Posted on June 29, 2011 by Seth Borden

Professor Issues New Study Purportedly in Support of "Quickie" Elections

On the heels of the National Labor Relations Board's proposed rulemaking to shorten the time period between the filing of a representation petition and the holding of an election, Cornell Professor Kate Bronfenbrenner has issued a new study entitled "The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence."  Along with Columbia professor, Dr. Dorian Warren, Professor Bronfenbrenner has published the eight page "working paper" in support of the Board's effort to drastically limit the pre-election campaign period.

Like the Professor's earlier works in support of similar efforts, like the Employee Free Choice Act, the study is unabashedly partisan.  As in her earlier works, "No Holds Barred: The Intensification of Employer Opposition to Organizing." and "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," the Professor assumes all allegations of unfair labor practices to have actually occurred, and conflates any and all legitimate employer response to organizing with unlawful coercion and intimidation.  Again, the Professor suggests here that all of the anecdotal data studied came exclusively from interviews with union organizers -- yet there is no effort to discount the obvious biases likely held by this self-interested population. 

No matter.  This study -- like those before it -- is likely to be widely cited by proponents of the Board's current effort to eliminate lawful employer speech in response to union organizing efforts.  The paper's introduction may provide a telling window into where supporters would like to see the time limits drawn:

Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition.  But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed.  Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay."

More cases being held within 21-30 days is "some progress," but bottom line -- proponents of the Board's proposed measures still consider more than 20 days to be "delay."

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Posted on June 25, 2011 by Seth Borden

Rep. Noem (R-SD) Introduces Bill to Clarify Lack of NLRB Jurisdiction Over Sovereign Indian Tribes

On Thursday, Rep. Kristi Noem, (R-SD), introduced legislation to clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty. The bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335) was immediately referred to committee. The text is not yet available from the Government Printing Office.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed.  Rep. Noem has announced that this bill is intended to reverse that decision, but also suggests that beyond the jurisdictional issue, it is intended to limit labor's influence. A statement accompanying her introduction of the bill asserts:

The legislation stands to defend tribal sovereignty and promote economic opportunities on reservations lands by eliminating ambiguity in existing federal law.

“As a matter of sovereignty, the tribes don’t need big labor meddling in their affairs,” said Rep. Noem. “By removing this ambiguity in the law we can promote economic development on tribal land because businesses, large and small, need more certainty before they can grow.”

The bill is co-sponsored by five other Republicans, including House Health, Education, Labor & Pensions Committee Chair Rep. John Kline (R-MN) and Presidential candidate Rep. Ron Paul (R-TX).

More commentary and resources:

 

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Posted on June 22, 2011 by Brennan W. Bolt

NLRB to Weigh In On Arbitration Agreements Prohibiting Class Claims

Just two months after the Supreme Court's decision in AT&T Mobility v. Concepcion, in which the Court held that the use of class arbitration waivers in consumer contracts are permissible even when they conflict with state law, the National Labor Relations Board has invited interested parties to file briefs regarding whether an employer violates Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing an arbitration agreement with its employees that denies the arbitrator any authority to fashion the proceeding as a class or collective action.  On June 16, 2011, the Board issued a Notice and Invitation to File Briefs on this issue in the case of D. R. Horton, Inc., Case No. 12-CA-25764.

Exactly one year earlier, on June 16, 2010, Ronald Meisburg, the NLRB's General Counsel at the time, issued a guideline memorandum for unfair labor practice charges involving employers' mandatory arbitration policies. In the memorandum, the General Counsel concluded that so long as the arbitration agreement does not require the arbitration of claims under the National Labor Relations Act:

[e]mployers...may require individual employees to sign a...waiver of their right to file a class or collective claim without per se violating the Act. So long as the wording of these agreements makes clear to employees that their right to act concertedly to challenge these agreements by pursuing class and collective claims will not be subject to discipline or retaliation by the employer, and that those rights— consistent with Section 7—are preserved, no violation of the Act will be found.

However, in the Board's recent Notice in the D. R. Horton  case, the NLRB asks interested amici to file a brief addressing the following issue:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

As such, it appears that the Board may not agree with the former General Counsel's analysis, and may find that arbitration agreements precluding class or collective action arbitrations violate Section 8(a)(1) of the Act.

The deadline for amici briefs is July 20, 2011. The parties may then file responsive briefs on or before August 3, 2011.

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Posted on June 21, 2011 by Seth Borden

More on NLRB's Proposal to Expedite Union Representation Elections

As reported earlier, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections.  While legislators were unable to eliminate the time between petition and representation election entirely via the failed push for the Employee Free Choice Act, there have consistently been proponents of shortening this period, including current Chairman Wilma Liebman, Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA).

While official publication of the Notice is expected tomorrow, there are numerous related resources online at the Board's website including a red-lined version of the proposed rule changes, a Fact Sheet and a "summary of the main changes" being contemplated to the representation process.

Regarding these significant proposed changes, reflecting comments she has made in the past, Chairman Liebman today explained:

One of the most important duties of the National Labor Relations Board is conducting secret-ballot elections to determine whether employees want to be represented by a labor union.  Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.  Under the law, as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases. 

Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible.  One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election.  But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.  It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.

Member Brian Hayes has dissented from the Board's 3-1 decision to propose these changes at this time.   In no uncertain terms, Member Hayes sets forth his position thus:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. For my part at least, I can and do dissent.

The Board will hold a public hearing on the proposal on July 18 (and possibly 19); and is soliciting written comment for at least a 60-day period.  Employers should seriously consider participating in this process to the fullest extent possible.

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Posted on June 21, 2011 by Brennan W. Bolt

NLRB To Issue Proposed Rulemaking for "Quickie" Elections

As has been expected, for quite some time now, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections. According to the NLRB's fact sheet, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, these proposed amendments to the NLRB's Rules and Regulations will have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board's proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties' ability to request review of a Regional Director's decision prior to the election.

Specifically, the proposed rules will require the Regional Director to schedule the pre-election hearing to begin within seven days after a hearing notice is served. By the start of the hearing, the employer must state its position on election-related issues that it intends to raise at the hearing, including the Board's jurisdiction; the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The union will then respond to the positions taken by the employer. After hearing the parties' positions, the hearing officer will identify their disagreements and accept evidence only on genuine issues of material fact affecting those issues. However, and most importantly, unless the issues affect 20 percent or more of the unit, the litigation of those disputes will be deferred until after the election. Moreover, even if the unit issues are litigated prior to the election, the parties cannot request review from the Board prior to the election.

Once the Regional Director issues his or her direction of election, the employer will have two days, as compared to seven days now, to provide a final list of eligible voters to the union (the Excelsior list). Current rules and regulations only require the employer to provide names and addresses, but the new rules will require the employer to list phone numbers and email addresses on the Excelsior list when available.

The proposed rules also seek to take advantage of modern communication technologies. In addition to providing email addresses on the voter eligibility list, the new rules will allow petitioners to file election petitions electronically and for the NLRB to provide notices directly to employees through email when addresses are available.

The Board invites comments on its proposed rulemaking in two ways. First, the Board is holding a public hearing scheduled for July 18 and possibly July 19. Second, it is providing a 60-day period for written comments, with 14 days for replies, that may be submitted electronically though Regulations.gov or by mail to the Board's Washington D.C. headquarters. As with the Department of Labor's proposed revised interpretations of the Labor-Management Report and Disclosure Act issued today, employers are encouraged to assess the potential impact of these proposed changes on their operations; and to consider submitting comment.

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Posted on June 20, 2011 by Brennan W. Bolt

DOL Seeks to Revise Employer and Labor Relations Consultants' Reporting Requirements

On June 21, 2011, the Department of Labor’s Office of Labor-Management Standards (OLMS) will publish proposed revisions to its interpretation of the Labor-Management Report and Disclosure Act of 1959 (LMRDA), which will expand greatly what employers and their labor relations consultants must report to the Department of Labor.

 

The LMRDA was enacted by Congress in 1959 for the purpose of shedding light on labor-management relations, governance, and management. Its provisions include financial reporting and disclosure requirements for labor organizations, their officers and employees, employers, labor relations consultants, and surety companies. Section 203(a) and (b) of the LMRDA require employers and their labor relations consultants to report any agreement or arrangement between them where the consultant will undertake activities, directly or indirectly, to persuade employees to exercise or not to exercise their right to organize and bargain collectively.

However, Section 203(c) exempts from these reporting requirements “the services of such [consultant] by reason of his giving or agreeing to give advice to such employer…” Section 204 also exempts certain attorney-client communications from reporting, which is defined as, “ information which was lawfully communicated to [an]…attorney by any of his clients in the course of a legitimate attorney-client relationship.”

At issue under the DOL’s proposed revisions are its interpretation of the term “advice” in Section 203(c). With exception of a brief period in 2001, since 1962 the DOL has interpreted "advice" to exclude an employer-consultant agreement where the consultant has no direct contact with employees and limits his activity to providing the employer and its management team with advice or materials for use in persuading employees that the employer has the right to accept or reject.

In the DOL's proposed revisions, the application of the “advice” exemption under Section 203(c) depends on whether an activity can be considered giving “advice,” meaning an oral or written recommendation regarding a decision or a course of conduct, as opposed to engaging in direct or indirect persuasion of employees. Specifically, the proposed revised interpretation will state:

With respect to persuader agreements or arrangements, “advice" means on oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.

According the DOL's notice, under this revised interpretation reportable agreements will include those in which a consultant agrees to plan or orchestrate a campaign for an employer to avoid or counter union organizing. It will also include any planning, directing, or coordinating of the activities of management and supervisors or the providing of persuader material to them for dissemination or distribution to employees. Moreover, drafting or implementing policies for the employer designed to directly or indirectly persuade employees will also trigger a reporting obligation. 

The proposed revisions to the regulations and forms would combine to impose extensive and sweeping new reporting obligations on employers who would utilize the expertise of outside consultants, attorneys or other professionals when addressing labor relations issues.  If the “advice exception” is indeed narrowed as proposed in the document being posted tomorrow, employers will need to report the details of these third-party relationships regardless of whether the third-parties have any contact with employees.  Employers may choose to address labor relations issues by themselves, instead of engaging experienced outsiders to assist and risking additional extensive reporting obligations.  Likewise, outside professionals may turn their talents and experience to other pursuits, rather than assuming the risk of the extensive additional disclosure.

The DOL is requesting comments to its proposed revised interpretations, which will be due 60 days after publication.  Employers would be wise to revisit any existing relationships that might fall within the broad scope of the proposed rule, assess its potential impact and to consider submitting comment.

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Posted on June 16, 2011 by Brennan W. Bolt

Public Interest Group and 34 Arizona Employees Seek to Intervene in NLRB's Lawsuit Against Arizona

On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Board's Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board's preemption theory has significant merit under these circumstances.  Other witnesses at that hearing encouraged that this dispute 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 June 14, 2011 by Seth Borden

Media Round-Up: NLRB Complaint Against Boeing

 

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Posted on June 7, 2011 by Seth Borden

House Subcommittee Hearing Looks at President Obama's Executive Order Regarding PLA's for Government Construction Contracts

Last Friday, a subcommittee of the House Committee on Oversight & Government Reform held a hearing entitled "H.R. 735 And Project Labor Agreements: Restoring Competition & Neutrality To Gov't Construction Projects".  The bill number identified in the hearing title, introduced earlier this year by  Rep. John Sullivan (R-OK), is the Government Neutrality in Contracting Act (H.R. 735).   This and a similar bill (S. 119) would largely invalidate President Obama's Executive Order 13502. 

That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Witnesses at Friday's hearing included Daniel Gordon, the Administrator of OMB's Office of Federal Procurement Policy; Susan Brita, Deputy Administrator of the GSA; Maurice Baskin, Esq., of Venable LLP; David Tuerck, Executive Director of the Beacon Hill Institute; Kirby Wu, of Wu & Associates; and Mike Kennedy, Esq., of the Associated General Contractors of America.

The prepared statements and submissions of these witnesses are linked above, and the video of the hearing is available at the Committee's website.

More resources & information:

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Posted on June 7, 2011 by Seth Borden

ALJ Finds Employer Alternative Dispute Resolution Program in Violation of NLRA

Last week in Supply Technologies, LLC, Case No. 18-CA-19587 (May 31, 2011), Administrative Law Judge George Alemán found that the employer’s implementation of an alternative dispute resolution program unlawfully interfered with its employees’ right of access to the Board’s processes under Section 7 of the National Labor Relations Act.

The decision noted that the alternative dispute program did not explicitly restrict employees’ Section 7 activity, but a policy may still violate the NLRA if "employees would reasonably construe the language of the rule or policy to prohibit Section 7 activity." In drawing his conclusion the judge was required to "give the rule or policy in question a reasonable reading, and…refrain from reading particular phrases in isolation or presuming improper interference withemployee rights."

In this particular case, the employer's documents explained that the program's grievance arbitration procedure was to be the sole method for employees to "resolve all of their disputes, controversies, and claims," including "claims for discrimination, harassment, or retaliation" -- with the exception of workers compensation claims, unemployment claims, and criminal claims. Although the program provided that an employee could "still file a charge or complaint with a government agency" and was "free to cooperate with a government agency that might be investigating a charge or complaint," the program required the employee to "waive[] any right [he/she] might have otherwise had to any remedy that the agency might try to obtain on [his/her] behalf (to the extent this is permissible under law.)"

Finding these statements conflicting and ambiguous, the ALJ held that the program’s waiver requirement rendered meaningless whatever rights employees purportedly had under the program to file a charge with the NLRB. While there appeared to be some effort to include a disclaimer in the parenthetical quoted above, this language did not appear in other related documents setting forth the terms of the program.  As a result, the ALJ resolved the ambiguities against the employer as promulgator of the program, and determined that it had a chilling effect on employees’ willingness to exercise their Section 7 rights to file a charge with the Board.

Accordingly, employers should be mindful when creating and/or reviewing alternative dispute programs to ensure that they do not expressly limit employees’ right of access to the NLRB and its processes.  Moreover, they should eliminate any ambiguity or inconsistencies in their applications, forms, acknowledgments or other related documents by which employees might reasonably construe the program to prohibit Section 7 activity.

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Posted on June 6, 2011 by Seth Borden

Regional Office Refers NFL Charge to Division of Advice in D.C.

Liz Mullen of the Sports Business Journal (subscription) is reporting today that Region 2 of the National Labor Relations Board has sent the unfair labor practice charge filed against the NFLPA by the NFL to the Division of Advice in Washington, D.C. 

Back in February, the NFL owners filed the charge (subsequently amended) against the NFLPA, alleging that the union had failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act.   The text of the charge, filed at the Regional Office in New York City, accused the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."  The charge described the alleged misconduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct  indicating a lack of "intent to reach agreement through good faith collective bargaining.  Finally, the charge spelled out the heart of the NFL's concern -- the NFLPA's strategy of coordinating a decertification in order to obtain a strategic advantage in their negotiations -- which is now also at the heart of the antitrust litigation playing out in the Court of Appeals for the Eighth Circuit.

The Region's referral to the Division of Advice is not terribly unique, especially given the stakes involved here.  The Division of Advice, under the auspices of the Office of the General Counsel in Washington, D.C., consists of three branches: The Regional Advice Branch, the Injunction Litigation Branch, and the Legal Research & Policy Planning Branch.  This matter is obviously now before the Regional Advice Branch which will research, analyze and provide "advice" to the General Counsel and the Regional Office with respect to whether the charge is worth pursuing.  Following this review -- perhaps a few weeks or months hence -- the Division will likely issue an Advice Memorandum to the Regional Director recommending either issuance of a complaint or dismissal of the charge absent withdrawal. 

As a practical matter, in the instant dispute between the NFL and the NFLPA, this is not likely to have much impact.  We are likely to see an Eighth Circuit decision in the court litigation before we see the results of this review by Advice.  It certainly does not hurt the owners' position in ongoing negotiations in that the PR of an outright dismissal by the Regional Office might have had an impact on their leverage.  And, to some extent, the NLRB's referral to Advice does undermine the certainty of District Court Judge Susan Nelson's conclusions about what the Board was likely to do when she granted the players an injunction against the owners' lockout back in late April.  But this fairly routine decision by the Regional Office certainly did not shift any significant leverage toward one side or the other in this ongoing legal battle.

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Posted on June 3, 2011 by Seth Borden

U.S. Department of Labor Seeks Public Comment on Regulation Reform via New Webpage

The U.S. Department of Labor yesterday announced a one-month period for public comment on a preliminary plan to revise department regulations. The Department has established a special webpage for members of the public to provide feedback on its "Preliminary Plan for Retrospective Analysis of Existing Rules".  This online tool is part of the Department's compliance with Executive Order 13563, which called for federal agencies to detail how they will review existing significant regulations to identify whether they may be made more effective or less burdensome.

As explained by the DOL's website:

Executive Order 13563 provides several guiding principles for achieving that balance and urges that regulations:

  • take into account costs and benefits to society;

  • are developed in a manner that allows public participation;

  • are coordinated among agencies and simplified;

  • use the least burdensome methods to achieve regulatory goals; and

  • are based on the best available science.

The Executive Order also requires agencies to develop protocols for periodic review of significant regulations to determine whether they are outmoded, ineffective, insufficient, or excessively burdensome.

The comment area set up by DOL seeks public input before July 1, 2011 on the following categories:

  • Rules currently under consideration for retrospective analysis
  • Development of a strong, ongoing culture of retrospective analysis and strengthening internal review expertise Factors and processes that will be used in setting priorities
  • Plans for retrospective analysis, revisiting and revising rules and coordinating with other federal agencies
  • Metrics used to evaluate regulations, ensuring availability of data, and incorporation of experimental designs into retrospective

Comments may also be logged with the White House via a SlideShare page.

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Posted on June 2, 2011 by Seth Borden

House HELP Subcommittee Hearing Studies Union Corporate Campaigns and the NLRB

On May 26, 2011, the House Subcommittee on Health, Education, Labor & Pensions held a hearing entitled "Corporate Campaigns and the NLRB: The Impact of Union Pressure on Job Creation."  Subcommittee Chairman Rep. Phil Roe (R-TN) opened the hearing, defining "a corporate campaign" as a "union effort to disrupt an employer’s routine business" in order to put pressure on the employer to facilitate union organizing.  These campaigns often include coordinated tactics such as negative advertising, legal and regulatory complaints filed at government agencies, public relations and consumer communications, and appeals to political and religious leaders.  Rep. Roe noted the increasing popularity of this strategy and some related concerns thus:

Over the years the use of corporate campaigns has accelerated. According to one study, between 1974 and 1999, only 200 corporate campaigns were identified. Yet in 2005 it was estimated that between 15 and 20 corporate campaigns were underway at any given time. And recently the National Labor Relations Board has taken a number of steps to expand the arsenal of tactics available for a corporate campaign.

The board has removed bannering restrictions previously placed on boycotts of neutral employers. Employees of onsite contractors have been granted greater access to the property of the contracting employer connected to organizing activity. The board has also requested briefs that could allow even greater access to an employer’s property.

Testifying at the hearing were labor lawyer Jonathan Fritts, Esq., of Morgan Lewis; Chet Karnas, owner of Lone Sun Builders, Inc.; David Bego, CEO of Executive Management Services; and, UC Law Professor Catherine Fisk.  An archived webcast of the hearing is available here, and the prepared introductory testimony of each witness is here. 

For more on corporate campaigns, see these earlier blog posts and other resources:

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