Sen. Harkin Continues the Fight for EFCA

Posted on June 30, 2010 by Nelson Cary
"To those who say it's dead, I say think again." So said Sen. Harkin (D.-Iowa) in an interview on the Bill Press radio show a few days ago. Click here for the story from The Hill. Sen. Harkin also suggested that EFCA could be split up and votes held on different parts of it. He also raised the possibility of action in the "lame duck" session of Congress, that is the time after the November 2010 elections, but before this session of Congress ends. Sen. Harkin's comments are a reminder to labor professionals that EFCA may be down, but it's not out yet.
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NMB Changes the Rules

Posted on June 29, 2010 by Nelson Cary
In an earlier post, the different union election rules applicable to employers in the airline and railroad industry earned a brief mention. The rule used to be that the union needs to get a majority of those in the proposed bargaining unit to vote for union representation. It was not just a simple majority of those voting. The effect was that those who didn't show up to vote ended up counting as votes against the union.

The National Mediation Board, the federal agency that is responsible for administering labor laws applicable in the airline and railroad industry, has changed all that. Recently, the NMB announced that, effective July 1, 2010, the rule would change from a majority of those in the proposed unit to a majority of those voting. This rule change brings the NMB's rules in line with those applicable to other private sector industries subject to the National Labor Relations Act.

The rule change sparked a federal court lawsuit by an airline industry association and the U.S. Chamber of Commerce. Aviation Week provided coverage of the issue. Thus far, the outcome of that suit has not been positive. On June 25, the federal court refused to delay the effective date of the rule change.

Labor professionals working for employers subject to the NMB's jurisdiction should be aware of this change. Non-union employers will need to adjust their strategies related to a possible union organizing drive. The change clearly makes it easier for unions to win representation elections.
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Minority Unions: A Next Step for the NLRB?

Posted on June 21, 2010 by Nelson Cary
The default rule under current law is that a union needs the support of a majority of the employees it represents. If it has that support, the employer will be required to recognize and bargain with it. If it doesn't have that support, no obligation typically exists.

As an administrative agency, the NLRB can set rules in two ways. It can rule on specific cases that come before it, thereby setting out rules of law that apply in similar circumstances. It can also engage in rule-making, issuing rules of general application. The NLRB has traditionally relied heavily on deciding cases, and has only rarely issued administrative rules.

In 2007, however, a group of unions filed a petition with the NLRB asking that it issue the following administrative rule:
Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the [National Labor Relations] Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.

Another group of unions filed a similar petition in 2008. Both petitions followed a 2006 memorandum from the NLRB's General Counsel (the "prosecutor" of violations under federal labor law) that determined that a union needed to show majority support before there was any obligation to bargain with it.

If the NLRB were to issue a rule like the one proposed, it would fundamentally alter the accepted approach to union organizing. If a small group of employees wanted to bargain with the employer, the employer would have to bargain with them, no matter how few employees there were.

Fortunately for most employers, the NLRB has not to date taken any action on this issue. Indeed, the NLRB only had two members for a 27-month period, and so couldn't take any action on administrative rulemaking. That barrier to action went away earlier this year, with recess appointments of two new members. With four of five spots on the Board now filled, it could vote to issue a notice of proposed rulemaking in response to the unions' petitions.

In fact, just recently, a group of professors, led by Charles Morris who has written extensively on the issue of minority unions, filed an unsolicited amicus brief with the NLRB. The brief, which supports the rulemaking petition, asks the NLRB to proceed with rulemaking, and lays out an extensive legal argument in support of the legality of the proposed rule.

Labor professionals should monitor NLRB actions in this area, particularly looking for the notice of proposed rulemaking on this subject. If one is issued, certain employers or employer groups may want to submit comments on the proposed rule. In the meantime, labor professionals should consider how the issue of minority union bargaining could affect the workplaces for which they are responsible.
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Study of Public Sector Card Check

Posted on June 19, 2010 by Nelson Cary

Part of the debate surrounding EFCA focuses on the question of whether the card check provisions of ERCA would result in increased union organizing efforts. The empirical research available on this question has been slim. However, two professors have recently published a paper that sheds new light on the issue.

Rafael Gely, a law professor at the University of Missouri School of Law, and Timothy Chandler, a management professor at Louisiana State University, recently published Understanding Card-Check Organizing: The Public Sector Experience. An abstract of the article, and the article itself, can be found here.

Professors Gely and Chandler draw upon the experience of public sector unions in Illinois and Ohio. In each of these states, card check organizing of public sector employees has been voluntary. In Illinois, however, the law changed in 2003 to make card check organizing mandatory.

The research revealed that, in Ohio, secret ballot elections (like those run in the private sector) have remained the primary means of organizing new groups of employees. Similar data is found in Illinois, up to 2003. Since 2003 in Illinois, however, the "overwhelming majority of organizing has occurred via the mandatory card-check provision." Moreover, the authors conclude that the card check requirements led Illinois public sector unions to extend their organizing efforts to contexts in which they hadn't previously organized.

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Supreme Court Declares Two-Member NLRB Unauthorized

Posted on June 18, 2010 by Nelson Cary

The United States Supreme Court has held that the National Labor Relations Board does not have the authority to act when it has only two members. New Process Steel, L.P. v. NLRB, No. 08-1457 (June 17, 2010). From January 1, 2008 until early-April 2010, the Board had only two of five members. Members of the Board are appointed by the President and must be confirmed by the Senate. As a result of political deadlock between President Bush, and later President Obama, and members of the Senate, the three remaining seats could not be filled.

During this period of time, the two-member Board issued nearly 600 opinions in unfair labor practice cases before it. A party in one of those cases, New Process Steel, lost before the Board, and appealed, arguing that because there was only two-members on the Board when it ruled against it, the ruling was invalid.

The Supreme Court agreed in a 5-4 decision. In a technical analysis of the law, the Court majority determined that the Board always needs a quorum of three members to issue decisions.

The Court's ruling casts a shadow upon the nearly 600 decisions that the two-member Board issued during the 27 months it operated. In a press release, Board Chairman Liebman said:

“In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we [Chairman Liebmen and Member Schaumber] brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Labor professionals should keep a close eye on how the Board, which now has four members as a result of recess appointments by President Obama, will "rectify the situation." If a losing party in those cases sought additional review, the Board might just adopt the opinion of the two-member panel after additional consideration. After all, the two members who issued them, now-Chairman Liebman and Member Schaumber, are still on the Board.

On the other hand, the Board could revisit the questions decided and change its rulings in these cases. Member Schaumber's term will expire at the end of August 2010. Indeed, even if the Board were to act before August, with three Democratic appointees on the Board and only one Republican, the stakes involved in reopening any case could be high for an employer, depending on the circumstances.

Labor professionals should also watch for reactions by the Senate and the President. There are currently three nominations to the Board pending before the Senate, including two members currently serving under recess appointments by President Obama. The Court's decision may influence action on those nominations.

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