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

As readers of this blog know, earlier this year the National Mediation Board, the agency responsible for enforcing federal labor laws in the railroad and airline industry, changed its union election rules.  Under the old rule, a majority of all employees the union sought to represent was required for the union to win.  Under the new rule, only a majority of those voting in the election is required for a union victory.

As that rule change was pending, Sen. Johnny Isakson (R.-Ga.) introduced Senate Joint Resolution 30 in an effort to override it.  The Resolution noted Congress' disapproval of the rule change and provided that it would "have no force or effect."

The Resolution was stuck in committee until earlier this week when a parliamentary procedure known as a discharge petition got it placed on the Senate calendar.  A vote took place yesterday on another parliamentary procedure referred to as a motion to proceed.  The vote broke down largely among partisan lines with all of the Republicans voting in favor of proceeding with consideration of the Resolution, and all but three Democrats voting against.

Interestingly, some Democratic Senators who have voiced opposition to EFCA also voted in favor of the Resolution.  Senators Lincoln and Pryor of Arkansas and Senator Nelson of Nebraska all voted in favor of the motion to proceed. 

Labor professionals in the airline and railroad industries were likely not banking on the success of this legislation.  It's failure is not at all surprising given the current partisan divide in Washington, D.C.  Thus, labor professionals should expect that efforts to "get out the vote" in airline elections will remain just as significant as those efforts are in union elections under the National Labor Relations Act.

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Over the past ten days, some interesting developments suggest that at least some in organized labor may be thinking about life without EFCA.  The story begins with remarks President Obama made on September 13, while speaking at an event in Virginia.  He answered a question posed by an audience member on the EFCA.  He acknowledged that there were not enough votes in the U.S. Senate to pass EFCA.  Therefore, the "opportunity to actually get this passed right now is not real high."  He again referenced administrative steps his administration has taken to "make it easier for unions to operate...."

Then, earlier this week, this article appeared, containing an edited interview with Eliseo Medina, the gentleman who won support from the SEIU's executive board to become the Secretary-Treasurer of that union.  Mr. Medina will serve until 2012, and takes the place of Ann Burger, who lost her bid earlier this year to become the President of SEIU.  According to the article, Mr. Medina was highly successful in leading organizing efforts in the South and Southwest.

In the article, Mr. Medina is asked how the SEIU should proceed with his goal of membership growth "with little prospect for passage in the near future of the Employee Free Choice Act."  Mr. Medina notes that "with or without" EFCA, the SEIU needs to take its message to workers.  He described as "untenable" the fact that only 7% of the private sector workforce is in a union now.  Ultimately, Mr. Medina indicated that the SEIU and the rest of the labor movement "have to go back to square one" and give employees information about joining unions.

Of course, for the labor relations professional, what this sounds like is good, old fashioned union organizing.  Unions used to do a lot of it.  It was only a decade ago when the NLRB conducted nearly 4,000 elections a year (4,001 in 1998 and 3,743 in 1999) -- the substantial majority initiated by labor unions seeking to organize new members.  In 2009, the NLRB reported that the number of elections held had fallen to 1,704. 

If Mr. Medina's remarks do foretell a return to traditional organizing efforts, employers should be on alert for a resurgence in organizing activity.  Even though the activity would take place under existing law, unions will have a more receptive audience at the NLRB for union-friendly interpretations of that law.

Interestingly, the AFL-CIO seems to be on a slightly different page, appearing to have faith that the legislative process will yield the changes to the law it wants.  In between President Obama's comments and the article summarizing Mr. Medina's views, Richard Trumka, President of the AFL-CIO, told listeners to a webcast that they should "stay tuned" on EFCA "because before the end of the year, you will hear something" about it.

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Much has been written about contributions from corporations to candidates for public office.  That coverage tends to focus more heavily on the spending of corporations.

According to data tracked and publicized by the Center for Responsive Politics, however, it would appear that union contributions to political candidates are just as heavy as corporate contributions, at least among the biggest spenders.  Four of the top 10, and half of the top 20, political action committees (PAC) are union-related.  The Electrical Workers lead the pack, having donated $2,561,123 to political candidates from 2009 to 2010. 

The total amount contributed to candidates for public offices by union PACs during this time period was $18,264,058.  In some cases, for example, the American Federation of Teachers and the American Federation of State, County and Municipal Employees (AFSCME), 100% of those donations went to the Democratic Party's candidate. 

Non-union PAC contributions in this top 20 category also tended to favor the Democratic Party's candidate, although not by such a substantial margin.  Of the top 20 PACs, only nine could be said to represent "corporate" interests.  One, the American Association for Justice, is the PAC for trial lawyers.

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The NLRB handed labor unions a helpful present just in time for the Labor Day weekend.  The National Labor Relations Act contains provisions that prohibit certain types of "secondary" activity.  For example, a union having a dispute with company "A" cannot picket the business of company "B" in order to force company "B" to stop doing business with company "A". 

In a 3-2 ruling released last Friday, the NLRB held that the union practice of displaying large, stationary banners in front of a secondary employer’s business (i.e., company "B") does not violate federal labor law. The Board, in Carpenters & Joiners of Am. (Eliason & Knuth of Ariz. Inc.), 355 N.L.R.B. No. 159, found that such a form of protest is merely persuasive, not coercive, and therefore does not run afoul of secondary boycott provisions contained in the NLRA.  

The case arose out of a labor dispute between the United Brotherhood of Carpenters and Joiners of America (the “Union”) and four construction-industry employers (the “primary employers”).  As part of that dispute, the Union placed anti-employer banners, which were 3 to 4 feet high and 15 to 20 feet long, in front of three secondary employers’ facilities. Union representatives held these banners stationary at distances of 15 to 1,050 feet from the entrances to the facilities but did not patrol the area, carry picket signs, or block entrances.

The NLRB general counsel and the secondary employers asserted that the banner displays violated federal labor law, which prohibits activities that “threaten, coerce, or restrain” commercial activity, arguing the displays were aimed at forcing the neutral employers to discontinue doing business with the primary employers. The Board disagreed. The majority examined the language of the NLRA and its legislative history and concluded that Congress did not intend the law to prohibit the display of stationary banners. According to the majority, such conduct is not comparable to other activities that have been found to be coercive, such as picketing. Moreover, the majority held that outlawing the banners would unnecessarily raise First Amendment concerns.

In a strongly worded dissent, the minority accused the majority of promulgating a “startling new standard” that goes too far by requiring employers to show that the union’s conduct either causes or could reasonably be expected to cause a disruption to the secondary employer’s operations. They contended the majority decision was not compelled by the language of the NLRA, legislative history, nor any First Amendment concerns, and goes against a strong body of contradictory precedent. At the end of the day, the minority said, the display of large banners is in fact coercive and is no different than other types of prohibited picketing.

By allowing the display of such banners, the NLRB now permits unions to target a broader range of businesses -- ones which have no collective bargaining relationship with the union -- and more freely exert economic pressure on them and the companies with which they do business.  This decision is likely to increase union protest power, creating additional opportunities for union secondary activity and the resultant need to plan for such conduct.  Finally, it remains to be seen whether the new standard the minority accused the majority of creating will be applied by the NLRB in future cases to further erode statutory protections for secondary employers. 

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