Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

Member Peter Schaumber (R) left the NLRB last Friday, August 27, 2010, at the expiration of his term.  Member Schaumber was nominated by President George W. Bush early in his first term, taking his seat on December 17, 2002.  He was designated the Chairman of the NLRB on March 19, 2008, a position he held until January 19, 2010.

Among other significant accomplishments, Member Schaumber served as the NLRB's Chairman during the 27-month period when it had only two members.  Working together with now-Chairman Liebman, the NLRB issued nearly 600 decisions.  However, the U.S. Supreme Court ruled that the NLRB did not have the authority to act with only two members, thus invalidating these decisions.  The NLRB was in the process of reviewing the cases impacted by this ruling as Member Schaumber's term expired.

As a result of Member Schaumber's departure, there are at least two significant questions labor professionals should ask:

• Who will President Obama nominate to replace Member Schaumber?   The President's prior nominations have generated substantial opposition in the business community.  The battle over the nomination of former SEIU lawyer Craig Becker is a good example.
• How will the NLRB handle the cases that remain open after the New Process Steel decision?  According the NLRB's online database, not all of these cases have been decided.  Without Member Schaumber on the NLRB, it is possible that the cases could now turn out differently. 

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A recently released Gallup survey shows that only 52% of Americans approve of unions.  Another 41% indicated that they disapproved of unions.  The approval number is up from 2009, however, when only 48% approved of unions.  The survey has asked the same question since 1936.  This year's result was the second worst result for unions since the poll began, behind only last year's result.

The survey questioned 1,013 adults earlier this month.  Interestingly, of those surveyed, 10% identiified themselves as union members.  Another 6% reported that another member of their household belongs to a union. 

It may be that union members were underrepresented in the survey.  According to the Bureau of Labor Statistics, 12.3% of Americans belonged to a union in 2009.  If there were fewer union members surveyed than are actually in the population, the results may have been somewhat for favorable for unions.  Union approval was higher for those who were already union members.  Seventy-two percent of those surveyed who were already union members approved of unions.  In non-union households, only 48% approved.

Opinion surveys like this one clearly help employers understand what Americans generally feel about unions.  To be sure, employees in any particular workforce are likely to reflect generally the survey results.  But labor relations professionals should keep in mind that union organizing drives usually begin with issues that are specific to a workplace.  Examples include fairness, respect, and having a voice.  Thus, it would be a mistake to read the Gallup results and conclude that the possibility of a union organizing drive at any given business is remote.

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A threshold issue in labor relations is which grouping of employees constitutes an appropriate bargaining unit.  Those who are in the bargaining unit will be represented by the union.  This question must be addressed by both public and private sector employers.  In Ohio, particularly in the area of law enforcement personnel, there are unique rules applicable to public employees.

Late last week, the Ohio State Employment Relations Board (SERB) demonstrated just how far-reaching state law can be in including law enforcement personnel in a bargaining unit.  A union sought recognition as the representative of captains in a police department.  There were two captains, both reporting to the Chief of Police.  The captains attended bargaining sessions as representatives of the public employer.  They acted as the Chief of Police when the Chief was absent.  They attended disciplinary conferences.

Despite these facts, SERB held that the bargaining unit the union sought -- all police captains -- was an appropriate bargaining unit.  SERB noted that, while the captains participated in a number of the duties noted above, the Chief exercised the real authority.  For example, in negotiations, the captains simply gathered information for the Chief.  Even when absent, the Chief was always reachable by Blackberry.  Indeed, lower ranking members of the police force, including sergeants and lieutenants served as Acting Chief.  And in disciplinary matters, the Chief was ultimately responsible for determining discipline.

While the public employer attempted to exclude the captains as "confidential" employees, "management level" employees, or "supervisors," SERB rejected each argument.  When the details of the employees duties were examined, it became clear that the real power, exercised on behalf of the employer, resided in the Chief, and not in the captains.  Accordingly, the captains could be in a bargaining unit, and represented by the union.

The SERB decision is an important reminder that titles do not matter, actual duties do.  Employers that believe certain employees are representatives of management should periodically review the duties of those individuals to ensure that they exercise the appropriate level of responsibility on a regular basis.

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The Ohio State Employment Relations Board (SERB) will hold a public hearing on August 23, 2010.  At issue in the hearing will be new procedural regulations that SERB posted to its website last month.

The proposed regulations modify a number of different provisions of the SERB's procedural regulations.  The most significant changes in the draft regulations include:

• Electronic filing.  Many documents required in various SERB cases could be filed via e-mail with SERB.  Those documents could also be served on other parties in the same fashion.
• Mutually agreed upon dispute resolution procedures.  Any such agreement must be included in the Notice to Negotiate.  Parties would have an obligation to "regularly, or upon request" update SERB of the "status and/or progress" of that procedure.  Either party could file a motion with SERB to declare the procedure "concluded." 

In light of these developments, a labor professional in the public sector may want to:

• View the draft regulations here (.pdf).
• Consider whether the changes could affect the way in which the public employer handles negotiations or labor disputes, especially if the public employer utilizes a mutually agreed upon dispute resolution procedure. 
• Understand the electronic filing rules and procedures.
• Determine whether it should attend the public hearing SERB has announced.

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Last Friday, the NLRB announced its decisions in four cases that were overturned by the U.S. Supreme Court's decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010).  This decision held that the two member NLRB that issued decisions in nearly 600 cases did not have the authority to do so. 

The first four decisions were issued by a three-member panel that included the two members that had originally ruled on the cases.  In each decision, the three-member panel affirmed the decision of the two-member panel.  In none of the four decisions was a dissenting opinion filed.

If this pattern holds, the primary effect of the New Process decision will likely be delay for the parties involved.  The term of Member Schaumber, however, expires at the end of this month.  It is unknown whether the NLRB will be able to process all of these cases in that time.  The NLRB has created a database of these cases for those interested in following the handling of them. 

The larger import of New Process may well be its impact on the nomination process.  Knowing that a Board with fewer than three members will be unable to act may encourage earlier resolution of disputes in the Senate over NLRB appointments.  

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Last week, President Obama spoke to the AFL-CIO's Executive Council.  The Executive Council has 54 members.  According to the labor organization's website, the Executive Council is responsible for guiding the daily work of the federation.

President Obama's speech reportedly covered a number areas, including the Employee Free Choice Act (EFCA).  In commenting on EFCA, President Obama said:

 "And we are going to keep on fighting to pass the Employee Free Choice Act. (Applause.) [...] Getting EFCA through Senate is going to be tough.  It’s always been tough; it will continue to be tough.  We’ll keep on pushing."

Speaking only a few days later, AFL-CIO President Richard Trumka, followed up on the EFCA message.  In an interview on C-SPAN, Mr. Trumka expressed confidence that EFCA will come up for a vote by the end of this year.  He also reiterated the case for EFCA and defended the AFL-CIO's heavy campaign spending against Sen. Blanche Lincoln (D.-Ark.), an announced opponent of EFCA.  (See 4:39 and 13:04 on video clip.)

In addition to his comments about EFCA, President Obama also mentioned his appointments to the National Mediation Board.  The NMB is the agency responsible for administering the federal labor laws applicable to railroads and airlines.  President Obama said:

"But our work doesn’t stop there.  I mean, there’s a reason why we nominated people to the National Mediation Board that would ensure that folks in the rail industry and in the air industry were going to end up having a better deal."  

As previously discussed on this blog, the NMB recently changed a rule regarding how elections are conducted.  This rule change made it easier for unions to win organizing campaigns in the railroad and airline sector.  Unions greeted this rule change with enthusiasm, seeking union elections at a number of different airlines.

Not surprisingly, President Obama's comments have drawn criticism from business.  Interestingly, however, they have not been entirely well-received by some on the other side of the debate.  In this post on the blog FireDogLake, the author sets forth that view.

For the practicing labor professional, this back and forth remains interesting to watch.  It does not appear, however, that legislative action on EFCA is imminent.  The more important developments to monitor -- particularly given President Obama's comments about this agency appointments -- will be those coming from the NLRB.

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