Posted on April 28, 2011 by Seth Borden

Media Round-Up: NLRB Complaint Against Boeing

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Posted on April 25, 2011 by Seth Borden

NYT: National Labor Relations Board to Sue Arizona, South Dakota Over Anti-Card-Check Amendments

Steven Greenhouse writes in the New York Times that the National Labor Relations Board plans to proceed with lawsuits against two of the four states it threatened earlier this year over state constitutional amendments to ban union recognition by card-check.  On January 14, 2011, Acting General Counsel Lafe Solomon advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections.  In response the states argued that the amendments support the current federal law and did not disrupt the federal regulatory scheme.  

In February, the Acting General Counsel replied to the states indicating that the Board would refrain from bringing suit while they discussed whether they could resolve the issue "without the necessity of costly litigation."  Now, Greenhouse reports the Board has indicated it will soon file federal lawsuits against Arizona and South Dakota seeking to invalidate the amendments: 

In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.

The Board has suggested it might proceed against the other two states at a later date.  Greenhouse includes reaction from Arizona and South Dakota to the announcement: 

In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”

At a February 11, 2011 hearing before the House Committee on Education and the Workforce, several witnesses indicated that any preemption dispute over this issue could be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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Posted on April 22, 2011 by Seth Borden

Politico: SEIU to Employ Madison-Style Protests in Run-Up to 2012

Politico's Ben Smith reports the Service Employees International Union (SEIU) has compiled a draft playbook for national political operations modeled on the recent protests in Madison, Wisconsin. The approach is a significant shift from the union's more traditional approach to the 2008 campaign -- spending "more than $32.5 million in independent expenditures to elect President Barack Obama." 

From the Politico piece:

SEIU President Mary Kay Henry acknowledged in an interview that the new strategy, which would include aggressive outreach to non-union members, is “a risk.”

“We felt like we were called in this moment to roll the dice and to think about how to use our members resources for the greatest hope for changing members lives,” she said. “I hope what people will see is more of what we all witnessed in Madison. ... more people in the streets making demands about what kind of America we want to see.”

The new plan, revealed in a planning document reviewed by POLITICO and in the subsequent interview with Henry, reflects the widening recognition by labor leaders that the shrinking national ranks of union members no longer carry the political heft they once did. The draft plan, titled “Fight for a Fair Economy” in what Henry said was a preliminary planning document, would reach outside union ranks to focus on “mobilizing underpaid, underemployed and unemployed workers” and “channeling anger about jobs into action for positive change.”

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Posted on April 22, 2011 by Seth Borden

NAM Explores Political Future of NLRB Composition

At its Shopfloor blog, the National Association of Manufacturers today revisits the status of the various nominations and appointments to the National Labor Relations Board. 

President Obama nominated Member Craig Becker -- a former professor and attorney for SEIU and the AFL-CIO -- to the Board back in July of 2009.  In February 2010, the Senate failed to pass a cloture motion on Becker's nomination, by a vote of 52-33, and it was returned to the President.   The President subsequently recess appointed him to a Member's seat, and re-submitted his nomination in January 2011, generating a significant  amount of opposition including from Senators Michael Enzi (R-WY) and Orrin Hatch (R-UT). 

NAM notes rumors that the President may nominate Member Becker to the vacated seat of current Chairman Wilma Liebman whose term expires this summer.   A subsequent recess appointment to that vacancy, following another defeated nomination, may allow Member Becker an unconfirmed position on the Board through the end of the next session of Congress.

President Obama has also nominated Acting General Counsel Lafe Solomon to serve a full four-year term as GC.  From NAM's assessment of where things may go: 

No Senate confirmation hearings have been scheduled for Becker, Solomon or President Obama’s nominee to fill a Republican vacancy on the board, Terence F. Flynn, current counsel to NLRB Member Brian Hayes (a Republican).

Standard operating, political procedure in the Senate would be to delay these confirmation hearings as long as possible. But in light of the board’s recent radical decisions, it might be better to schedule the Senate HELP Committee hearings as soon as possible to air out the NLRB’s political, pro-union agenda.

As for the House, we anticipate a renewed push by Republicans to defund the agency. The effort led by Rep. Tom Price (R-GA) was stopped during the February budget debate by a vote of 176-250. ....

You can read the entire post here.

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Posted on April 21, 2011 by Seth Borden

Media Round-Up: NLRB Complaint Against Boeing

 

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Posted on April 19, 2011 by Seth Borden

Former NLRB Member: Board to Rewrite Organizing Law, Ignore Federal Rulemaking Requirements

In The Hill's Congress Blog today, former National Labor Relations Board Member and Chairman Peter Schaumber writes about the Board's approach to the closely watched Specialty Healthcare case.  Mr. Schaumber warns that the Board appears intent on effecting a major change in national labor policy without resorting to the basic strictures of the Administrative Procedure Act (APA).

Beyond the procedural criticism, Mr. Schaumber also expresses his concern about the substance of the anticipated changes:

A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. Even if agreements can be reached, fragmented units can create lasting legal and administrative costs in applying different agreements and working conditions to a slew of small groups of employees scattered around the workplace. Unit fragmentation also undermines the perceived legitimacy and bargaining strength of unions by severely restricting the size of their constituency relative to the overall workforce. These deleterious affects obviously take on heightened significance in the context of medical facilities, where heightened costs of care and the disruption of operations pose serious risks to public health.

That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit. However, the Board has now signaled a sharp change in direction, one which may impact unit determinations, not just in nursing homes and other non-acute care facilities, but in all industries. The Board in the Specialty Healthcare case recently invited briefs on whether it should abandon decades of precedent and adopt a new rule that would approve units of two or more employees doing the “same job” in the “same location,” without regard to whether those employees comprise a distinct and homogenous group with interests separate from other employees. Under such a new standard, a unit consisting solely of maintenance employees working on the second floor of a nursing home or nursing assistants but not other care givers presumably would be appropriate. As would a unit consisting solely of the trumpet players in an orchestra or wide receivers on a football team, regardless of the sentiments of the other workers with whom they share common interests.

All the more reason why Mr. Schaumber argues that the Board's wide solicitation of amicus briefs is not sufficient.  He asserts that the Board must rather follow the APA's rulemaking procedures, "including conducting cost benefit assessments and providing the public notice and a full and fair opportunity to comment."  Read the entire piece here.

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Posted on April 14, 2011 by Seth Borden

NLRB Chair Suggests Board Will Revisit Employer Obligations to Bargain Over Relocation

In a decision issued on March 31, 2011, National Labor Relations Board Chairman Wilma Liebman suggested that she would like the Board to require employers to provide information about relocation decisions to unions in a broader range of cases.  In Embarq Corp., 356 NLRB No. 125 (March 31, 2011), the Board unanimously concluded that the employer was not required to negotiate with a union over its decision to close a call center in Las Vegas and relocate the work to a call center in Florida. 

In deciding whether an employer's relocation decision is a mandatory subject of bargaining, the Board applies standards set forth in Dubuque Packing Co., 303 NLRB 386 (1991).  The General Counsel must first establish that the decision involves a relocation of unit work "unaccompanied by a basic change in the nature of the employer's operation."  If this prima facie burden is met, there are a number of ways by which the employer may rebut the presumption that it must bargain over the move.  One such way is if the employer can establish:

(1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.

In Embarq, the Board concluded that labor costs absolutely were a factor in the employer's decision, but that the employer had proven that "the Union could not have offered labor-cost concessions sufficient to alter the... decision to relocate."  As a result, the employer did not have to bargain over its decision and the related complaint allegations were dismissed.

Chairman Liebman agreed with the conclusion, and noted that because the issue was not a mandatory subject of bargaining, under existing Board law the employer was not obligated to provide the union with information regarding the relocation.  She wrote a separate concurring opinion, however, to highlight her view that:

neither the after-the-fact attempt to assess whether bargaining might have been successful, nor the attempt, years later, to restore the status quo in those cases where the Board finds a bargaining violation, are constructive for any of the parties concerned.

Instead Chairman Liebman would place the initial burden on employers at the time of the decision to justify the decision.  The Chairman would require employers to timely notify unions whether or not a relocation plan turns on labor costs; to explain to the union the basis for any non-labor-cost move; and, to provide information to the union regarding any labor-cost savings.  In the Embarq case, no party asked the Board to revisit any of these issues.  Still, after explaining her thoughts, in concluding her opinion, the Chairman notes:

...in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information.

Unionized employers contemplating a relocation of work any time soon would be well-served to give this concurring opinion careful thought.

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Posted on April 14, 2011 by Seth Borden

Politico: Labor Leaders "Furious" With President Obama

Apparently Rep. Paul Ryan (R-WI) was more generous than some in expressing only "disappointment" with President Obama yesterday.  Ben Smith and John Bresnahan report at Politico that the President and Senate Majority Leader Harry Reid (D-NV) were greeted with rage at a private meeting with the AFL-CIO's Executive Board.  From Politico:

Furious union presidents complained about budget cuts, a new trade agreement and what some view as their abandonment, even by their typically reliable allies among Senate Democrats.

“Now, not only are we getting screwed by the Republicans but the Democrats are doing it too,” said one union official, characterizing the mood at a summit of labor leaders who are worried that Democrats seem unlikely to go to the mat for them as an election year approaches.

Presidents of several unions and an AFL-CIO spokesman declined to repeat their private criticism to a reporter Tuesday, a sign that labor feels it must still try to maintain a relationship with the Democratic Party, even if it’s deeply troubled . With Republicans increasingly shifting from private antagonism toward open war with organized labor, unreliable Democratic allies are the only allies the movement has, and it remains unclear whether disappointments will dampen enthusiasm among union acvists and voters in the 2012 elections.

Read the entire piece here.

More commentary and resources:

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Posted on April 11, 2011 by Seth Borden

NLRB Set to Issue Complaint Arising Out of Employee Twitter Comment

In a vigorous dissent to the 2007 Board decision, Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007), current Chairman Wilma Liebman declared:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

In the latest example of the National Labor Relations Board's efforts in this regard, various sources are reporting that the Regional Office for Region 2 is prepared to proceed with a case against a publisher for maintaining a social media policy which it alleges unlawfully restricted an employee's use of Twitter to criticize the employer.   The New York Times reports, and theunion representing the employee confirms, that the Regional Office has notified the parties that, absent settlement, it will be issuing a complaint.  Per the Times: 

The board asserts that the company’s Reuters news division violated the reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that said, “One way to make this the best place to work is to deal honestly with Guild members.”

The author of the post, Deborah Zabarenko, the agency’s environmental reporter in Washington and the head of the Newspaper Guild at Reuters, sent that to a company Twitter address after a supervisor had invited employees to send postings about how to make Reuters the best place to work.

What is unclear from the NYT report is that the Twitter posting was public -- and not a "DM," or private "Direct Message" in Twitter parlance.  Labor attorney Eric B. Meyer has posted this screen cap of how the message appeared in her employer's Twitter feed:

While we have not yet seen any draft or intended complaint, the Times account suggests that the employee was not actually disciplined.  Accordingly, it would seem that the Board is alleging that the employee was chilled in the exercise of her rights under the Act by her supervisor's alleged phone call to her and/or the mere maintenance of an allegedly "over broad" social media policy.  

The union which filed the ULP charge likewise suggests that the complaint would allege the employer violated the law by both:

  • Illegally implementing restrictions on employees’ use of social media that would chill federally protected speech about working conditions (a violation of Section 8(a)1).

  • Applying the illegal Twitter policy to a Guild-represented employee (another 8(a)1 violation). 

While the more widely discussed American Medical Response case involved an employee fired for a Facebook posting about her supervisor, the more recent Student Transport of America case alleged that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" a specific social media policy in its employee handbook.  There was no actual discipline imposed by the employer in the latter case.  Both cases settled  -- Student Transport prior to the issuance of a complaint.

The union reports the NLRB's threatened complaint in this case covers significant issues regarding the parties' collective-bargaining negotiations -- of far broader import than a single Tweet by an employee.  Indeed, the union describes the complaint as "massive."  As a result, the seemingly relatively minor Twitter allegations may be settled out, robbing us again of a definitive Board Decision and Order on these issues.  But at this rate, it won't be long before another social media charge is taken up for further consideration.

More commentary and resources:

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Posted on April 11, 2011 by Seth Borden

No Joke: NLRB Chairman Giving "Active Consideration" to Rulemaking For Quicker Elections

This past April Fool's Day, labor relations consultant Phil Wilson raised eyebrows and heart rates with his gag e-mail announcing that the National Labor Relations Board had adopted implemented a new 5-day timetable for union representation elections.  Our post the next day:

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

We may soon see how distant "not so distant" is.  At Wednesday's hearing before a subcommittee of the House Committee on Appropriations, Board Chairman Wilma Liebman acknowledged the Board is considering engaging in rulemaking to shorten the time frame from the filing of a representation petition to the conduct of an election.  As reported by the Chamber of Commerce's NLRB Insight blog:

Perhaps the most interesting revelation came when Rep. Jack Kingston (R-GA) asked Chairman Liebman about recent comments by Member Pearce regarding "quick snap" elections. Rep. Kingston's comments were likely referring to comments Member Pearce made at a conference at Suffolk University Law School in October. As reported by the Daily Labor Report (BNA), Member Pearce said that the Board must seek to hold an election as soon as possible after a petition is filed and that he found the system used in some parts of Canada, where elections are held in as little as 5 to 10 days, "intriguing."

In response, Chairman Liebman noted that while the current median time for elections is 38 days, the Board is giving "active consideration" to conducting rulemaking in this area and that the Board was looking at the various components that are part of the current secret ballot election process. In particular, the Board is considering whether these components are still working and necessary or whether they detract from the effectiveness of conducting elections.

Just a week before, the Chairman told NPR that the current NLRB election process is too long and favors management.  During the past few years, proponents of labor law reform like Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA) have advocated a shorter election period.

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Posted on April 7, 2011 by Seth Borden

NLRB Officials Appear Before House Appropriations Subcommittee, Defend Request For Increased Funding

While the broader Congress continued to wrestle with extending continued funding for the federal government in FY 2011, a subcommittee of the House Committee on Appropriations on Wednesday held a Budget Hearing regarding the National Labor Relations Board's budget.   Board Chairman Wilma Liebman and Acting General Counsel Lafe Solomon were the witnesses who appeared before the Subcommittee. 

As we noted in a post earlier this week, the Board's budget has recently been drawing increased attention.  H.R. 1, the Full-Year Continuing Appropriations Act  (page 303, lines 17-19) would cut approximately $50 million from the agency's remaining budget for this year.  The Chairman and AGC have previously argued that this might force a 55-day furlough of Board staff.  This hearing, however, was focused on the Board's FY 2012 requested budget, which seeks an increase to $287.7 million.

At Wednesday's hearing, Chairman Liebman's submitted testimony included her report that over the past decade the NLRB has streamlined operations, cutting Board-side staff by nearly 25% and reducing the number of active Administrative Law Judges from 60 to 40.  On the heels of this decline in resources, Liebman noted:

Meanwhile, case intake has crept up after years of decline. At the ALJ level, case intake was up almost 7% in 2010 from the prior fiscal year and our trial backlog – cases docketed and awaiting trial – was up 5.6%. This Agency clearly still has an important role to play in the nation’s economy and we need adequate resources to carry out our statutory responsibilities.

In his prepared testimony, the Acting GC asserted the importance of the $4.3 million in increased funding the Board seeks for FY 2012, but also explained:

We are also in the process of studying how, using our present and future technological advances, the Agency could work in a more efficient and cost-effective manner. To this end, Chairman Liebman and I have created an Agency-wide work group, including representatives from our Regional Offices, Headquarters, and our employee unions. We have instructed this group to do a comprehensive assessment of the Agency's structure, processes, and footprint and to make recommendations to us by the end of this fiscal year of options for changes that we should consider to improve our service to the public and use taxpayer money effectively, while at the same time continuing to carry out our statutory mandate. We are also mindful, however, that structural changes take time to implement successfully, including time to have meaningful consultations with our stakeholders.

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Posted on April 4, 2011 by Seth Borden

Appropriations to Hold Budget Hearing on National Labor Relations Board on Wednesday

National Labor Relations Board Chairman Wilma Liebman and Acting General Counsel Lafe Solomon head to Capitol Hill this week to appear before a subcommittee of the House Committee on Appropriations.  On Wednesday, April 6, 2011, the Subcommittee for Labor, Health & Human Services, Education and Related Agencies will hold a Budget Hearing, with Chairman Liebman and AGC Solomon as the listed witnesses. 

While these hearings tend to be fairly routine in nature, the Board's budget has recently been drawing increased attention.  Back on February 18th, National Labor Relations Board Chairman Wilma B. Liebman and Acting General Counsel Lafe Solomon issued a statement in response to the proposed cuts to the agency’s budget in H.R. 1, the Full-Year Continuing Appropriations Act  (page 303, lines 17-19).  While an amendment to de-fund the Board entirely had just failed the day before, Chairman Liebman and AGC Solomon asserted the approved cuts might still force a substantial agency shut-down.  The House Committee on Education and the Workforce subsequently requested that the Board provide information in support of this assertion, and also regarding the later disclosure that the Board had run Google ads promoting union organizing. 

The Committee on Appropriations certainly has a differing focus from the Committee on Education and the Workforce, but we are certain to see some overlap at Wednesday's hearing.  Or...we should say "read" some overlap, as the hearing is not scheduled to be webcast.

The Subcommittee for Labor, Health & Human Services, Education and Related Agencies is chaired by Rep. Dennis Rehberg (R-MT).  Its members are Ranking Member Rep. Rosa DeLauro (D-CT), Reps. Jerry Lewis (R-CA), Rodney Alexander (R-LA), Jack Kingston (R-GA), Kay Granger (R-TX), Mike Simpson (R-ID), Jeff Flake (R-AZ), Cynthia Lummis (R-WY), Nita Lowey (D-NY), Jesse Jackson Jr. (D-IL), Lucille Roybal-Allard (D-CA), and Barbara Lee (D-CA).

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Posted on April 2, 2011 by Seth Borden

Labor "Troublemakers' School" Underway Today in Wisconsin

Early last month, Politico's Ben Stein noted on his blog that recent events in Wisconsin had mobilized the labor movement in a way likely to have greater impact in the 2012 electoral cycle than previously anticipated.  They may have more immediate, direct impact on union activity in the state -- involving both public and private employers -- long before that. 

Today in Madison, Labor Notes is conducting a "Troublemakers School."   Its goal is described thus:

How do we build on the protests, protect what we have—and lay the foundation to fight for more? Led by experienced labor activists, our workshops will explore strategies to fight back and give you the hands-on skills to make it happen.

The idea is not just to talk about problems for a day and then go home, but to come up with specific plans in some areas, so that we can go out Monday morning and get to work organizing to build on what we've done. There will be ample time to assess what we've gained through our unprecedented activism of the last month.

A flier announcing the event describes course offerings further, including:

  • Public Sector Workers and How to Fight Back (twice)
  • Organizing Contract Campaigns in the Great Recession
  • Labor-Campus-Community Solidarity
  • Organizing: Nontraditional Approaches
  • Immigration, Racism, Labor Movement History
  • Art for Mobilization
  • Media Engagement and Your Local
  • Econ 101: Is Capitalism Working for Workers?
  • Workers: Know Your Rights!
  • Labor’s Electoral Strategy: Are We Getting What We Paid For?

Before the event began on Friday, April 1st, the Labor Notes website had already announced that the Saturday sessions were booked full, and encouraged people to attend earlier events.

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Posted on April 2, 2011 by Seth Borden

Proposed Change to NLRB Election Procedure? Just Kidding!

Some of you may have received an e-mail alert yesterday from labor consultant Phil Wilson at LRI with the Subject line “Breaking News: NLRB Implements 5-Day Elections.” This was enough to raise the heart rates of many labor professionals around the country. The body of the email explained that the NLRB’s Representation Casehandling Manual was being changed “to shrink the target date for RC elections from the current 42-day period down to a 5-day target.”  The email’s “link” to the new manual told readers that it was all an April Fool’s trick from LRI. Management and its labor advisors breathed a sigh of relief. But was that relief premature?

The idea of quicker elections is not new. Critics of current Board procedure often complain that the 42 day election period is too long and allows management to intimidate voters.  Expedited elections were one of many alternatives to EFCA put forth by proponents of labor law reform. Senator Tom Harkin (D-IA) floated a 21 day election deadline as a potential compromise to EFCA. Former NLRB Chairman William Gould has also advocated a 21 day election period. And former Senator Arlen Specter (D-PA) often advocated a shorter election period as one component of labor law reform.

As the debate over EFCA cooled, the number of people discussing changes to the NLRB election process had dwindled. But it has not vanished completely. Just a day before LRI's gag e-mail, NLRB Chairman Wilma Liebman said in an interview that the current NLRB election process is too long and favors management.

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

 

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