Labor Relations Board.

The amendment was an attempt to overturn new regulations that dramatically reduce the time between union organization efforts and the actual election in that workplace. In other words, unions will still be able to make their case for why their presence would make sense during their organizing effort, but employers will have precious little time to respond prior to a vote taking place.

Currently, worker votes typically take place 45 to 60 days after a union gathers enough signatures to warrant an election. Under the new regulations, those votes could take place within a matter of a few weeks, or even days.

Indiana senators Richard Lugar and Dan Coats supported the resolution to overturn the NLRB action. The 54-45 vote to disapprove, however, was along party lines with the exception of one vote.

Lawmaker reactions were swift, calling the rule an "ambush" on employers:

Senator Roy Blunt (R-Missouri): "By speeding up union elections and removing important safeguards that ensure a fair election process, this unnecessary rule will restrict job creators’ free speech rights and limit workers’ opportunities to hear both sides of the argument to unionize — an issue critically important to their livelihood.

"It’s unfortunate that we have to spend time undoing this administration’s reckless job-killing policies when leaders on both sides of the aisle should be working together to pass common-sense, pro-growth solutions that will boost job creation and get our economy back on track," Blunt continued.

Mike Enzi (R-Wyoming), Senate Health, Education, Labor and Pensions (HELP) Committee ranking member: “This vote was an important opportunity to send a message to the NLRB that their job is not to tip the scale in favor of one party or another, but to fairly resolve disputes and conduct secret ballot elections."

Lindsey Graham (R-South Carolina): The National Labor Relations Board seems hell bent on changing processes across the board, more for political reasons than for substantive reasons." 

NLRB Developments This Week

Here are a couple key developments from the NLRB within the last week. If you’re a business owner, prepare to be annoyed:

Mandatory Posting Requirement
The National Labor Relations Board decided Friday to delay the required posting date of its new NLRB posting yet again — this time until April 30, 2012 (it was previously January 31, 2012). The NLRB’s web site reports:

  • The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Rules Regarding Union Elections
Baker & Daniels reports: 

The National Labor Relations Board (Board) has formally adopted a final rule that will expedite the pre-election process and limit the post-election process in union representation cases. The rule will be published in the Federal Register on December 22, 2011, and is due to take effect on April 20, 2012.

As we previously informed you, the Board enacted this rule, which will significantly impede an employer’s right to communicate with its employees and petition the government for redress, while faced with the prospect of losing its quorum at the end of 2011. The rule focuses primarily on union representation cases in which parties cannot agree on issues such as whether the employees the union seeks to represent are an appropriate voting group. It significantly changes existing procedures in these types of cases by limiting the issues to be determined in the pre-election process and precluding pre-election review of regional office decisions in most cases. This rule will likely mean that elections are held in a much shorter timeframe.

It is expected that a variety of pro-business advocacy groups will pursue litigation in an attempt to overturn the new rules.

Unions will most likely be emboldened by the Board’s action, and it may spark an increase in union organizing. To remain union free, it is increasingly important for employers to focus on positive-employee relations and supervisory training.

Our Statement on NLRB’s Push for Swifter Union Control Via Election Process

The National Labor Relations Board (NLRB) has just approved a push for swifter union control through speedier elections that could occur within two to three weeks after filing a petition. Before the rule goes into effect, it will be drafted into final language for a subsequent NLRB vote within the next three weeks.

Comments from Indiana Chamber of Commerce President Kevin Brinegar on this development:

"This is yet another attempt by organized labor to abandon the historical democratic process within labor-management relations and tip the scales in favor of employees voting for a union. Currently, the average time it takes to have an election is 38 days. By cutting that time in half, unions are boldly trying to rob employers of their time to fully discuss the impact of unionizing their workplace.

"It all comes down to fairness. Employees need to be able to fully hear both sides of the union organizing argument, and then let them make an informed decision. What the NLRB is attempting is basically an ambush and once again illustrates the Board’s increasing abuse of power."

There are other concerning changes covered in the new rule, says Brinegar, including no pre-election appeals to the Board and any post-election review of issues would be strictly discretionary.

Background:
The NLRB has less than three weeks to finalize its recommendations since the Board loses its quorum of three members later in December, including one key supporter of the approved election changes. The Board’s vote on Wednesday was 2-1. There are up to five members in total on the Board at any one time.

The National Labor Relations Act provides employees with the right to form or join a union in order to collectively bargain with their employer. To be recognized by an employer, a union must demonstrate it has the support of a majority of the employees. Any union election process is supervised by the NLRB.

NLRB on the Warpath Again?

Despite the attention placed on Congress and its apparent inability to work together or with the White House, more than a few people in the business world lose more sleep because of the work of agencies in our nation’s capital.

Two expected examples on the union organizing front (where Congress has at least stepped up to stop the so-called "card check" legislation):

  • The National Labor Relations Board is looking to shorten union elections from approximately 40 days to as few as 10. The result would be employers having less time to make their case to employees against unionizing (in other words, counteract the pro-union efforts that have been going on prior to the scheduling of the election).
  • The Labor Department is expected to require enhanced reporting of consulting arrangements by companies that use outside guidance to oppose union organizing efforts.

Good to Know: NLRB Sides with Employer in Twitter Dismissal

If you’ve drafted a social media policy for your company, you’ve learned by now that it’s a bit of a gray area. A recent decision by the National Labor Relations Board should inspire some confidence in employers that — should the time come — it could be allowable to dismiss a staffer due to questionable use of social media. Although, in this case, note that the Tweeter in question did identify himself as an employee of the company in his bio. An electronic alert from the Oregon law firm Barran Liebman has the report (reposted here with permission):

In good news for employers, the National Labor Relations Board (NLRB) issued an advice memorandum finding that an Arizona newspaper’s termination of one of its reporters for inappropriate Twitter postings was not an unfair labor practice. The NLRB’s advice memo itself is great guidance for employers looking to understand what they can and cannot do when employees post offensive or disruptive messages about the company on social media sites.

Here are the basic facts that the NLRB examined: A Tucson, Arizona newspaper publisher terminated its public safety reporter after he posted a series of messages on his Twitter account, which the newspaper encouraged him to set up and which identified him as a reporter for the newspaper and included a link to the newspaper’s website. After the reporter tweeted, "[The newspaper']s copy editors are the most witty and creative people in the world. Or at least they think they are," human resources questioned him about why he felt the need to post his concerns on Twitter instead of speaking to people within the organization. Although the newspaper did not yet have a formal social media policy, it then told the reporter that he was prohibited from airing his grievances or commenting about the newspaper in any public forum.

The reporter continued tweeting, including a tweet about a local television news station misspelling something in its Twitter feed and several tweets of his own commentary about homicides in Tucson:

"You stay homicidal, Tucson. See Star Net for the bloody deets."

"What?!?! No overnight homicide? WTF? You’re slacking Tucson"

"Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it."

The publisher confronted the reporter about his tweets and instructed him to not tweet about anything work-related until they determined what to do. The newspaper then suspended him and terminated his employment.

The reporter filed a complaint with the NLRB, alleging that his termination violated Section 7 of the National Labor Relations Act (NLRA). Section 7 prohibits employers from disciplining employees (regardless of whether the workplace is unionized) who have engaged in "concerted activity." In this case, the NLRB attorneys concluded that the reporter’s Twitter messages were not protected and concerted activity because they did not relate to the terms and conditions of his employment, or seek to involve other employees in issues related to employment. For that reason, the newspaper was free to discipline and terminate him for misconduct since his conduct did not involve protected activity.

UPDATE (May 24): Here’s another NLRB decision regarding social media and the termination of employees. Clear as mud now?

We Know About EFCA; What About NLRB?

If you haven’t followed the developments around the Employee Free Choice Act (the Chamber and Indiana Manufacturers Association detailed the challenges in this recent letter), you should. Even more troubling for employers and employees than the quick and easy route to union certification is the binding arbitration provision that would have disputed union contract negotiations being decided by a third party.

But, as is often the case, the regulatory changes on the way could be even more onerous. President Obama is expected to appoint three members – two Democrats and one Republican – to the National Labor Relations Board. The Dems will have the majority and are expected to:

  • Revise earlier policy decisions
  • Change the definition of "employee" to enhance the union-joining process
  • Expand union communications in the workplace
  • Institute a waiting period to decertify a union

Union leaders see now as the time to boost their sagging influence. That would be good if most employees actually benefitted from such a move.