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....

EFCA Slight of Hand: My Prediction Comes True

About a month or so ago I predicted that the Pro-EFCA crowd would offer some compromise on the bill in order to get it passed. The firestorm of controversy around the secret ballot provision was too much and was making the law defeatable in the Senate. I said that the Pro-EFCAs would compromise on secret ballot because what they really wanted was the second provision of the law, arbitrated contract negotiation. See this March 11th post.

Well it appears my prediction is coming to be. This article in the Cleveland Plain Dealer online version quotes Sen. Sherrod Brown as saying the bill will be rewritten to preserve the secret ballot. No mention is made of the more onerous provision of the law.

Do not be fooled folks. This is slight of hand, the magician's trick of pay attention to this hand while I actually do the trick with the other. Don't let up on your Sentors in telling them this is not good legislation regardless of what happens with the secret ballot.

More on the Employee Free Choice Act

I had the opportunity to attend a seminar/briefing conducted by two notable attorneys from two well known law firms in the Atlanta area, Bennet Alsher of Ford & Harrison LLP and Daniel Shea of Nelson Mullins Riley and Scarborough LLP. They discussed alot of the impending legislation that will be introduced by the Congressional Democrats, supported by the Obama administration. They, Dan Shea in particular, discussed the EFCA, starting with a little history.

But first, let me remind you of the provision of EFCA. First, there is card check recognition, which would allow unions to declare a victory in organizing employees simply by getting 50% plus 1 signatures. It would eliminate the use of secret ballot elections. Secondly, there is First Contract Arbitration. This would require the government to impose terms of agreement if no agreement is made within 180 days. This binding agreement would be in force for 2 years. Thirdly, there would be increased penalities for Unfair Labor Practices to the tune of $20,000 per violation and the potential for treble damages. Oh, by the way, these penalties are for managment only! Now onto the information.

Dan Shea pointed out that originally, the Wagner Act had card check as the prime method of unionization written in the original law. The abuses by the unions, such as coercion, intimidation and threats of physical violence, forced lawmakers in 1947, in the Taft-Hartley Act, to change the process to secret ballot election. Dan also pointed out that Canada, which has a workforce that is 30% union (down from 40%) originally had card check solely as the method of union organization. The abuse of this method was so bad that the two largest provinces changed to secret ballot election. I confirmed this by some investigation and found this bit of research from a researcher named Sarah Johnson. "In the last 25 years, a major change has occurred in the way unions are recognised in Canada. In 1976, every jurisdiction in Canada used card check. Today, more than 50% of the Canadian labour force is covered by mandatory vote legislation and union recognition procedures continue to be a matter of policy concern and debate ..."

In case you think it is only business leaders and Republicans who find the use of secret ballot elections preferable here are quotes from some primary Democrat leaders. From The Union News we have "The leading House sponsor of card check is Rep. George Miller, who also served as campaign manager of Mr. Waxman's race against Mr. Dingell, settled by secret ballot. What's more, along with 10 House Democrats, Mr. Miller wrote a 2001 letter to Mexican government officials encouraging the "use of secret ballots in all union recognition elections." The letter states: "We feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose." In the inner workings of Congress representatives recognize the value of a secret ballot as evidenced by this quote about a vote to replace a key member of a committee. "Even Rep. Louise Slaughter, chairwoman of the House Rules Committee, told Congressional Quarterly she was relieved the vote would be a private one: "It's a secret ballot. . . . Thank the Lord." So there is just a bit of hypocrisy.

Dan and Bennet both thought that there may be some manauvering to soften the blow of EFCA, but they both believe that the bigger issue of EFCA is the First Contract Arbitration. Most first contracts are not usually negotiated in less than six months. The 180 day requirement is entirely unreasonable. And then to have the government impose your terms is disasterous. To give you an idea, in Canada, this method ended up with a WalMart Auto shop being forced to give employees a 32% increase in wages, despite a very competitive market that did not allow a comparable price increase. The result? WalMart closed the center the next day and all the newly unionized employees were out of work.

Another tidbit, the 50% +1 on card check is for the appropriate bargaining units, which you may not even know what that definition is until you are presented "your" union by the NLRB.

Lastly, there will be ABSOLUTELY NO SANCTIONS against unfair labor practices engaged in by the unions.

This law is the unions NUMBER 1 PRIORITY and they have alot of support. The NLRB will be heavily union biased as is the new Secretary of Labor (after all her father was a Teamster president.) So be aware, be educated and be active. Let your Congressional representatives know this is bad law. Here are a couple of educational resources. From UnionFacts. com info on intimidation. Lots of info from The Union News.