What Does Shirley Sherrod Have to Do With Union Organizing?

Posted on July 29, 2010 by Nelson Cary

In recent days, the press has been quite focused on the case of  Shirley Sherrod.  Ms. Sherrod was asked to resign from her job at the U.S. Department of Agriculture after video surfaced of a speech she gave to a local chapter of the NAACP.  The clip that initially surfaced seemed to portray Ms. Sherrod, who is black, as making racially charged statements about a white farmer who had sought her help many years ago.  As it turns out, however, the entire video clip is a story of how her racial views evolved over the years.  A good summary of the Sherrod situation can be found here.

Resting its conclusion on the initial video clip, her employer pressed her to resign.  There appears to have been little or no opportunity for Ms. Sherrod to tell her side of the story.  Cries of "unfairness" erupted after the full video of the speech became public.

Beyond the politics of this situation, there is an important lesson for all employers.  Adverse employment actions should never occur without knowing all of the facts of the situation.  Here, it appears that Ms. Sherrod didn't get an opportunity to explain and/or the full video of her speech wasn't reviewed.  In the private sector, it is often the employer's failure to interview all of those with knowledge or give the employee an opportunity to defend herself that leads to indefensible actions and descriptions of employment actions as "unfair."

In turn, these cries of "unfairness" can easily translate into calls for unionization.  Indeed, arbitrary  or unjust employer conduct, and the resulting reality or even perception of unfairness that can arise, is a strong rallying cry for those who would unionize your workforce.  You need look no further than this recent AFL-CIO blog post to see how the issue of unfairness can be used in union organizing.

So, while you watch the fallout from the Sherrod story, remember that unjust terminations can spark interest in union organizing in any workplace.  Employers are well-advised to consider the impact of their termination procedures in this context.

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EFCA Update

Posted on July 27, 2010 by Nelson Cary

Although not making nearly the news it used to, the debate over EFCA continues to swirl.  Over the last couple of weeks, some interesting tidbits have surfaced.

First, talk of a "lame duck" effort to pass EFCA continues.  Columnist Charles Krauthammer, in a column entitled "Beware the Lame Duck" in The Washington Post, is one of the more recent commentators to identify this as a possibility.  He also discusses other legislative efforts that could be made after the November 2010 mid-term elections.

Second, opponents continue to marshal their statistical evidence against EFCA.  A good example is a recent article from the American Enterprise Institute.  The author concludes that EFCA would cost 4.5 million jobs and decrease GDP by $500 billion.

Third, EFCA continues to be an issue in U.S. Senate campaigns around the country.  In West Virginia, Democratic Governor Joe Manchin has announced he is running for the U.S. Senate seat that Sen. Robert Byrd (D-W.Va.) held until his recent death.  The press is reporting that Mr. Manchin hasn't yet taken a formal position on EFCA, but has indicated through a spokesperson that he will "listen to both sides" on the issue.  The issue also received a lot of attention in Arkansas, where unions are reported to have spent $10 million to defeat Sen. Blanche Lincoln (D.-Ark.) in the Democratic Party primary.  Sen. Lincoln is one of the Senate Democrats opposed to EFCA.  She won her primary election despite union spending against her.

Finally, unions have not given up the fight.  That much should be clear from the substantial spending in Sen. Lincoln's primary election. 

All of this activity reminds us that EFCA isn't dead yet.  While conventional wisdom holds that it will be an uphill battle for it to pass, that doesn't mean that it can't pass.

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Unions Waste No Time with New NMB Rule

Posted on July 1, 2010 by Nelson Cary
Today, the National Mediation Board rule changing how votes are counted in union elections for airline workers went into effect. Not wasting any time, three unions have already sought votes for employee groups at two different airlines: Delta and Atlantic Southeast Airlines (ASA). See the stories here and here.

The elections at Delta will be massive. The Association of Flight Attendants wants to organize all of the flight attendants in the combined Northwest/Delta operation. There are nearly 21,000 employees who could be eligible to vote in that election. The International Association of Machinists seeks to organize customer service agents and ramp workers, groups which number 16,500 and 14,000 respectively. The election at ASA is sought by the Teamsters and focuses on 570 mechanics and related employees.

These efforts are instructive for the labor relations professional in at least two respects:
  • First, union organizing efforts can consume a substantial amount of time and resources. The ASA drive has lasted at least two years, and it isn't over yet.
  • Second, issues such as respect, having a voice, and pay can sustain union organizing drives. These are issues that have surfaced both in the ASA campaign as well as the Machinists' campaign at Delta. 
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NLRB Announces Plan for Remanded Cases

Posted on July 1, 2010 by Nelson Cary

As reported on this blog last month, the U.S. Supreme Court ruled that the Board did not have the authority to rule on cases with only two members. The Board has recently announced its plan to handle the remand of the cases that were decided by just two members, and that parties had appealed to the Supreme Court and the various federal courts of appeal.

A press release issued by the Board today reads:

"During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members. At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire."

Labor professionals should watch the Board's actions on these cases over the next few weeks. Member Schaumber's term expires in August, leaving only a few weeks for these cases to be handled in the fashion outlined in the Board's press release. If Member Schaumber is not reappointed, and if the cases are not resolved prior to the expiration of his term, the three member panel that will consider these rulings will no longer have as a majority the two members who initially ruled on the case as a two-member Board.

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E-Voting in Union Elections?

Posted on July 1, 2010 by Nelson Cary
The Hill recently reported that the NLRB has requested information from federal government contractors on how it could implement electronic voting in union elections.

Under its current approach, the NLRB conducts elections either in person or by mail. When conducted in person, an NLRB agent brings a portable voting booth and paper ballots to a particular location (usually, the employer's place of business). The booth is set up and employees vote in person, in the presence of the NLRB agent and non-supervisory employee observers.

The alternative is for a mail ballot election. In an election conducted in this fashion, the NLRB mails a ballot to the home address of each eligible voter. The voter marks the ballot and returns it to the NLRB in an envelope that protects the secrecy of the ballot.

The NLRB's request for information indicates that the electronic voting would be in support of secret ballot elections. It also sought information about safeguards that could be implemented to ensure that votes were cast without "undue intimidation or coercion." As did the NLRB's adoption of the mail ballot option a few years ago, the request for information has sparked concern from employer groups.

Labor professionals should be aware of this change, but immediate action is not likely necessary. First, the NLRB's action is only an initial step. To implement electronic voting as a real world approach, additional administrative steps will need to be taken. Second, if the mail ballot experience is any guide, the electronic voting mechanism will add another option for the conduct of a union election. Even with the mail ballot option, the NLRB continues to conduct secret ballot elections in person.
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