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

Earlier this year, Catholic Health Partners filed an "RM" petition with the NLRB's regional office in Cincinnati, Ohio.  An RM petition is a way for employers to initiate NLRB-conducted, secret ballot elections when the employer believes that a union representation issue exists.  Catholic Health Partners sought elections in 44 different units at more than a dozen hospitals and nursing homes to determine whether employees in those units wanted to join the SEIU.

Significantly, according to the NLRB's press release, both the employer and the union agreed not to campaign against each other.  The only materials distributed to employees were jointly-created documents explaining the election process.

The elections were held at the end of January.  Despite the employer's neutrality, the SEIU won representation rights in only four of the 44 units.  A total of 672 employees are employed in those four units.  There is one unit in which the outcome is still uncertain.

For labor professionals, this is an interesting development for two reasons:

• First, it is a good reminder that the NLRA contains a mechanism -- the RM petition -- by which employers can resolve union representation questions.  Whether this is the right strategy in any given case will necessarily be fact specific.
• Second, it is an interesting case study in the area of neutrality agreements.   These  agreements usually seek to silence the employer, while leaving the union free to campaign.  They may also be combined with "card check" recognition, rather than a secret ballot election.  Not surprisingly, the result is typically recognition of the union by the employer.  The results of these elections suggest that if the concept of "neutrality" is approached differently, and the secret ballot is preserved, the outcome is less certain.

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In 2007, and again in 2008, Governor Strickland signed executive orders that significantly expanded the scope of unionization in Ohio.  The executive orders provided a legal framework for certain unions to organize independent home health care providers and home child care workers.  These are individuals who work for themselves, but obtain reimbursement from the State.  Governors in other states, like Illinois and Michigan, took similar actions in the 2000s as well.

As a result of the executive orders, the SEIU organized about 7,000 home health care workers.  The AFSCME union organized about 6,800 child care workers.  The labor contracts that the Strickland Administration subsequently negotiated with these two unions required all of the workers to pay union dues to the respective unions.  Those contracts expire in 2012.

This weekend, Governor-Elect Kasich indicated his intent to reverse the Strickland-era executive orders.  Not surprisingly, the statement drew strong rebuke from the two unions who represent the employees. 

For the labor professional in the public sector, Governor-Elect Kasich's statements suggest that change may be in the wings for the structure of labor relations in the public sector in Ohio.  Commentator Thomas Suddes writing in the Columbus Dispatch discusses what the future might hold for public sector unions in the coming four years.

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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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