Philadelphia Museum Security Guards Organize

Posted on April 29, 2010 by Nelson Cary
After a union election has been conducted, both the employer and the union are entitled to file "objections" to the conduct of the election. The objections often focus on allegations of wrongdoing by one of the parties. For example, an employer or a union that allegedly makes an unlawful threat to an employee to win that employee's support. The NLRB takes evidence on these allegations and ultimately decides whether or not the election should be rerun.

The employer of security guards at the Philadelphia Museum of Art recently learned about these rules when it went through a union organizing drive led by the Philadelphia Security Officers Union. Many years ago, the Museum subcontracted its guard services to a private contractor. After an organizing election, the Union won. The employer filed objections to the election, but lost. Click here for the story from the Philadelphia Inquirer. 
 
If your organization could be the subject of union activity, remember to train your supervisors to avoid engaging in conduct that would be objectionable. An employer's policies could also contribute to objectionable conduct, so it is important to review those on a regular basis to ensure that they are compliant with NLRB law. Finally, remind your supervisors that, if they hear of potentially objectionable conduct from their employees, that they pass that information along to senior management.

 

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Senator McCaskill's EFCA Comments

Posted on April 15, 2010 by Nelson Cary
Yesterday, during a weekly call, Sen. Claire McCaskill (D. Mo.) was asked about EFCA. Her answer was very interesting. She started out by indicating that she didn't think EFCA would come up for a vote in the Senate, at least not in the format it was introduced:

"Well, I don't think card check is going to come up, it has not come up and beliee me, if card check, the way it was drafted, was going to come up, it probably would have come up early in 2009 as opposed to now."

She went on to discuss ongoing negotiations over the bill:

"I think there is a lot of negotiation going on about chard check -- businesses are at the table and frankly, I don't think that card checking part is the part that's being discussed at this point. I think that's been abandoned."
Included in those negotiations are efforts to make the current system "fair":

"There is some talk about trying to make it fair. You know, you have secret ballot to decide to unionize but management can use card check to get rid of unions. You can imagine the pressure that's put on people when the boss comes around with a card for you to check. That's hard."

Click here for the audio recording of Sen. McCaskill's remarks.

Two observations about Sen. McCaskill's comments are important for the labor professional. First, while many employers will undoubtedly take heart that card check has been "abandoned," it is important to remember that EFCA is about more than card check. It also contains the mandatory arbitration provisions and substantial civil penalties that could serve to chill employer's free speech rights. Moreover, card check could be replaced with "quickie elections," which for employers is not that different from card check.

Second, notwithstanding Sen. McCaskill's remarks, labor professionals should not believe that management can take a petition around to their already unionized employees to ask them whether they still want to be part of the Union. Such conduct is a violation of federal labor law, and has been for a long time. Indeed, the NLRB in recent years has taken steps to increase the use of secret ballot elections. It has limited the circumstances in which employers may withdraw recognition from an incumbent union. It has also required employers to post notices explaining to employees their right to a secret ballot election in cases where an employer voluntarily recognized a labor union without an NLRB-conducted election.
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Federal Contractors and Union Campaigns

Posted on April 15, 2010 by Nelson Cary

Under current law, employers confronted with union organizing drives face an important question: whether to take steps to oppose that effort. Under the Obama Administration, employers holding federal contracts also face an additional question: how will they pay for their efforts to prevent employees from organizing a union?

Federal contractors are allowed to claim certain costs of doing business as "allowable." Generally speaking, an allowable cost is one that can be charged to the government. Shortly after his inauguration, Pres. Obama signed an executive order that prevented contractors from treating costs related to opposing union organizing drives as "unallowable." See Executive Order 13494. Thus, a contractor who wants to exercise its right to express its views on the question of unionization must be willing to shoulder the cost of that effort and will not be able to shift those costs (or a even portion of them) to the government.

Yesterday, three federal agencies (the Department of Defense, NASA, and the General Services Administration) announced proposed regulations further implementing Pres. Obama's 2009 executive order. The proposed regulation provides examples of the types of unallowable costs, such as (1) preparing and distributing materials; (2) hiring or consulting legal counsel; (3) meetings (including the salary costs of those attending the meetings); and (4) planning or conducting activities related to a union organizing campaign by managers or supervisors during working hours.

Those wishing to comment on the proposed regulations should visit http://www.regulations.gov/ and input "FAR Case 2009-006" under the heading "Enter Keyword or ID". The comment period is open until June 14, 2010.

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NLRB Recess Appointments

Posted on April 8, 2010 by Nelson Cary

As has been extensively reported in a number of news outlets, Pres. Obama used a process known as a "recess appointment" to place on the NLRB two of his three nominees. The first, and most controversial, is Craig Becker, an attorney who works for the SEIU. The second, and significantly less controversial, is Mark Pearce. Both of these appointees are Democrats. Pres. Obama's Republican appointee, Brian Hayes, was not appointed through the recess process.

That Pres. Obama chose the recess process isn't terribly surprising. The NLRB's website tracks all of the various NLRB Members since the NLRB started operations in 1935. Reviewing the list, one finds a number of recess appointments by previous presidents, including Presidents Carter, Reagan, Bush (41), Clinton, and Bush (43). Most recently, Pres. Bush appointed mainly Republicans to the NLRB, but also made a recess appointment of Dennis Walsh, a Democrat, in 2006.

The troubling part about the political football that the NLRB has become is the lack of predictability for employers. Decisions that are made during one administration are the prime candidates for reversal under the next administration. Indeed, the U.S. Supreme Court has even been called upon to determine whether the NLRB can issue decisions with only two members, as it has done since before Pres. Obama announced his nominees to the Board. Thus, the reality that labor professionals confront is one of unpredictability. We will see where the new NLRB takes the labor law, but many signs suggest that it will not be a very scenic trip for employers.

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