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LABOR BOARD ENDORSES DOUBLE STANDARD IN PRE-ELECTION CONDUCT


LABOR BOARD ENDORSES DOUBLE STANDARD IN UNION REPRESENTATION ELECTION CAMPAIGNS  

 

In the waning days of Member Becker’s term on the National Labor Relations Board, the Board majority decided a case based on the underlying proposition that unions and employers are to be held to different standards when assessing the legality of pre-election literature and tactics. Enterprise Leasing Company and Teamsters Local 391, December 29, 2011.  

 

Teamsters Local 391 was seeking to represent the employees of an Enterprise Leasing operation.  A union supporter took a photograph of another employee with seven other employees of Enterprise in a nearby food court.  Subsequently, the photograph was printed on a flyer surrounding the words “Yes. Everybody can make the right choice?”  The other side of the flyer said the employees should vote for the Union to be their voice for better pay, better benefits and better treatment.”  

 

After losing the election, 44 to 41, with two challenged ballots, Enterprise filed an objection which alleged that one of the employees in the photograph had not agreed to permit his picture to be used on the union flyer and, therefore, there was a misperception created that the Union had the support of the employee and that the employee had been unlawfully subjected to coercion by being publically identified as a union supporter.  This, the employer asserted, was enough to warrant a new election, especially in light of the closeness of the vote.  

 

In finding that the flyer, at most, implied that the Union had the employee’s permission to use the photograph, a majority of the Board majority consisting of Chairman Pearce and Member Becker held that the other employees could easily recognize the flyer as campaign propaganda and, therefore, the election process had not been tainted.  The employer was not entitled to a rerun election. Citing a 2001 case that was enforced by the Third Circuit Court of Appeals, Allegheny Ludlum, Member Hayes, in his dissent, argued that the established rule that an employer cannot use the image of an employee in campaign material without the employee’s consent should be applied equally to the union in this case.  Elemental fairness, he reasoned, required the equal application of the rule to both the employer and union. In response, the majority cited a 1969 Fifth Circuit Court of Appeals decision in which the court wrote: “An employer in an unorganized plant, with his almost absolute control over employment, wages, and working conditions, occupies a totally different position in a representation contest than a union, which is merely an outsider seeking entrance to the plant.”  

 

So, for this Labor Board, there are two standards.  Because one of the objectives of the National Labor Relations Act is to equalize power in the workplace and to achieve this objective of the law, according to the current majority, one side should be permitted to spread misperceptions of support and coerce employees while the other should not.  Machiavelli cheers.  

 

The lesson: Do what you can keep a union from gaining sufficient support to compel a representation election in the first place by having a well-crafted union-free strategy with specifically designed policies and training.  If a union gets the support necessary to have an election, this Labor Board will not judge the pre-election campaign conduct of an employer and a union by the same rules, to the disadvantage of the employer. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

OBAMA WAGES WAR ON BEHALF OF LABOR UNIONS


OBAMA WAGES WAR ON BEHALF OF LABOR UNIONS

 

The good news is that the National Labor Relations Board has postponed the date by which employers must post an Employee Rights Under the NLRA poster from January 15 to April 30.  Of course, the postponement was at the request of the federal judge hearing the complaint brought by various employer groups to have the posting enjoined completely.

 

The bad news is that Obama continues to take an extreme pro-labor position when it comes to the membership of the NLRB.  The Constitution requires that presidential appointments to the NLRB must be confirmed by the Senate.  A president may by-pass the process by appointing the nominee to the position for a term that must expire at the end of the next Senate session.  A president usually does this when he believes that his nominee will not be able to garner the approval of the 60 votes necessary to end a filibuster.

 

Last Spring, Obama, unable to get his appointment of Craig Becker through the Senate, used the recess-appointment process made him a Board member which would have an expiration date of the adjournment of the Senate at the end of the calendar year.  Becker was the first appointee to the NLRB in history who came directly from an in-house position with a labor union, in this case the Service Employees International Union.  At about that time, the President’s nomination of Mark Pearce (D) and Brian Hayes (R) were confirmed.

 

With a three to one majority of pro-labor members on the Board, the NLRB has issued rules, proposed rules and made decisions that have helped union organizing and increased the power of labor unions.  With the expiration of Chairman Liebman’s (D) term in August and the expiration of Becker’s recess appointment at the end of the calendar year, the Board was left with only two members and, due to a 2010 decision by the U.S. Supreme Court, the Board became unable to decide cases or issue new rules.

 

On December 14, 2011, Obama announced his intent to nominate Sharon Block and Richard Griffin to the Board.  On December 19, 2011, all 47 Senate Republicans sent a letter to the President asking him not to make Block and Griffin recess appointments because to do so would violate the long history of appointments being negotiated between the Administration and the Senate to come up with individuals at least palatable to both parties.  On December 19, 2011, 11 Republican Senators also wrote Obama asking that he withdraw the nomination of acting General Counsel of the NLRB,Lafe Soloman, to the full position of General Counsel. 

 

On January 4, 2012, Obama officially ignored the Senate Republicans and made recess appointments of both Block and Griffin (along with Terence Flynn (R)).  If the appointments hold, the Board will be at full strength with two Republican (presumably pro-business) and three Democratic (presumably pro-labor) members.

 

Both Block and Griffin can be expected to pick up right where Leibman and Becker left off since they are of the same philosophical cloth.  Block came from the Department of Labor where she had been the Deputy Assistant Secretary for Congressional Affairs.  Prior to that, Block had been the Senior Labor and Employment Counsel for the Senate HELP Committee where she worked for the late Senator Edward Kennedy.  Reports have been circulating  that Block was the center of the current proposal by the DOL to severely restrict the definition of “advice” for the purposes of required reporting to the DOL of union prevention activities.  Under the proposed rule change, virtually every non-employee, including attorneys, who provides assistance to a company to preserve its union-free workforce would have to report all financial payments and arrangements for those activities to the DOL for publication on the DOL website.  In the words of Secretary of Labor Hilda Solis, “she will be sorely missed” by the Department of Labor.  Solis supported the Employee Free Choice Act and is one of the most vocal advocates in government for organized labor.

 

Griffin is the second person to be placed on the NLRB directly from a labor union (Becker being the first).  Griffin was the General Counsel for the International Union of Operating Engineers (IUOE).  Since 1994, he also has been on the board of directors for the AFL-CIO Lawyers Coordinating Committee. 

 

Actions have already been filed to block these recess appointments, as well as that for the head of the Consumer Financial Protection Bureau.  The challenges have been on the basis that the Senate technically has not gone into recess, because every three days since Christmas a senator has appeared in the chamber to gavel a session into order and, with no business to conduct, within a minute, gavels the session closed.  Technically, the filings assert, because the Senate is not in recess, no recess appointments can be made. 

 

Of course, if the suits are successful and the appointments are held to be invalid because the Senate is not in recess, will Craig Becker still be a member?

 

Stay tuned.

 

At a minimum, businesses cannot expect any relief from the barrage of pro-union actions and decisions by the NLRB, particularly those that assist unions in their organizing efforts.  Since one of the changes that has already occurred may cut the time between a petition and election by as much as half, employers who wish to remain union-free must continue to hone and implement their Rapid Response Plans

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
 
 
 

James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.