NLRB Is Set to Rule in Favor of Unions Not Employees

I know most of you have to stiffle a yawn when you see a post about unions. Well you shouldn't! It is important stuff under the actions of the current administration. But I will try to keep this relatively brief. First a little background. The National Labor Relations Board (NLRB) is made up of 5 appointed members, 3 from the political party in power and the other 2 from the other party. Today that means the the NLRB is composed of 3 Democrat party appointees and 2 Republican. The actual number seated will depend on resignations, tenure of appointment (as in a recess appointment), and difficulty of getting appointees through the Senate approval process. During the Bush administration the Senate Democrats blocked a number of appointments so that NLRB was usually small in numbers. But they still decided on a number of cases.

One of these cases was that of Dana Corp. The issue at hand dealt with voluntary recognition of a union by management and whether employees had the right to contest that voluntary recognition by calling for a secret ballot election to decertify the union accepted by the company. The Bush-era NLRB said "yes" employees have that right and they altered the "bar to an election" that prohibited an election within one year of voluntary recognition. They said that EMPLOYEES may petition for an election. You can read the decision from the NLRB by clicking here for the write up.

This is a decision that  I personally agree with. In the world of union organizing the signing of authorization cards can be subject to acts of intimidation and people may be inclined to sign in order to save their kneecaps. Thus presentation of a bunch of cards with signatures may not accurately reflect the true feelings of the employees. Giving them a chance to vote on the union status will give you a more accurate test.

And that is the way things stand today. However, because the Bush-era NLRB was understaffed a Federal court declared that decisions made by that board were invalid and ordered the current NLRB to revisit those  (nearly 800) decisions. One of the first ones up is Dana Corp. And the early indications are that they will reverse the decision. They will declare that the voluntary recognition bar must stand and that if a union and management agree on the majority status of a union, and deem them to be the official representative of the employees, the employees will have no say in the process. For a great analysis of this and a story of personal experience in this read Jon Hyman's Card Check is Dead...Long Live Card Check.

What I find telling about this is that the NLRB is NOT about protecting the rights of employees, it is ALL about protecting the union organization. They are not interested in employees getting what is good for them, they are interested in protecting the status of the union, who through possible intimidation may be able to convince an employer that their employees would like to have that union. The unions know, as does the union-friendly NLRB, that if these situations are put to the test of an election they may lose because the true desire of the employees is expressed on the ballot and not on the authorization card. So the best way to prevent that is to take away the secret ballot election, much like EFCA was proposing.

So there you have it. The NLRB's first major decision will be one that is pro-union but ANTI-EMPLOYEE. So much for having your rights protected....

Update on EFCA: SEIU Rejects "Card" Signing: SAY WHAT???

According to an article in the LA Times (SEIU borrows business' anti-union tactics to fend off a rival) the SEIU, the Service Employees International Union, is rejecting exactly what they are supporting in the Employee Free Choice Act. The article states "...the union is urging federal officials to throw out petitions signed by tens of thousands of its own members who have asked to be represented by a rival upstart group." The article goes on to say " In lodging legal challenges to the roughly 80 petitions filed by its fledgling competitor, the SEIU has moved to block organizing elections at hospitals, clinics and nursing homes up and down the state. And it has used some of the same tactics that employers often use to thwart union drives."

Amazingly the SEIU, as the article states "One of the giant union's allegations echoes a key argument that corporate interests make against the proposed law, the Employee Free Choice Act: that labor activists can intimidate or mislead workers during organizing campaigns." Talk about being two-faced! The SEIU has turned to the NLRB and has charged the rival union with unfair labor practices (ULPs) and wants the petitions set aside. Yet Andy Stern, president of the SEIU, says this does not change his stance on EFCA. Sure, not as long as it will work for his benefit. But let it work against him and he is for using current labor law. Sounds like a good argument for not needing EFCA in the first place.

Read the article (link above) to get the full story, especially if you think EFCA is a good thing. This may help you decide otherwise.

A side note: Al Franken will be made the newest Senator next week. This will give the Democrats a philibuster proof majority. This is going to make it much more likely that the EFCA will be passed along with all the other pending legislation mentioned in yesterday's post. Read them and weep.

EFCA: Biden, Unions and Congress Start "The Dance"

The Employee Free Choice Act, popularily referred to as the "card check" bill was introduced into both houses of Congress on March 10th. Debate has started, but so far support has eroded for the bill in both the House of Representatives and the Senate. The bill’s fate increasingly hinges on Sens. Blanche L. Lincoln (D-Ark.) and Mary L. Landrieu (D-La.) — two wavering moderates who would love to dodge the controversy. But the White House has pulled out the big guns for support. Vice President Joe Biden appeared in front of an executive meeting of the AFL-CIO. He was very vocal in his support of EFCA. According to Politico.com "Vice President Joe Biden wasn’t exactly restrained in remarks to an AFL-CIO gathering in Miami last Thursday, saying, 'You all brought me to the dance a long time ago, and it’s time we start dancing.'"

The bill is significant. According to one study passage of the bill could eliminate over 600,000 jobs. Let me remind you of the provisions of the bill.

1. EFCA would eliminate the secret ballot election that is normally required for your employees to select a union, and replace it with a much less formal "card check" process that is controlled by the union and is secretive, selective, and susceptible to abuse and coercion.
   
2. Even more alarming are provisions in EFCA that would require so-called "interest arbitration" of the first contract once a union gets in. Under these provisions, if the first contract is not negotiated to conclusion between the parties within a relatively short 120-day period, the contract dispute would be referred to an arbitrator who would then determine the contract terms for a two-year period with no right of appeal.

Most of the attention has been focused on the first provision and there has been a backlash against it. Several states are even introducing legislation to preserve secret ballot elections in their states.

However, most labor negotiators that I know and have read about are more concerned with the second provision. Few first time contracts are negotiated in 6 months, much less 120 days. The failure to do so enforces an arbitrator designed contract, one that will not be in the best interest of the company.

I am playing "seer and soothesayer" and making a prediction. I predict we will see an attempt to "compromise" on the "card check" provision to make EFCA more palatable to the public while maintaining the more harmful "interest arbitration" provision.

I have written my Congressional representatives, both House and Senate, and expressed my opinion. I suggest you do the same. Guess we will have to see if President Obama is waiting to tap Joe Biden and cut in to dance with the AFL-CIO on this one. New Labor Secretary Hilda Solis has already been at the dance and has been filling in her dance card too.

Card Check, Email and Social Media: A Clash of Interests

If you have been reading these posts at all, you know by now that the Employee Free Choice Act (EFCA) contains a provision allowing unions to organize using a method referred to as "card check." Wikipedia defines card check "...as a method of organizing employees into a labor union in which employers enter into an agreement to recognize the unionization of its employees if a majority of employees in a bargaining unit sign authorization forms, or "cards". " What most people do not realize is that the signed "card" does not need to actually be a card, that is a holdover from the days when it actually was a card, back in the days when there was nothing like email and electronic signatures. Many experts feel today that union organization will be done in large part by use of email and to a lesser extent through the use of social media, such as FaceBook, MySpace and Twitter. Their recommendation to employers is to severly restrict the use of email to business only purposes and eliminate access to social media from work computers.

Unfortunately, this butts heads with the increasing trend of (primarily) younger workers using email and social media for personal communication throughout the day. In fact many recruiters are using social media for recruitment purposes. People access and read blogs throughout the day. Web 2.0 use is a mix of work and personal that becomes almost impossible to limit. If you try you may have push back from younger workers who complain that this makes the workplace too stifling, which is the opposite type of workplace you want to have to remain union free.

It will be a fact that unions will use your email system to try to organize workers against you. Expression of interest through an email response may very well count as having "signed the card." So what do you do? You need to educate your workers. Educate them on:

• The company position on remaining union free. Let them know how the company will be harmed economically.
• Educate them on how unions may try to organize them, forewarning them about emails and contacts on social media. Letting them know not to respond to these contacts without first checking out the facts that may be presented.
• Encourage open communication with your employees about the economy, unions and the continued well being of the company.

You can draft tighter non-solicitation policies, which includes the use of email. But it may be difficult to totally control email use. But there is software to monitor email traffic if you want to do so.

I would like to hear from some of you who have email policies that restrict use of email. Please leave a comment and let us know how you do it, monitior it, and how effective that has been.

As a closing note, the card check provision is getting alot of attention. This attention may be a diversion to keep our attention away from the second provision of EFCA, Interest Arbitration and enforced contracts, which is the much BIGGER EVIL of EFCA.