tag:blogger.com,1999:blog-98266422024-03-07T02:40:28.331-05:00Labor Law Blog<a href="mailto:traditionallaborlawblog@yahoo.com">Email me!</a>Unknownnoreply@blogger.comBlogger56125tag:blogger.com,1999:blog-9826642.post-65953088651488353022009-01-16T23:17:00.002-05:002009-01-16T23:35:57.623-05:00President-Elect Obama on EFCAPresident-Elect Obama recently discussed the Employee Free Choice Act with the Washington Post editorial board. The audio is <a href="http://www.washingtonpost.com/wp-dyn/content/video/2009/01/15/VI2009011502509.html">here</a>, and the relevant portion starts at the 56-minute mark.<br /><br />Former Board Member Peter Kirsanow also spoke about the bill on January 17 with the host of America's Business, a production of the National Association of Manufacturers. A link to the audio is <a href="http://www.webcastgroup.com/client/start.asp?wid=0650117094455">here</a>, and Kirsanow's interview starts around 21:30.Unknownnoreply@blogger.com16tag:blogger.com,1999:blog-9826642.post-20119250340568637462009-01-12T22:34:00.006-05:002009-01-14T08:13:52.044-05:00Follow-Up on Proposed ReformJoe Brock, from <a href="http://laboringattheinstitute.blogspot.com/">Laboring Away at the Institute</a>, posted a comment to my proposal for labor law reform. Below, I break his comment into segments and respond. His comments are in italics and my responses are in bold type.<br /><br /><em>I've been looking over your proposal with some interest, and I have some comments that i'd like to share. Your statistics are obviously well researched, and I think these statistics would be surprising to the general public who might not have the benefit of the numbers. For example: You correctly note that the median time between petition and election was 39 days in 2007. I think that would surprise many who have come to the conclusion in listening to the unions argument that it routinely took much longer. I think that 39 days from petition to election is about what it SHOULD take to make such a potentially career changing decision. </em><br /><em><br /></em><strong>You focus on the half of elections held within 39 days and say the law does a good job. I focus on the half of elections that take more than 39 days (including 7% that take more than 56 days and the small minority that take many months) and say that the law can do a substantially better job. There is no need to wait months. We can do better.</strong><br /><br /><em>7-21 days is clearly not enough time if you want your employees or potential members to do their own research based on the facts being offered in a campaign. Who you choose to represent you will impact your income and possibly your personal future more so than who you choose to be your President.</em><br /><br /><strong>Twenty-one days is long enough for employees to perform independent research. Employees would be free to wait that long before casting their ballots. Employees who think they have enough information would be free to cast their ballots 7 days after petition (but no sooner). Employers are thus guaranteed 7 days to communicate their views. That is plenty of time. Moreover, nothing would prevent employers from communicating generally about unionization before any petition is filed. Employees appreciate as well anyone that their decision is important and that each side’s views should be taken with a grain of salt.</strong><br /><br /><em>Holding an election without a decision on the apropriateness of the unit being clarified is a non-starter with me. As you correctly point out, these issues are rare, and the Board does a great job in getting the parties to reach agreement on this when it becomes an issue. I think that if there was going to be a "trial run" it would open up the potential for MORE questions of appropriateness, allowing the employer a free bite at the apple, or a peak under the covers, as it were. Win the "trial run" and drop the question. Lose the election and appeal forever. It would get abused as part of an election strategy.</em><br /><br /><strong>What if the Board were to conduct the election, impound the ballots, fully resolve any dispute over unit appropriateness, and finally conduct the tally of ballots? That procedure would alleviate your concern about an increase in unit-appropriateness disputes because employers would have to litigate the issue <em>before</em> knowing the election result. That procedure would also prevent unit-appropriateness disputes from greatly delaying elections and thereby minimize the temporal opportunity for coercion by both sides.</strong> <br /><br /><em>I'm also not on board with Internet and telephone voting. little or no delay in the election process can be attributable to the physical process of setting up a time and place. 28 days doesnt normally become 40 because the Board agent has a scheduling conflict. Besides, i've been involved with many union elections. The process currently in place is damn near impossible to manipulate. You walk into a room with observers from both sides, you fill out a ballot in secret, put it in a box that never leaves anyones sight. The Board agent knows how many ballots went out, and they're printed on unusual paper. They count them in front of everyone. It's the fairest election process i've seen. In fact, it's the ONLY fair process as far as unions go. This is why they want to change it. Internet and telephone voting make me nervous, and I can see union organizers giving incorrect phone numbers on the cards, or manipulation of internet, etc.</em><br /><br /><strong>The NMB has used telephone voting for 6 years and internet voting for over 1 year without any report of a security breach. Fortune 500 companies use the same technology for shareholder votes, and I’m not aware of any reported security breaches there. In short, I don’t think there’s a reasonable concern that unions will hack the system. (Also, keep in mind that the Board has for a very long time conducted mail-ballot elections. Do you think that internet and telephone voting is less secure than mail balloting?)</strong><br /><br /><strong>I recommended telephone and internet voting because, unlike manual balloting, it allows for a 2-week voting period that starts a week after the petition is filed. The Board can’t accomplish that with manual balloting.</strong><br /><br /><em>Now, moving onto your idea about "limited" bargaining rights. Perhaps I misunderstand your proposal, but doesn't the concept of representing only those who supported the union fly in the face of a secret-ballot vote? Are you espousing that employees publicly declare their allegiance to either the union or the employer? Sounds like an EFCA end around and it has the same problems of any public vote, or card-check.</em><br /><br /><strong>The law currently permits members-only bargaining, absent a 9(a) exclusive representative. I'm merely proposing requiring it in this limited context to eliminate the potential for years of post-election delay in the unionization process. <br /><br />The important point is that the election has already been held, interim membership will not affect the election tally, and the incentive for coercion of employees has thereby been greatly reduced. The ULP process will be available for any coercion that did occur.</strong><br /><br /><em>Again, the delay between vote and certification of the unit is NOT the problem that the unions are making it to be, as your statistics correctly point out. Most elections are certified in 10 days and bargaining can then begin.</em><br /><br /><strong>Most election results are certified shortly after the election. Interim, members-only bargaining won’t affect employers or unions in those cases. In the minority of cases where a long delay occurs between election and certification, interim, members-only bargaining will promote collective bargaining, one of the Act’s enumerated purposes.</strong><br /><br /><em>The REAL problem unions are faced with in the collective bargaining process is that the union is coming to a negotiation with nothing to offer an employer. If you went into negotiations with a car dealer with NO money, and NO credit, you'd get NO car. The union brings no customers, and no capital for an employer. Why would they agree to any improvements if they didn't see a business benefit to it?</em><br /><br /><strong>Unions offer employees (their consumers) an opportunity to require their employer to sit at the table and listen to their concerns. Some employees consider this a valuable commodity. Other employees don’t. Employees, speaking through their representative, sometimes have some good input for employers. Employers sometimes improve working conditions based on that input. Sometimes they improve working conditions based on economic pressure exerted by their unionized employees.</strong> <br /><br /><em>I could go on, but you probably stopped reading a while ago. I certainly commend the thinking outside the box for your ideas, even though I couldn't quite agree with them.</em><br /><br /><strong>Thanks for your comments.</strong>Unknownnoreply@blogger.com5tag:blogger.com,1999:blog-9826642.post-27785527905312532702008-09-14T23:48:00.009-04:002008-09-22T22:51:00.405-04:00A Proposal for Telephone & Internet Voting, Speedy Elections, and Interim, Members-Only BargainingDelay is a significant problem under the NLRA. The Board took more than 100 days to resolve 21% of representation cases in the fourth quarter of FY 2007, and initial bargaining can be further delayed by an appeal to a circuit court. <a href="http://www.nlrb.gov/nlrb/shared_files/reports/PAR2007/NLRB_FY2007_PAR_Final.pdf">NLRB Performance & Accountability Report FY 2007 at 39-40</a>.<br /><br />At least two types of delay can occur during the representation process, thereby postponing initial bargaining: (1) the delay between the date an election petition is filed and the date the NLRB conducts the election; and (2) the delay between the date of election and the date of a final determination that the employer is legally obligated to bargain with an elected union. The first type of delay occurs in all representation cases. The second type of delay occurs in a small minority of cases. However, that delay can be extremely long, and it severely frustrates employees’ collective-bargaining rights. Both types of delay are largely a consequence of current law, not the fault of Board personnel.<br /><br />To speed up the representation process, I propose that the Board start conducting elections by telephone and the internet, as does the National Mediation Board. Second, I propose holding elections <span style="font-style: italic;">before</span> resolving disputes over unit appropriateness. Finally, I propose a statutory amendment that would impose a <span style="font-style: italic;">limited</span> duty to bargain immediately upon a tally revealing that a majority of employees voted in the union’s favor. Below is an elaboration of the problem and my proposals. I’m looking forward to anyone’s comments or counterproposals.<br /><br /><span style="font-weight: bold;">Delay In Holding Elections</span><br />In the vast majority of cases, at least 28 days elapse between RC petition and election. The median was 39 days in FY 2007. <a href="http://www.nlrb.gov/shared_files/GC%20Memo/2008/GC%2008-01%20Summary%20of%20Operations%20FY%2007.pdf">Memo GC 08-01</a>, at 2. In seven percent of cases, it took longer than 56 days. <a href="http://www.nlrb.gov/shared_files/GC%20Memo/2008/GC%2008-01%20Summary%20of%20Operations%20FY%2007.pdf">Id.</a> In a very few cases, it can take quite a while. See, e.g., TransCare Paratransit, 29-RC-11482 (2008) (8 months); Marymount Manhattan College, 02-RC-23151 (2008) (17 months).<br /><br />Long delays between petition and election are sometimes attributable to a dispute over the appropriateness of the petitioned-for unit. Parties were unable to reach an election agreement in 8.8% of RC cases in 2007 and 11.9% of RC cases in 2006. <a href="http://www.nlrb.gov/shared_files/GC%20Memo/2008/GC%2008-01%20Summary%20of%20Operations%20FY%2007.pdf">Memo GC 08-01</a>, at 6. The Board’s current practice is to resolve a dispute over unit appropriateness before holding an election. <a href="http://www.nlrb.gov/nlrb/legal/manuals/rules/part101.pdf">See Sections 101.20 and 101.21 of the Board's Rules and Regulations. </a> Understandably, it takes the Board some time to resolve the factual and legal issues presented. The election is held afterward.<br /><br />Delay between petition and election creates an opportunity for parties to coerce employees before they have recorded their sentiment. Even absent coercion, long delay tends to frustrate an organizing movement as employees’ interest in unionization might naturally wane. Thus, to promote collective bargaining and free choice, employee sentiment should be recorded as quickly as possible after the filing of a petition (while ensuring that all parties have notice and an opportunity to discuss unionization before a vote is taken).<br /><br /><span style="font-weight: bold;">Facilitating Speedy Elections</span><br />To facilitate speedy elections, I first recommend that the Board adopt the National Mediation Board’s telephone and internet voting procedures. See <a href="http://www.nmb.gov/representation/representation-manual.pdf">NMB Representation Manual, Section 13</a>; <a href="http://www.nmb.gov/representation/deter2007/34n041.pdf">Internet Voting Comment Period, 34 NMB 200 (2007)</a>; <a href="http://www.nmb.gov/representation/deter2007/34n013.pdf">Introduction of Internet Voting/Mock Election, 34 NMB 71 (2007)</a>; <a href="http://www.nmb.gov/representation/deter2002/29n090.html">Telephone Electronic Voting, 29 NMB 482 (2002)</a>. The NMB has conducted elections by telephone since 2002 and by the internet since October 2007. The NMB assigns each voter two codes to be used in conjunction to keep voting anonymous and secure. Thus far, the NMB’s technology has maintained ballot secrecy.<br /><br />Using telephone and internet voting, the Board could feasibly hold elections over a period between 7 and 21 days after the filing of the RC petition. Upon filing, the Board could quickly notify the employer, require the employer to immediately post an election notice, obtain an Excelsior list, and send voting instructions to eligible employees. Section 9(c) (1) requires the Board to hold a hearing before conducting an election to decide whether a question of representation affecting commerce exists. A very limited hearing could be held on the sixth day after a petition. The sole issue would be whether the employer affects commerce, a fact that is very frequently the subject of a stipulation. (If Section 9 requires a more substantial hearing -- which is not evident from its text -- I propose a statutory amendment that would permit my proposed procedure.) If 7 days is impracticable, the voting period could be 14 to 21 days.<br /><br />My second proposal is to change current practice and start holding elections before resolving a dispute over the appropriateness of the petitioned-for unit. This change would enable the Board to hold nearly all elections within 7 (or 14) to 21 days after a petition is filed.<br /><br />The general rule of “elections first” would have a limited exception. An election should not be held in a clearly inappropriate unit. Regional Directors would have unreviewable discretion to resolve unit appropriateness before holding an election where they find that the petitioned-for unit is clearly inappropriate (e.g., a petition for a unit of managers, or of employees of multiple employers, or employees of an RLA carrier).<br /><br />A critic might argue that my proposal will result in some wasteful elections. In some cases, the Board will ultimately decide that a petitioned-for unit is not appropriate and therefore it will dismiss the petition or direct an election in a different, appropriate unit. I would respond that current law entails a similar waste. Conducting a hearing on unit appropriateness before an election is a waste when the union ultimately loses the election.<br /><br /><span style="font-weight: bold;">Delay Between Election and Final Determination of Duty to Bargain</span><br />As discussed above, the second type of delay is the delay between the election and a final legal determination that a union is the exclusive collective bargaining representative of an appropriate unit of employees (“post-election delay”). Post-election delay can be extremely long. In the meantime, employees don’t get the benefit of collective bargaining.<br /><br />Post-election delay usually occurs because an employer has filed determinative challenges and/or election objections. Before certifying a union, the Board must resolve challenges and objections, and that process takes time. In some cases, it can take quite a while. <a href="http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35239.pdf">Bloomfield Healthcare Center, 352 NLRB No. 39 (2008)</a> (22 months between election and Board certification); <a href="http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352121.pdf">Lily Transportation Corp., 342 NLRB No. 121 (2008)</a> (8 months); <a href="http://www.nlrb.gov/shared_files/Board%20Decisions/349/v34979.pdf">Reliable Trucking, Inc., 349 NLRB No. 79 (2007)</a> (20 months).<br /><br />Even after the Board issues a certification of representative, some employers refuse to bargain. It takes time for the GC to file a motion for summary judgment and for the Board to issue a bargaining order. <a href="http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35241.pdf">Casino Aztar, 352 NLRB No. 41 (2008)</a> (4 months between certification and Board’s bargaining order); <a href="http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35030.pdf">Carroll College, Inc., 350 NLRB No. 50 (2007)</a> (22 months).<br /><br />Even after the Board issues its bargaining order, employers can and do appeal the Board’s decision to a court of appeals. Again more time elapses. <a href="http://pacer.cadc.uscourts.gov/docs/common/opinions/200706/05-1464a.pdf">U-Haul Co. of Nevada, Inc. v. NLRB, 490 F.3d 957 (D.C. Cir. 2007)</a> (19 months between Board’s bargaining order and court’s enforcement order); Sprain Brook Manor Nursing Home, LLC v. NLRB, 255 Fed. Appx. 529 (D.C. Cir. 2007) (14 months). In U-Haul and Sprain Brook, it took 4 years and 2 years, respectively, between the filing of the petition and the court order to bargain.<br /><br />Only a minority of cases involve such lengthy post-election delay. By my calculation, employers filed determinative challenges and/or objections in approximately 7.6% of cases in which the tally favored a union in 2006, and approximately 6.4%, 7.3%, and 7.7% of such cases in 2005, 2004, and 2003, respectively. <a href="http://www.nlrb.gov/nlrb/shared_files/brochures/Annual%20Reports/Entire2006Annual.pdf">See, e.g., 2006 Annual Report at Tables 11B, 11C, and 13.</a><br /><br />Employers withdrew their challenges or objections in a minority of those cases. Most cases required a hearing and a decision by an RD. As stated above, some cases were appealed to the Board and some further appealed to a court. While this entire group of cases is a relatively small percentage of total cases, the lengthy delay involved is a significant problem under the Act. Employees are deprived of their freely chosen bargaining representative for a long time. This is true regardless whether the employer has appealed based on a good-faith belief in the merit of its arguments or whether it has appealed solely or primarily to delay bargaining.<br /><br />The wait is particularly troubling because, in 2006, the Board overruled employers' elections objections in 86.8% of the RC cases in which it ruled on them. <a href="http://www.nlrb.gov/nlrb/shared_files/brochures/Annual%20Reports/Entire2006Annual.pdf">2006 Annual Report Table 11D. </a> That percentage was 92.5% in 2005, 91.8% in 2004, and 91.4% in 2003. Thus, in most cases, the long wait results in a union certification. (I found no statistics regarding how often the Board certifies a union after resolving an employer's determinative challenges. I speculate that a union is certified in well over half of those cases).<br /><br /><span style="font-weight: bold;">Proposal to Provide Immediate, Limited Bargaining Rights</span><br />To speed up initial bargaining. I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of unchallenged voters cast their ballots in favor of union representation, provided that <span style="font-style: italic;">the union</span> has not challenged a determinative number of ballots. Tallies would occur 22 days after the filing of the RC petition.<br /><br />Upon such a tally, an employer would have to immediately bargain with the union <span style="font-style: italic;">on a members-only basis</span> until the Board resolves the employer’s determinative challenges, election objections, and/or any dispute over the appropriateness of the unit. While waiting for a final legal determination, employers and unions would be required to sit at the table and bargain with open minds about union members' terms and conditions. When a final legal determination ultimately issues, the parties will have a head start on bargaining.<br /><br />(A word about why I propose <span style="font-style: italic;">members-only</span> bargaining during this interim period: while I support the Act's principle of majority rule, I think it would be unwise to permit a union to represent non-supporters until a final determination is made that a majority of employees have freely elected the union in an appropriate unit. Under my proposal, employers and non-member employees would be able to deal directly with each other.)<br /><br />An exception to the limited bargaining duty would exist. No limited bargaining duty would arise, even if a tally favors the union, when the employer disputes unit appropriateness on grounds that the unit includes statutory supervisors, guards and non-guards, employees of multiple employers, etc. Thus, while an election can be held in a unit of putative supervisors, no duty to bargain will arise in such a unit unless and until the Board certifies the union.<br /><br />Under my proposal, if and when the Board certifies the union, the employer must bargain with it as the exclusive representative of all unit employees. On the other hand, if and when the Board concludes that the unit is inappropriate, sustains election objections, and/or resolves determinative challenged ballots against the union, the limited duty to bargain would be extinguished.<br /><br />The limited duty to bargain on a members-only basis would have limited benefit to employees if the law were to forbid employers and unions from reaching interim agreements. Thus, my proposal calls for the law to clearly permit parties to execute members-only CBA’s and to apply them to members only. The amended statute would also permit (but not require) an employer to offer non-members the same terms and conditions as exist under the interim CBA. <br /><br />Skeptical employers might complain that unions will be able to secure limited bargaining rights by committing objectionable conduct. Skeptical unions might complain that employers will retain up to 21 days to coerce employees. To reduce coercion, the proposed statutory amendment would impose a fine on parties (employers and unions alike) found to have coerced employees during an organizing drive. The fines must have sufficient deterrent effect. Likewise, the amendment would impose a fine to deter parties from shirking their interim duty to bargain.<br /><br />Skeptics of my proposal might also argue that it is unwise to require an employer to bargain with a putative union victor when, in some cases, the employer will ultimately prevail on its objections, challenges, or unit-appropriateness arguments. But, keep in mind that the Board overrules employers' objections in about 90% of RC cases. On balance, I think that the law would promote collective bargaining more effectively if it imposed a limited, temporary duty to bargain than to require employees to wait months or years after a valid election for initial bargaining to start.<br /><br />I realize that interim, members-only bargaining will present issues. How, if at all, should the Board apply the unilateral change doctrine? What effect, if any, will an interim agreement have after certification? Professor Charles Morris, who advocates for a general duty to bargain on a members-only basis, has argued that the Board will be able to handle such issues effectively. <a href="http://www.amazon.com/Blue-Eagle-Work-Reclaiming-Democratic/dp/0801443172/ref=sr_1_2?ie=UTF8&s=books&qid=1221278495&sr=1-2">Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace 236-37 (2005)</a>. I agree and will leave my thoughts on such issues for another day.<br /><br />To conclude, I think my proposal has a number of advantages. It speeds up elections and initial bargaining. It retains the secret-ballot election, which ensures, to the greatest extent possible, that employees will record their choice free of coercion. Moreover, it ensures that all unit employees and the employer will have at least 7 days to speak non-coercively about the relative advantages or disadvantages of unionizing before employees cast their ballots. Finally, while I like the merits of my proposal, it also might provide some common political ground. I’m sure that it can be improved. I’m hoping to get some input.Unknownnoreply@blogger.com6tag:blogger.com,1999:blog-9826642.post-23156580488776732112008-07-23T08:50:00.003-04:002008-07-23T09:00:10.042-04:00Orrin Hatch on EFCAHere is a some <a href="http://www.cnbc.com/id/15840232?video=800398370&play=1">video</a> from CNBC's Squawk Box of Senator Orrin Hatch criticizing the Employee Free Choice Act.Unknownnoreply@blogger.com3tag:blogger.com,1999:blog-9826642.post-12761219394421370432008-05-12T00:47:00.000-04:002008-05-12T12:52:12.267-04:00Agreements Not To OrganizeAs discussed at <a href="http://lawprofessors.typepad.com/laborprof_blog/2008/05/an-interesting.html#comments">Workplace Prof Blog</a> and <a href="http://debrisblog.wordpress.com/2008/05/11/andy-sterns-big-sell-out/">Debris</a>, the <a href="http://online.wsj.com/article/SB121038122486582367.html">Wall Street Journal</a> has reported on an agreement between SEIU and UNITE HERE on the one hand and two employers on the other that the unions won't seek to represent certain groups of those employers' employees. SEIU and UNITE HERE currently represent some of those employers' other employees.<br /><br />The Board has given effect to an agreement not to organize a group of workers if "the promise be express, for a reasonable period of time and the result of bargaining between equals." Lexington House, 328 NLRB 894, 897 (1999) (citing Briggs Indiana Corp., 63 NLRB 1270 (1945). In Lexington House, the Board refused to process an RC petition where the petitioning union had promised the employer that it would not seek to represent the petitioned-for unit for 12 months. The Board found that the agreement's restriction was not contrary to the Act's policies.<br /><br />It would be interesting to know what SEIU and UNITE HERE received in return for their promise. Increased wages for the currently represented groups? Better health care? Increased access to still other groups of unrepresented employees? It would also be interesting to know whether the unions had had any interest in organizing or plans to organize the off-limits group. I don't subscribe to the WSL, so can't access the full article.Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-9826642.post-28357242857558988262007-03-30T06:27:00.002-04:002008-11-18T12:17:01.033-05:00More from Estlund and Hurtgen on the Employee Free Choice ActAfter reading the written testimony to the Senate HELP Committee, I sent five questions to Cynthia Estlund and one question to Peter Hurtgen. They kindly agreed to let me post their answers.<br /><br /><strong>Questions to Cynthia Estlund<br /></strong><em>1) How exactly would the EFCA's card-check provisions reduce employer coercion?</em><br /><br />A: Card check limits the employer’s opportunity to wear down the employees over weeks or months, and it would limit the opportunity to extend that period through procedural maneuvers. (Union avoidance consultants, which most employers hire when faced with a union organizing drive, are quite candid that they often need several weeks or more to erode the union’s majority.) Because majority sign-up is a rolling process, the impact of the employer’s campaign may also be diffused by the fact that some of the employees the employer is targeting have already signed up. The Eaton & Kreisky study (cited in my testimony) shows that, one way or another, employees report much less pressure from any source in card check than in election campaigns (and much less pressure from the union than from the employer in either type of campaign).<br /><br /><em>2) Are you concerned that, under the EFCA, a law-abiding employer can lose the opportunity to engage in non-coercive speech on the disadvantages of unionization?</em><br /><br />A: There generally is time for the employer to convey information. First of all, employers are entitled to (and some do) tell employees their views on unionization in general from the first day on the job. As for information about the particular union, except for some very small units, the card check campaign doesn’t stay secret from the employer.<br />In any event, employees don’t obviously have any less information about the union before signing a card than they generally have about the employer before taking a job. You can only learn so much before starting the job. So, too, the best way to learn about what it’s like to have a union is having a union. If you don’t like what you learn over time, and if a majority of your co-workers share your views, you can simply tell the employer that, and the employer can or even must withdraw recognition. When employees are dissatisfied with their employer, by contrast, their only real option is to quit (which of course is no less an option when employees are dissatisfied with the union).<br />Finally, let’s keep in mind that employees who actually have union representation overwhelmingly say they prefer to keep it – 87-90 percent. Opponents of card check often seem to assume that it is some huge and fateful step for employees to choose union representation. But we make a lot of choices in life that are harder to undo, and that have at least as important consequences, with a lot less information and certainly without having to undergo a highly adversarial campaign over its merits.<br /><br /><em>3) Would you support legislation that directly prohibits employers from engaging in non-coercive speech on the disadvantages of unionization?</em><br /><br />A: Apart from constitutional and other problems with such a prohibition, I have doubts about its enforceability, and the impact on already horrendous delays at the NLRB. (If I were able to snap my fingers and enact labor law reform, I would be more inclined to limit employer’s ability to compel employees to submit to captive audience meetings and/or their ability to exclude union organizers from the workplace than to regulate what they can say.) EFCA takes a different, less interventionist approach that allows organizers and employees to choose a different campaign structure instead of further restricting employer conduct.<br /><br /><em>4) You declined to express an opinion on Section 3 of the EFCA, which addresses mandatory interest arbitration. Do you support Section 3?</em><br /><br />A: I do. Interest arbitration is not an ideal end to collective bargaining. But it’s necessary response to a serious problem, and it’s a better spur to good faith bargaining than what current law provides. (And that is mostly how it works in Canada, where the very large majority of cases that could be subject to interest arbitration end in voluntary agreements.)<br /><br />The situation that first contract arbitration is meant to address is familiar and pretty disastrous: Employers, after failing in their union avoidance effort, can continue the fight, stall and delay, aiming not toward an agreement but toward impasse, knowing that all the Board will do is order more bargaining, and all the employees can do is strike, which will expose them to permanent replacement and eventually decertification. (In this they are following the fairly standard advice of those near-ubiquitous union avoidance consultants.) Many employees who manage to surmount the employer’s first anti-union effort lose out in the second phase. They end up with no contract and no tangible gains from their hard-fought campaign; after a year or two or three, demoralization and turnover often doom the union’s majority. It’s a very sad situation that calls for a significant change in the law.<br /><br /><em>5) Do you think that the EFCA's new remedies are sufficient to adequately deter employer coercion? Or, do you think that even greater remedies are required?</em><br /><br />A: First, a lot of conduct that is legal is very coercive, especially over time and in the very intense form that it is often engaged in, given the employer’s overwhelming power over employees and the workplace. But even looking just at illegal forms of employer coercion, the new remedies are probably not a sufficient deterrent. The penalties are likely to be used sparingly. Treble backpay will mainly affect one especially coercive tactic – discriminatory discharges – and would still make the average backpay award under $12,000. That is surely not enough to deter the determined employer. Injunctive relief, and esp. preliminary reinstatement of fired activists, is important and potentially very helpful in undoing some of the harm to the organizing campaign.<br /><br />The problem is that many employers seem to believe (wrongly, I think) that the fate of their business depends on keeping the union out (and their highly-paid consultants fan the flames of anti-union sentiment). It’s hard to know what it would take to adequately deter employers in that situation from taking advantage of their managerial prerogatives, and their ability to predict terrible consequences for the workplace as a whole (which they will be around to help bring about if they “lose”), to induce employees to vote “no.” That’s the thinking behind EFCA’s creation of the alternative structure of majority sign-up or card check. It’s not a perfect solution, but I doubt there is one.<br /><br />The challenge is to change the labor relations climate – social norms, in part – so that more employers (like Cingular, Costco, Kaiser-Permanente) decide simply to deal with the fact of collective bargaining, and to normalize unionization again, so that it becomes one way of moving forward instead of a tooth and nail fight.<br /><br /><strong>Question to Peter Hurtgen</strong><br /><em>Q: You declined to express an opinion on Section 4 of the EFCA, which provides for new remedies. Do you support or oppose Section 4? Do you think that the NLRA’s current remedies are adequate to effectively deter employer coercion?</em><br /><br />A: I oppose section 4 and I believe present Board remedies are adequate or could be without an amendment to the Act.Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-9826642.post-36688884437231064912007-03-26T09:34:00.000-04:002007-03-26T09:38:46.328-04:00Senate Hearing on Employee Free Choice ActThe Senate Committee on Health, Education, Labor, and Pensions is holding a <a href="http://help.senate.gov/Hearings/2007_03_27_a/2007_03_27_a.html">hearing</a> on the Employee Free Choice Act on Tuesday, March 27 at 9:30 a.m.<br /><br />The witnesses will be:<br />Errol Hohrein, an employee who participated in an organizing drive<br />Cynthia Estlund, Professor, NYU Law School<br />Lawrence Mishel, President, Economic Policy Institute<br />Peter Hurtgen, Morgan, Lewis & Bockius LLP, former Chairman and Member of the NLRB, and former Director of the FMCSUnknownnoreply@blogger.com4tag:blogger.com,1999:blog-9826642.post-84425136479715523522007-03-07T01:00:00.000-05:002007-03-07T11:02:42.188-05:00The Employee Free Choice ActOn March 1, the House passed the Employee Free Choice Act (EFCA), H.R. 800, 110th Cong. (2007). That bill is highly unlikely to become law anytime soon. Senate Republicans will surely filibuster the bill, and Vice President Cheney has stated that President Bush will veto the bill if it reaches his desk. The bill probably will not garner enough support to overcome a Republican filibuster, much less a Presidential veto. Nevertheless, the bill merits discussion.<br /><br />If enacted, the EFCA would: (1) obligate the NLRB to certify a union based on a card check; (2) permit a newly-certified union to subject an employer to mandatory interest arbitration if the parties’ negotiations fail to produce a first contact; and (3) impose harsher penalties on employers that violate the NLRA.<br /><br />Proponents of the EFCA argue that current law does not adequately protect employees against employer coercion and that employees therefore cannot truly exercise free choice when deciding whether to select union representation. Under current law, an employer may lawfully refuse to recognize a union until the union wins an NLRB secret-ballot election. To obtain an election, a union must garner support from 30% of employees and file an election petition. The Board immediately notifies the employer about the petition and schedules an election. The median interval between petition and election is 39 days. During that time (i.e., the campaign period), an employer has an opportunity to unlawfully coerce employees by, for example, discharging union supporters, soliciting grievances, promising benefits, and threatening plant closure. The campaign period also creates an opportunity for employers to hold repeated non-coercive and non-objectionable captive-audience speeches and one-on-one discussions in which they urge employees to vote against union representation. Proponents argue that such speech (which I will call “unbalanced speech”) interferes with employee free choice, even though it is non-coercive and non-objectionable, because employees do not hear from unions to the same extent.<br /><br />EFCA supporters seek to eliminate or reduce unlawful coercion, objectionable conduct, and unbalanced speech through, among other means, card-check certification. Under the EFCA, the Board would certify a union after receiving a petition along with signed authorization cards from a majority of employees. There would be no election, and hence no formal campaign period. If a union is able to quietly gather cards from a majority of employees without the employer’s knowledge, the employer will lose its opportunity to counter the organizing drive with coercion and unbalanced speech. Even if an employer informally learns about an organizing drive, it might have fewer days to respond to the union’s campaign than the approximately 39 days it has under current law. For these reasons, proponents argue that card-check certification will help employees exercise truly free choice.<br /><br />Opponents of the EFCA counter that the secret-ballot election is the only method that ensures free choice. Behind the voting booth’s curtain, an employee can privately decide whether to vote for or against representation without either party knowing how she voted. If the EFCA is enacted, non-employee union organizers and pro-union employees would unlawfully coerce employees into signing cards. At best, some employees would sign a card after succumbing to lawful peer pressure in order to please organizers and pro-union colleagues. Some EFCA opponents assert that most employers do not coerce employees during union campaigns and argue that card-check certification is not the way to handle the bad apples.<br /><br />Would card-check certification reduce coercion, objectionable conduct, and unbalanced speech by eliminating the formal campaign period? Somewhat, in my opinion. In some cases, unions will quietly gather cards, the employer will not learn of the organizing campaign until the union is certified, and the employer will have lost its opportunity to counter the campaign. That said, I suspect that most employers learn about a union campaign not from the NLRB, but by observing open activity or from an employee who volunteers the information. If that is true, most employers will still have an opportunity to coerce. Will an anti-union employer refrain from coercing merely because it learned about an organizing campaign from these other sources rather than from the NLRB. I think not. Additionally, under card-check, some employers who fear the possibility that an undetected campaign is underway might start constantly coercing employees year-round.<br /><br />What are the negative effects, if any, of card-check certification? First, without the formal campaign period, employers may lose the opportunity not only to coerce, but also to share the disadvantages of unionization in speeches that are not coercive, objectionable, or unbalanced. I believe that employers have a legitimate interest in speaking to employees about unionization given the restrictions and costs that the NLRA imposes on employers who have a unionized workforce. I also believe that employees sometimes benefit from listening to non-coercive, non-objectionable employer speech on the merits of unionization. Restricting that legitimate employer speech is unwise. Second, card-check certification may introduce an irrelevant factor into the calculus of deciding whether to select union representation. Under card-check certification, employees necessarily reveal whether they support or oppose the union. Some employees who would have voted against union representation free of coercion, objectionable conduct, and unbalanced speech in a secret-ballot election will sign an authorization card after succumbing to non-coercive, non-objectionable peer pressure from pro-union coworkers and non-employee organizers. I suspect that this number will be relatively small, but it may be outcome determinative in some cases. All else being equal (which it is not), the secret-ballot election has a distinct advantage over card-check recognition by ensuring that employers will have an opportunity to engage in legitimate speech and by eliminating the chance that employees select union representation based on a desire to please coworkers (or to avoid irritating them) and not based on its relative merits.<br /><br />Given card-check certification’s limited effectiveness and negative consequences, is there a better way to reduce employer coercion? I suggest enacting even harsher penalties for NLRA violators. Under current law, it is often economically advantageous for employers to coerce employees. Unionization imposes significant costs on employers. Unionized employers must pay their negotiators, incur financial losses associated with refraining from making unilateral changes, and likely pay higher wages and benefits (i.e., the union premium). Coercing pro-union employees has a big benefit: it may avoid these costs by preventing unionization. <br /><br />On the other hand, what are the costs associated with coercing employees? Often very little. Under current law, when the Board finds an employer guilty of many types of coercion (e.g., threatening plant closure or promising benefits), it will merely order the employer to cease and desist and schedule another election. In other words, such coercion costs the employer nothing, and it may save it many thousands of dollars. And what if the Board finds an employer guilty of discharging or suspending a union adherent? Under current law, an employer must make a discriminatee whole with backpay (lost wages minus interim earnings). In 2003, the average backpay award was $3,800. You can see that employers interested in the bottom line have a great incentive to coerce and slight disincentive to be found guilty of coercion.<br /><br />The EFCA provides for mandatory triple backpay, discretionary civil fines up to $20,000 per willful or repeated violation, and mandatory injunctive relief when the Board has reasonable cause to believe that an employer has violated the Act during an organizing drive. If Congress seeks to eradicate employer coercion, it should consider enacting even harsher penalties. Given the economic benefit of remaining non-union, I doubt that the EFCA’s remedies are sufficient to effectively discourage employer coercion. Congress should consider eliminating the set-off for interim earnings, increasing the backpay factor to 5 or 10, and/or increasing the limit on civil fines to $100,000. Such remedies would likely serve as an effective economic disincentive, much like the one that exists under Title VII. And we all know that employers think twice before exposing themselves to liability under that statute.<br /><br />To address the separate problem of unbalanced speech, Congress should consider expanding unions’ opportunities for communication rather than reducing employers’ opportunities. Congress could help level the playing field by entitling unions to access employers’ non-work areas to communicate with employees on non-working time about the merits of unionization. A similar access provision appeared in the Labor Law Reform Act of 1977, which was defeated by a Republican filibuster.<br /><br />In short, I agree that the current legal regime fails to adequately protect employees against employer coercion. Imposing harsher penalties will go a long way toward eliminating that coercion. In contrast, card-check certification would likely have a limited impact on employer coercion. Moreover, it poses significant disadvantages when compared to the secret-ballot election. <br /><br />More to come on mandatory interest arbitration and reducing delay in the certification process.Unknownnoreply@blogger.com3tag:blogger.com,1999:blog-9826642.post-1164728464433445022006-11-28T09:25:00.000-05:002006-11-28T10:41:04.506-05:00Former NLRB Chairman Edward B. Miller Passes AwayEdward B. Miller died on November 10, at the age of 84, after a long struggle with Alzheimer's disease. Miller, a Nixon appointee, served as NLRB Chairman from June 1970 to December 1974.<br /><br />I had the pleasure of observing Mr. Miller argue an NLRB case to a court of appeals back in 2000. He was quite impressive.<br /><br />Mr. Miller's jurisprudence lives on. Recently, a Board majority, citing one of his dissents, overruled precedent and held that the Board will no longer presume that an employer's threat of plant closure was widely disseminated to unit employees. <em>Crown Bolt, Inc.</em>, 343 NLRB No. 86 (2004) (citing <em>General Stencils, Inc.</em>, 195 NLRB 1109 (1972) (Chairman Miller, dissenting)).<br /><br />This <a href="http://www.chicagotribune.com/news/obituaries/chi-0611280145nov28,1,1126690.story?ctrack=1&cset=true">obituary</a> appears in the Chicago Tribune. A <a href="http://www.abanet.org/labor/pp_miller_tribute.shtml">tribute</a> to him, authored by former Chairman John Truesdale, appears on the website of the ABA's Section of Labor & Employment Law.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1164128631512740322006-11-21T09:45:00.000-05:002006-11-21T12:19:31.636-05:00New and Improved NLRB WebsiteThe NLRB has updated its <a href="http://www.nlrb.gov">website</a>. The website allows anyone, after registering, to access an electronic docket of any case pending before the Board. For example, you can view the electronic docket for <em>Midwest Generation</em>, 13-CA-39643, by clicking <a href="http://mynlrb.nlrb.gov/portal/nlrb.pt?open=512&objID=201&parentname=CommunityPage&parentid=4&mode=2&in_hi_userid=427&cached=true">here </a> and inserting "Midwest Generation" in the "Case Name" box. I discussed the Board's decision in Midwest Generation in this <a href="http://traditionallaborlaw.blogspot.com/2005/02/nlrb-holds-that-employers-may-lockout.html#comments">post</a>. In that case, the Board held that an employer did not violate the Act when it locked out full-term strikers while allowing non-strikers and crossovers to continue working. The Seventh Circuit refused to enforce that decision and remanded the case to the Board with an order to find that the partial lockout was unlawful. The electronic docket is interesting in that it shows that the Board initially authorized the General Counsel to ask the Solicitor General to file a cert petition. Evidently, that didn't work out. The Board never filed a cert petition, and it actually opposed the employer's cert petition. The Supreme Court ultimately declined to take the case.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1160748047952241712006-10-13T09:55:00.000-04:002006-10-13T10:00:47.976-04:00Pro-Union Labor-Law Reform Coming in China?The New York Times has a very interesting article on proposed labor-law reforms in China. <a href="http://www.nytimes.com/2006/10/13/business/worldbusiness/13sweat.html?ei=5094&en=a6f855fccccf9c59&hp=&ex=1160798400&adxnnl=1&partner=homepage&adxnnlx=1160746707-OS3J0hdhCh5ex0ofl2P0uQ">David Barboza, <em>China Drafts Law to Boost Unions and End Labor Abuse</em>, N.Y. Times (Oct. 13, 2004).</a>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-9826642.post-1160687080909079132006-10-12T16:53:00.000-04:002006-10-12T17:45:43.396-04:00NPR on Oakwood<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://photos1.blogger.com/blogger/7491/732/1600/101-npr-headquarters.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/101-npr-headquarters.jpg" border="0" alt="" /></a><br />Below are some links to NPR coverage of the Board's <span style="font-style:italic;">Oakwood</span> decision. Click the hypertext link and then the "Listen" button.<br /><br /><br /><a href="http://www.npr.org/templates/story/story.php?storyId=6193870"><span style="font-style:italic;"><br />Labor Board Decision May Slash Union Membership</span>, Morning Edition (Oct. 4, 2004)</a><br /><br /><a href="http://www.npr.org/templates/story/story.php?storyId=6189895"><span style="font-style:italic;">Supervisory Ruling on Nurses</span>, Union, All Things Considered (Oct. 4, 2004)</a><br /><br /><a href="http://www.npr.org/templates/story/story.php?storyId=6186796"><br /><span style="font-style:italic;">Labor Board to Answer "Who is a Supervisor?"</span>, Morning Edition (Oct. 3, 2006)</a> (broadcast before NLRB issued <span style="font-style:italic;">Oakwood</span>)Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1160601382451962512006-10-11T17:09:00.000-04:002006-10-11T17:16:22.483-04:00How Will Employers Respond to Oakwood?A colleague recently speculated that some employers will respond to <em>Oakwood </em>by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses. <br /><br />Statutory supervisors have no bargaining rights, and employers may lawfully discharge them for supporting a union. By increasing their employees’ authority and thereby rendering them statutory supervisors, an employer could sidestep the Act; or so the argument goes.<br /><br />I think that an employer risks being held to have violated Sections 8(a)(3) and (1) if it increases its employees’ authority out of a desire to avoid a bargaining obligation. <em>Cf. Matson Terminals, Inc. v. NLRB</em>, 114 F.3d 300, 302 (D.C. Cir. 1997) (“Both the Board and the courts have long held that an employer who promotes employees to supervisory positions to strip them of their right to self-organization because of a union campaign violates [Sections 8(a)(3) and (1)].”); <em>Comcast Cablevision of Philadelphia, L.P.</em>, 313 NLRB 220, (1993) (holding that employer violated Section 8(a)(1) by promoting a union supporter to a position outside the unit to dilute the union’s support); <em>American Tissue Corp.</em>, 336 NLRB 435, 445 (2001) (holding that employer violated Section 8(a) (3) and (1) by changing the job duties of an employee because of his union support); <em>Regency Manor Nursing Home</em>, 275 NLRB 261 (1985) (holding that employer violated Section 8(a)(1) by coercing employees into accepting supervisory positions in a scheme to undermine union support).<br /><br />Of course, it may be difficult for the NLRB’s General Counsel to prove that an employer acted with an anti-union motive. But the proof problem is not insurmountable given the GC’s authority to subpoena documents and witnesses.Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-9826642.post-1160170697947702822006-10-06T17:21:00.000-04:002006-10-06T17:38:18.013-04:00John Raudabaugh, a Former Member of the NLRB, Comments on Oakwood<a href="http://photos1.blogger.com/blogger/7491/732/1600/Raudabaugh3.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/Raudabaugh3.jpg" border="0" alt="" /></a><br />Over at the HR Policy Association's <a href="http://www.nlrbwatch.com/index.asp">NLRB Watch</a> webpage, <a href="http://www.bakernet.com/cmsbm/templates/displayattorney.aspx?tmkprid=21588">John N. Raudabaugh</a> summarizes the Board's <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-37.pdf">Oakwood</a> decision and makes the following comment:<br /><br /><blockquote>Despite organized labor’s extreme rhetoric calling the Oakwood Healthcare decision “shameless”, “cheap”, a “semantic trick”, and redefining NLRB to “National League of Republican Businessmen”, few individuals will be “deprived” of their rights. First, unlike healthcare, most industry sectors do not employ significant numbers of professionally trained, scientific, or advanced degreed individuals who, additionally, might also qualify for the “supervisory” exclusion. Second, unless unions actually engage in organizing, any mass “deprivation of rights” is theoretical. Targeting the NLRB when it was responding to two rebukes from the Supreme Court to “get it right” is wrong-headed. It is the 1947 amendments to the 1935 Act that is the basis for the NLRB’s ruling on who is or who is not a “supervisor.” Of course, therein lies organized labor’s objective – political rescue. This issue surely will be at the top of their legislative agenda in the new Congress.</blockquote><br /><br />Raudabaugh, a Republican, served as a Member of the NLRB from 1990 to 1993.Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-9826642.post-1159898510686425012006-10-03T13:49:00.000-04:002006-10-07T09:07:35.643-04:00NLRB Issues Long-Awaited Decision Interpreting Section 2(11)<a href="http://photos1.blogger.com/blogger/7491/732/1600/Oakwood3.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/Oakwood3.jpg" border="0" alt="" /></a><br />The Board issued a decision "refining" the analysis it employs to determine whether workers are "supervisors" excluded from the NLRA's protections. Based on a quick scan of the decision, it appears that the Board applied its refined standard to find that twelve permanent charge nurses were statutory supervisors but that other nurses, who served as charge nurses on a rotating basis, were not statutory supervisors. <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-37.pdf">Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006)</a> (Battista, Schaumber, and Kirsanow in majority; Liebman and Walsh dissenting in part).<br /><br />From the majority opinion:<br /><blockquote>In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.</blockquote><br /><br />From the dissenting opinion:<br /><blockquote>If the National Labor Relations Act required [the majority's interpretation]—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts. The majority rejects what it calls a “results-oriented approach” in interpreting the Act. But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences. Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”</blockquote><br /><br />The NLRB issued this <a href="http://www.nlrb.gov/nlrb/press/releases/R-2603.pdf">press release</a> describing the <em>Oakwood </em>decision. The AFL-CIO has issued this <a href="http://www.aflcio.org/mediacenter/prsptm/pr10032006.cfm">press release</a> criticizing the Board's decision, and the U.S. Chamber of Commerce issued this <a href="http://www.uschamber.com/press/releases/2006/october/06-160.htm">press release</a> supporting it. <br /><br />Here are some articles addressing the Board's decision:<br /><a href="http://www.nytimes.com/2006/10/04/washington/04labor.html?_r=1&oref=slogin">Steven Greenhouse, <em>Board Redefines Rules for Union Exemption</em>, N.Y. Times, Oct. 4, 2006</a><br /><a href="http://www.washingtonpost.com/wp-dyn/content/article/2006/10/03/AR2006100301535.html">Dale Russakoff, <em>Some Workers Change Collars</em>, Wash. Post, Oct. 4, 2006 at D01</a><br /><a href="http://www.chicagotribune.com/business/chi-0610040171oct04,1,395200.story?ctrack=1&cset=true">Barbara Rose, <em>Board Decision Could Bar More From Unions</em>, Chicago Trib., Oct. 4, 2006</a><br /><a href="http://www.deseretnews.com/dn/view2/1,4382,650196013,00.html?textfield=lois">Lois M. Collins, <em>Unions Criticize Ruling on Nurses</em>, Deseret Morn. News, Oct. 4, 2006</a><br /><a href="http://www.kansascity.com/mld/kansascity/business/15671901.htm">Diane Stafford, <em>Labor Board Decision Goes Against Unions</em>, Kan. City Star, Oct. 4, 2006</a><br /><a href="http://www.post-gazette.com/pg/06277/727130-28.stm">Anya Sostek, , Pitt. Post-Gazette, Oct. 4, 2006<em>NLRB: Nursing Supervisors Not Eligible for NLRB</em></a><br /><a href="http://hosted.ap.org/dynamic/stories/L/LABOR_SUPERVISORS?SITE=WILAC&SECTION=HOME&TEMPLATE=DEFAULT">Will Lester, <em>NLRB Redefines Union Eligibility</em>, Lacrosse Trib., Oct. 4, 2006</a><br /><a href="http://www.freep.com/apps/pbcs.dll/article?AID=2006610040368">Alejandro Bodipo-Memba, <em>Unions: Ruling Hurts Nurses</em>, Det. Free Press, Oct. 4, 2006</a><br /><br />The Board also issued two other decisions applying <em>Oakwood</em>'s refined standard. <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-39.pdf">Golden Crest Healthcare Center, 348 NLRB No. 39 (2006)</a> (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that a group of nurses were statutory supervisors); <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-38.pdf">Croft Metals, Inc., 348 NLRB No. 38 (2006)</a> (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that its lead persons were statutory supervisors).Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1154524195018687562006-08-02T08:55:00.000-04:002006-08-04T09:41:04.906-04:00President Bush Nominates Wilma B. Liebman to Serve Another Term on the NLRB<a href="http://photos1.blogger.com/blogger/7491/732/1600/liebman1.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/liebman1.jpg" border="0" alt="" /></a><br />Yesterday, President Bush <a href="http://www.whitehouse.gov/news/releases/2006/08/20060801-7.html">nominated</a> current Member Wilma B. Liebman to another five-year term on the NLRB. Liebman's current term expires August 27, 2006. The President previously nominated Dennis Walsh, Peter Kirsanow, and Peter Schaumber to the seats they currently occupy as recess appointees. Ronald Meisburg has also been nominated to fill the General Counsel's position.<br /><br />I suspect that the Senate will confirm all of these nominees as a package before it recesses on Friday, August 4. If Liebman is confirmed and serves out her term, she will become the third-longest-serving Member in the Board's 71-year history behind John Fanning (served 25 years) and Howard Jenkins (served 20 years). Here is a <a href="http://traditionallaborlaw.blogspot.com/2005/05/president-bush-nominates-dennis-p.html">post </a> that summarizes some Board decisions in which Member Liebman disagreed with her fellow Democrat, Member Walsh.<br /><br />UPDATE: This <a href="http://help.senate.gov/Hearings/2006_08_02_E/2006_08_02_E.html">agenda </a>for today's Executive Session of the Senate HELP Committee indicates that the Senate may act on the nominations of Liebman, Schaumber, and Meisburg only (not Kirsanow or Walsh). The recess appointments of Kirsanow and Walsh last until the Senate adjourns in late 2007. Thus, there is no pressing need to confirm those two nominees. Postponing consideration of these two nominees until that time would create the opportunity for a three-Member package, including Chairman Battista, whose term expires in December 2007.<br /><br />UPDATE: The Senate HELP Committee unanimously approved the nominations of Liebman, Schaumber, and Meisburg. The full Senate will now consider the nominations.<br /><br />UPDATE: The Senate has <a href="http://thomas.loc.gov/cgi-bin/dailydigest">confirmed </a>Liebman, Schaumber and Meisburg.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1153333589914561462006-07-19T12:07:00.000-04:002006-07-19T22:09:43.386-04:00Stephen Colbert is a Labor Law Fanatic<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://photos1.blogger.com/blogger/7491/732/1600/281x211.0.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/281x211.0.jpg" border="0" alt="" /></a><br /><a href="http://www.americanrightsatwork.org/workersrights/colbert_kyriver.cfm">Here is a clip</a>, via American Rights at Work, from yesterday's Colbert Report in which Colbert proclaims that he "can't get enough of National Labor Relations Board Decisions; they are terrific!" <br /><br />Colbert weighs in on a hot issue now before the Board: whether nurses are statutory supervisors and therefore not entitled to the Act's protection. Check it out.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1149167559588683962006-06-01T08:35:00.000-04:002006-06-01T09:58:26.746-04:00Webcasts of Hiatt and Getman Lectures<a href="http://photos1.blogger.com/blogger/7491/732/1600/jonhiattweb%5B1%5D.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/200/jonhiattweb%5B1%5D.jpg" border="0" alt="" /></a><br />Back in November, I mentioned in a <a href="http://traditionallaborlaw.blogspot.com/2005/11/upcoming-lectures-on-labor-law.html">post </a>that Jonathan Hiatt (pictured left) and Julius Getman were giving separate lectures on labor law. Webcasts of both lectures are now available online.<br /><br />Hiatt's speech is particularly interesting. He notes that we live in a culture that values individual rights (e.g., the rights protected by Title VII, ADEA, FLSA) and marginalizes collective rights (e.g., the rights protected by the NLRA). Hiatt argues that citizens who value individual rights should care about collective rights because employees who pool their resources and speak with one voice are better equipped to enforce statutorily protected individual rights. Hiatt is quick to point out that collective bargaining is not merely a good mechanism for enforcing individual rights. Through collective bargaining, employees can protect themselves against arbitrary employer action that no law prohibits. Hiatt argues that collective bargaining increases employees’ bargaining power, which can help them to improve their wages and benefits, and provides a voice for employees who wish to give input to their employers on matters of common interest.<br /><br /><br /><a href="http://www.law.case.edu/lectures/webcast.asp?dt=20060308">The Decline of Labor Unions: Is Labor Law to Blame?</a><br /><br /><a href="http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=61">Collective Rights in the Workplace Within a Culture of Individual Rights</a> (Hiatt really starts his lecture at about the 10:30 mark.)Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1149009566145570742006-05-30T12:11:00.000-04:002006-05-30T13:19:26.213-04:00Representative Christopher Shays Introduces a Bill to Amend the NLRA<a href="http://photos1.blogger.com/blogger/7491/732/1600/Shays.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/Shays.jpg" border="0" alt="" /></a><br />On May 4, 2006, Representative Christopher Shays (R-CT) introduced a bill that would set statutory deadlines for the NLRB. <a href="http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5310.IH:">The National Labor Relations Board Reform Act</a>, H.R. 5310 IH, would require the Board to: (1) certify an election result not later than 12 months after the representation petition was filed; and (2) issue its order in a ULP case not later than 6 months after the General Counsel issued his complaint (not later than 12 months for “novel” issues). These statutory deadlines may be extended only with the agreement of the parties.<br /><br />By providing that the Board shall act “not later” than these deadlines, the bill would seem to remove the Board’s statutory authority to act beyond the deadlines. <br /><br />The bill would require the Board to act several times faster than it acts now. In FY 2005, the median for processing a ULP case from complaint to order was approximately 19 months. See <a href="http://www.nlrb.gov/nlrb/shared_files/brochures/Annual%20Reports/Entire2005Annual.pdf">Seventieth Annual Report of the NLRB at 171 (Table 23)</a>. In FY 2005, the median for processing a representation case from petition to Board decision was 9.5 months. Though this median is within the bill’s 12-month deadline, half of the cases took longer than the median, and many likely took far longer than 12 months. The median for representation cases awaiting Board decision as of September 30, 2005, was approximately 27 months from the date the petition was filed. <br /><br />The Board would have great difficulty meeting the bill’s deadlines unless Congress significantly increases the Board’s resources. Absent improved funding, the bill likely would require the Board to give short shrift to many cases in order to avoid losing the power to act. Rushed decisions will likely be poorer decisions, and the Board may find it more difficult to obtain court enforcement.<br /><br />Justice delayed is justice denied. Spurring the Board to enforce the Act faster is a laudable goal. However, setting short deadlines and removing the Board’s power to act beyond those deadlines may end up harming the Act’s intended beneficiaries.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1144158218924840492006-04-04T09:15:00.000-04:002006-04-04T09:46:02.800-04:00Podcast with Board Member Peter Kirsanow<a href="http://photos1.blogger.com/blogger/7491/732/1600/Kirsanow.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/Kirsanow.jpg" border="0" alt="" /></a><br />This business <a href="http://www.cleveland.com/podcast_files/kroll2.mp3">podcast</a> from the Cleveland Plain Dealer contains audio clips of an interview with Board Member Peter Kirsanow. The podcast discusses Kirsanow's background, his view of the union movement in today's global economy, the role of politics at the NLRB, and organized labor's concern over Kirsanow's recess appointment. The relevant part of the podcast is 3:35 to 9:50. Reporter Alison Grant, who conducted the interview, authored this piece on Kirsanow. <a href="http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=kirsanow02&date=20060402&query=kirsanow">Allison Grant, <em>Distinctive Politics Set Labor-Board Member Apart</em>, The Seattle Times (April 2, 2006)</a>.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1138946900827603232006-02-03T04:01:00.000-05:002006-02-03T01:08:20.853-05:00Dunder-Mifflin Violates Section 8(a)(1)<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://photos1.blogger.com/blogger/7491/732/1600/1OFFagN05.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/1OFFagN05.jpg" border="0" alt="" /></a><br />I cannot resist mentioning last night's episode of The Office. The warehouse employees tell Michael that they are interested in forming a union to improve their wages and benefits. Michael relays their interest to manager Jan, who gives the following speech to the warehouse employees.<br /><br />"I am told that there has been some interest in forming a union and that Michael supported it. Obviously, he is not a friend of yours because he didn't tell you the facts; so let me. If there is even a whiff of unionizing in this branch, I can guarantee you that the branch will be shut down like that [snapping her fingers]. They unionized in Pittsfield, and we all know what happened in Pittsfield. It will cost each of you a fortune in legal fees and union dues and that will be nothing compared to the cost of losing your jobs, so I would think long and hard before sacrificing your savings and your future just to send a message."<br /><br />Jan should have read <span style="font-style:italic;">NLRB v. Gissel Packing Co.</span>, 395 U.S. 575 (1969), before delivering that speech. Her guarantee that that the branch would close upon any whiff of unionization does not look like a prediction carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond its control. I can't wait until next week's episode when a cease-and-desist order (with notice posting) puts Dunder-Mifflin back in its place.Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-9826642.post-1137970960135425052006-01-22T20:57:00.000-05:002006-01-23T07:21:38.686-05:00Charles H. Goldstein Labor Law Symposium<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://photos1.blogger.com/blogger/7491/732/1600/GW%20Law.1.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/GW%20Law.1.jpg" border="0" alt="" /></a><br />On February 17, The George Washington University Law School will host the <a href="http://www.law.gwu.edu/NR/exeres/E49D829A-84B2-4254-9059-7B19D28E4459,frameless.htm?NRMODE=Published">Charles H. Goldstein Labor Law Symposium</a>. The Symposium will address the following topics:<br /><span style="font-weight:bold;"><br />Is the NLRA an Outmoded Statute in the 21st Century?</span><br />Chair, Professor Charles Craver, GW Law School<br />Professor Cynthia Estlund, Columbia Law School<br />Jonathan Hiatt, General Counsel of the AFL-CIO<br />Robert Battista, NLRB Chairman<br /><span style="font-weight:bold;"><br />What Must Labor Unions Do to Survive in the 21st Century Economy?</span><br />Chair, Professor Fred Freilicher, GW Law School<br />Wilma Liebman, NLRB Member<br />Marshall Babson, Hughes, Hubbard & Reed<br />Judy Scott, General Counsel of SEIU<br />Professor Keith Hylton, Boston University School of Law<br /><br /><span style="font-weight:bold;">Moving to a Post-Industrial, Global Economy and the Decline of Labor Unions</span><br />Chair, Professor Charles Craver, GW Law School<br />Professor Marion Crain, UNC Law School<br />Pat Szymanski, General Counsel of the Teamsters<br /><br />As an aside, the NLRB recently held that The George Washington University violated Section 8(a)(5) and (1) by refusing to bargain with a newly certified union that represents a unit of part-time faculty members. <span style="font-style:italic;"><br />See <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-13.htm">The George Washington University</span>, 346 NLRB No. 13 (2005)</a>.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1137553948617692462006-01-18T02:57:00.000-05:002006-01-18T00:04:25.030-05:00President Bush Recess Appoints Dennis P. Walsh to the NLRB<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://photos1.blogger.com/blogger/7491/732/1600/walsh1.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/walsh1.jpg" border="0" alt="" /></a><br />On Tuesday, January 17, President Bush recess appointed Dennis P. Walsh to be a Member of the NLRB. The White House's announcement is <a href="http://www.whitehouse.gov/news/releases/2006/01/20060117-4.html">here</a>. <br /><br />This recess appointment brings the Board to full strength. Robert Battista (R), the chairman, sits in the Murdock seat. His term will expire on 12/16/07. Peter Schaumber (R) sits as a recess appointee in the Madden seat. His appointment will expire at the end of this session of Congress. Peter Kirsanow (R) sits as a recess appointee in the Carmody seat. His appointment will expire at the end of Congress' next session. Wilma Liebman (D) sits in the Smith seat. Her term will expire on 8/27/06. And Dennis Walsh (D) sits as a recess appointee in the Gray seat. His appointment will expire at the end of Congress' next session. Nominations for each of the recess appointees are pending in the Senate.Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-9826642.post-1137443909428493942006-01-16T18:35:00.000-05:002006-01-17T08:43:31.333-05:00NLRB Declines to Rule on Legality of Inflatable Rat<a href="http://photos1.blogger.com/blogger/7491/732/1600/Rat4.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;" src="http://photos1.blogger.com/blogger/7491/732/320/Rat4.jpg" border="0" alt="" /></a><br />The NLRB recently avoided resolving a hot issue when it declined to answer whether a union violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near a secondary employer’s entrance. <a href="http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-22.pdf"><em>Sheet Metal Workers Local 15 (Brandon Regional Medical Center)</em>, 346 NLRB No. 22, slip op. at 2, n.3 (2006).</a> <br /><br />In that case, the General Counsel issued a complaint alleging that the respondent union violated the Act on two separate occasions. First, the GC argued that the union violated Section 8(b)(4)(ii)(B) by displaying the inflatable rat. Second, the GC argued that the union violated that same section by staging a mock funeral procession during which union members patrolled the public sidewalk in front of the secondary employer while carrying a faux casket. An ALJ found that each action separately violated Section 8(b)(4)(ii)(B). The Board unanimously adopted the judge’s finding that union violated the Act by engaging in the mock funeral procession. Reasoning that a finding of an additional violation would be cumulative and would not affect its Order, the Board declined to address the legality of the inflatable rat.<br /><br /> The press has given a good deal of attention to the inflatable-rat issue lately. See <a href="http://www.democratandchronicle.com/apps/pbcs.dll/article?AID=/20050925/BUSINESS0101/509250342/1001/BUSINESS">Joy Davia, <em>Inflatable Rats Seek Cover After Labor Board’s Ruling</em>, Dem. & Chron., Sept. 25, 2005</a>; <a href="http://www.cleveland.com/search/index.ssf?/base/business/1128418462199280.xml?bxbiz&coll=2">Alison Grant, <em>Free Speech or Vermin?</em>, Plain Dealer, Oct. 4, 2005</a>; <a href="http://www.workforce.com/section/00/article/24/15/94.html">Jessica Marquez, Unions’ Inflatable Rat an Endangered Species, Workforce Management, Sept. 9, 2005</a>; <a href="http://select.nytimes.com/gst/abstract.html?res=F00E13FE38540C7B8EDDAB0994DD404482">Alan Feuer, <em>Labor’s Huge Rubber Rat, Caught in a Legal Maze</em>, N.Y. Times, Dec. 28, 2005, at B1</a> (subscription required). To see streaming video of MSNBC coverage, click this <a href="http://video.msn.com/v/us/v.htm?f=email">link</a>, insert “rat becomes union protest symbol” into the "MSN Video search" box, and click on the result. The issue has also received some academic commentary. See Timothy F. Ryan and Kathryn F. Davis, <em>Banners, Rats, & Other Inflatable Toys</em>, 20 Lab. Law. 137 (2004). <br /><br /> Displaying a large inflatable rat is similar in many respects to erecting a large banner. The Board has been unsuccessful in its attempts to persuade federal courts in Section 10(<em>l</em>) proceedings that reasonable cause exists to believe that unions have violated the Act by erecting large banners near secondary employers. <em>Overstreet v. Carpenters Local 1506</em>, 409 F.3d 1199 (9th Cir. 2005); <em>Gold v. Mid-Atl. Reg’l Council of Carpenters</em>, 2005 WL 3597692 (D. Md. Dec. 22, 2005). It remains to be seen how the newly constituted Board will handle these issues.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-9826642.post-1136438511363342842006-01-04T23:15:00.000-05:002006-01-05T00:33:52.546-05:00President Bush Makes Recess Appointments to the NLRBOn January 4, President Bush <a href="http://www.whitehouse.gov/news/releases/2006/01/20060104-3.html">recess appointed</a> Ronald E. Meisburg as the General Counsel and Peter N. Kirsanow as a Member of the NLRB. The President had nominated Meisburg and Kirsanow for these positions in July and November 2005, respectively. Both of those nominations have been referred to the Senate Committee on Health, Education, Labor, and Pensions, as was the President's April 2005 nomination of Dennis P. Walsh to serve as a Member of the Board. The President declined to recess appoint Walsh.<br /><br />The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office. <br /><br />The recess appointments follow quickly on the heels of an <a href="http://www.nrtw.org/b/nr_466.php">article</a> in the Wall Street Journal authored by the president of the National Right to Work Legal Defense Foundation, Mark Mix. In the December 31 article, Mix urged the White House "to get off the dime and install an NLRB majority" to address the <span style="font-style:italic;">Dana/Metaldyne</span> cases, among others, free from the constraint of institutional adherence to precedent.<br /><br />Will the appointments satisfy<a href="http://www.lawmemo.com/blog/"> Ross Runkel </a>?Unknownnoreply@blogger.com1