National Labor Relations Board

NLRB to Businesses: Tell Employees they Can Unionize

by Ivan Osorio on August 25, 2011 · 2 comments

in Deregulate to Stimulate, Economy, Employment, Labor, Politics as Usual, Regulation

The National Labor Relations Board has issued a new rule “requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice.” The NLRB’s new rule, in its background section, suggests which right the Board considers paramount:

The NLRA, enacted in 1935, is the Federal statute that regulates most private sector labor-management relations in the United States.1 Section 7 of the NLRA, 29 U.S.C 157, guarantees that

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities[.]

In short, the ruling is part of the NLRB’s ongoing efforts to enact policy changes favorable to organized labor.

While the posting of a notice is hardly assured to send a flood of new members into union ranks, the new notice rule clearly fits into a pattern of pro-union activism by the NLRB — including proposals to shorten election periods and to allow unions to organize by remote electronic voting (essentially electronic card check), as well as the Board’s campaign against Boeing for opening a factory in a right to work state.

The notice rule’s impact may pale in comparison to those other actions, but it does suggest that the NLRB is throwing everything at the wall in the hope that something sticks well enough to keep Big Labor happy and on board, for political reasons. The Obama administration failed to enact pro-union legislation like the so-called Employee Free Choice Act when Democrats controlled the House, so now it is trying its hardest to get the unions something to keep them fully on board and engaged for the 2012 election.

The rule is scheduled to be posted in the Federal Register on August 30 and then to go into effect 75 days later, on November 14.

For more on the NLRB, see here.

For more on labor policy, see workplacechoice.org.

Another Union Handout from the National Labor Relations Board (NLRB)

by Vincent Vernuccio on June 21, 2011

in Labor

Today the National Labor Relations Board (NLRB) proposed a new regulation that would speed up the union election process from 45-60 days to about 10-21 days. So called “quickie elections” will result in workers not being given all the information they need to make a decision on whether or not to join a union. Employers generally do not know if a union is trying to organize them until a majority of the workers sign cards.

During the election process the employer has an opportunity to make their case to their workers — this is after the union has likely campaigned for months. Shortening the election will decrease the employers ability to make their case.

If the process were an election for president, Candidate A has could have over six months to campaign, while Candidate B would only get around 45-60 days. The new rule would only give Candidate B 10-21 days to campaign. The results would be heavily skewed in the union’s favor.

Congressional Republicans have already blasted the new regulations.

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NLRB Targets Boeing, Ignores Congress

by Ivan Osorio on May 25, 2011

in Deregulate to Stimulate, Economy, Employment, Labor, Regulation

It is now well known that the Obama administration is trying to use the National Labor Relations Board (NLRB) as a battering ram to push through policy changes favorable to organized labor. Union leaders probably don’t welcome that public attention, as the NLRB’s suit against Boeing for building a plant in South Carolina, a right-to-work state, has generated a backlash.

As I note in The American Spectator today, several lawmakers have asked the NLRB for documents pertaining to its actions against Boeing (as well as the Board’s plans to sue four states that have enacted constitutional amendments guaranteeing  secret ballots in union organizing elections).

On May 3, Sen. Mike Enzi (R-Wyo.), minority ranking member of the Senate Health, Education, Labor and Pensions Committee, joined nine other senators in sending a letter to NLRB Acting General Counsel Lafe Solomon requesting documents pertaining to the Board’s actions against Boeing.

Then on May 12, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), along with Reps. Trey Gowdy (R-S.C.) and Dennis Ross (R-Fla.), also wrote to Solomon, requesting documents pertaining to its threatened lawsuit against Boeing and the four states with secret ballot amendments — including any communications with union officials.

On May 13, Rep. Tim Walberg (R-Mich.), chairman of the Workforce Protections Subcommittee of the House Education and Workforce Committee, and 10 other senators (including Reps. Gowdy and Ross) also sent Solomon a letter, in which they strongly criticize “what we perceive to be an activist, job-destroying agenda.”

In addition, on May 5, House Education and the Workforce Committee Chairman John Kline (R-Minn.) and Health, Employment, Labor and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) wrote to Solomon requesting documents pertaining to the NLRB’s case against Boeing.

The NLRB responded with a letter that simply restates the Board’s position; the only documents attached to it are two news releases from the NLRB’s own website and a copy of the NLRB’s complaint and notice of hearing. In the letter, NLRB Acting Deputy General Counsel Celeste J. Mattina directs the Congressmen to other publicly available information.

This prompted a duly strong reaction from Reps. Kline and Roe. In a release, Kline states that, “The NLRB is not immune from congressional oversight or public scrutiny.” Indeed, the NLRB is not a lawmaking body, and Congress has not delegated to it the authority to change labor laws beyond what is in any statute.

For that reason, the NLRB’s arrogance should worry anyone concerned about the rule of law and the nation’s economic well being — as an unpredictable legal environment is just about the biggest obstacle a government can throw in the way of investment and growth.

The documents to the House Oversight Committee are due this week. It may be in for a similar non-response. Members of Congress should not relent in their efforts to rein in the NLRB’s pro-union activism.

For more on labor policy, see here and here.

Unionization by Regulation: House Oversight Committee Seeks Answers from Politicized NLRB, NMB

by Ivan Osorio on May 18, 2011

in Deregulate to Stimulate, Economy, Employment, Labor, Regulation

As unions continue to decline in their private sector membership, union leaders are seeking political solutions to their problems. President Obama will need organized labor’s support for his reelection campaign, and thus has good reason to stay on unions’ good side. His administration has been pushing unionization through regulation — enacting regulatory changes favoring unionization without input from Congress.

Two key agencies in this effort are the National Labor Relations Board (NLRB) and the National Mediation Board (NMB). The NLRB supervises the National Labor Relations Act, which covers labor relations for most private sector employees, and the NMB does the same for the Railway Labor Act (RLA), which covers railroad and airline employees.

The NLRB is threatening to sue Boeing for building a new a plant in South Carolina, a right-to-work state, as well as four states — Arizona, South Carolina, South Dakota, and Utah — for enacting amendments to their constitution that protect secret ballots in union organizing elections. Boeing’s South Carolina plant is new and was built to add to its capacity for building its new 787 Dreamliner; it was not built to shift production from the company’s unionized Puget Sound facilities.

A year ago, the NMB changed RLA voting rules from requiring a union to win a majority of votes in a bargaining unit to be certified as its monopoly bargaining representative to a majority of votes cast, which made it possible for a union to become certified with only a minority of bargaining unit members voting for it. (The FAA Reauthorization Bill, passed by the House on April 1, restores the old rule, but the bill still needs to go through conference committee.)

Now some Republican House members are trying to look into the politicization of these agencies.

On May 12, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), along with Reps. Dennis Ross (R-Fla.) and Trey Gowdy (R-S.C.), wrote to NLRB Acting General Counsel Lafe Solomon, requesting documents pertaining to its lawsuit threats against Boeing and the four states with secret ballot amendments — including any communications with union officials.

And yesterday, Reps. Issa and Ross wrote to NMB Chairman Harry Hoglander, requesting documents related the NMB’s change of the RLA voting rule — also including communications with union officials.

The NMB documents are due to Committee on May 24, and the NLRB documents on May 27. It will be an interesting June.

Senators Introduce Bill to Push Back against NLRB Overreach

by Ivan Osorio on May 12, 2011

in Deregulate to Stimulate, Economy, Labor, Regulation

Reacting to the National Labor Relations Board’s (NLRB) blatant efforts to promote organized labor’s agenda, Sens. Lamar Alexander (R-Tenn.), Jim DeMint (R-S.C.), and Lindsey Graham (R-S.C.) today introduced the Jobs Protection Act (S. 964). The Act aims to counter the NLRB’s campaign against Boeing for opening a new production line for its new 787 Dreamliner jet in South Carolina, a right-to-work state. The Senators’ joint statement sums up the bill thus:

The bill would:

  • clarify that the NLRB would not be able to order an employer to relocate jobs from one location to another.
  • guarantee an employer the right to decide where to do business within the United States.
  • protect an employer’s free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination claim.

It should be outrageous that such a bill would be needed, yet it is, as the NLRB carrying water for Big Labor appears to be part of a pattern. The Board has also threatened to sue four states over amendments to their constitutions guaranteeing secret ballots in union organizing elections. As I noted recently:

Telling businesses where they may locate their facilities and states how they may amend their constitutions are, to put it mildly, highly unusual attempts to stretch federal power. But such abuse of the NLRB’s remit may be the best vehicle that Obama now has to reward his union allies — whose suport he will need in his 2012 reelection effort — following the Republican takeover of the House of Representatives in the 2010 midterm elections.

Quite simply, this is unionization through regulation, whereby regulatory agencies circumvent Congress by “reinterpreting” the law beyond recognition.

Further, my colleague Iain Murray and I note in a recent op ed:

Boeing and the four states threatened by the NLRB have the law on their side, but it will need considerable patience to see their case through. The NLRB’s recent actions go so far in seeking to reinterpret the National Labor Relations Act that litigation could go far in the federal court system, potentially even reaching the U.S. Supreme Court.

Congress, for its part, should not wait for these cases to wind their way through the courts. It needs to rein in the NLRB before it does any more damage to the nation’s economy or to workers’ rights of free association.

This is the latest episode in the Obama administration’s pattern of politicizing the NLRB to act as an agent for organized labor, rather than an independent arbiter. Congress may still need to do more to rein in this rogue agency.

For more on labor, see here.

Unions’ Shifting Lame Duck and NLRB Agenda

by Ivan Osorio on November 22, 2010

in Bailout Watch, Economy, Labor, Regulation

With Democrats losing control of the House of Representatives and a substantial number of seats in the Senate, organized labor’s hopes of seeing its legislative agenda enacted are fading fast. But that won’t keep union bosses from trying, in two ways. First, a last-ditch push in the current lame-duck session of Congress; and second, shifting efforts away from the legislative to the regulatory process, specifically in the National Labor Relations Board (NLRB). Thankfully, this shift in union strategy is getting some public attention — and more is needed.

In Congress, Big Labor’s allies are most likely to focus on passing bills bailing out underfunded union pensions and forcibly unionizing state and local government public safety employees. As my colleague F. Vincent Vernuccio and I noted recently in Forbes regarding the proposed bailout:

During the lame duck session, the main Big Labor priority to watch out for is a union pension bailout. Introduced in the House (Create Jobs and Save Benefits Act, H.R. 3936) by Rep. Earl Pomeroy (D-N.D.) and in the Senate (Create Jobs and Save Benefits Act, S. 3157) by Rep. Robert Casey (D-Penn.), this legislation would create a new fund within the Pension Benefit Guaranty Corporation ( GRTYA.PK - news -people ) (PBGC), through which it would direct taxpayer dollars to shore up some underfunded union pension plans. The use of public funds to insure private pension plans is a first for PBGC and stark departure from the way it has operated since its creation in 1974.

Earl Pomeroy lost his reelection bid, which makes the prospects for his legislation dim. However, just because unions lost one champion of this legislation does not mean they cannot find another. Pomeroy was an odd sponsor of such legislation anyway; unions are not exactly political powerhouses in North Dakota, which is a right to work state.

The so-called Public Safety Employer-Employee Cooperation Act (S. 3194, H.R. 413) would corral public safety — police, firefighter, and EMT personnel — into unions. For organized labor, this may be its best option for a long-term growth strategy, now that more union members works for governments than for private businesses. But states and cities struggling to balance their overstretched budgets, higher labor costs is the last thing they need. As National Right to Work Committee President Mark Mix notes in The Washington Examiner:

Last year, even as the nation’s economy endured a severe recession, state and local employee real compensation rose by nearly 3 percent. Meanwhile, businesses whose revenues were plummeting had no choice but to cut back real compensation for private-sector employees by 4 percent.

Incredibly, Reid and many likeminded senators and representatives now appear eager to put an even more onerous burden on private-sector employees and employers so that already bloated unionized government payrolls can keep expanding.

The Public Safety Employer-Employee Cooperation Act would force countless policemen, firefighters and emergency medical technicians to accept as their monopoly-bargaining agent a union they never voted for, and want nothing to do with. All contrary state laws and local policies would be overridden.

Even in many states that already authorize public-safety union monopolies, the bill would widen their scope. That’s why the vast majority of the 50 states will be forced either to rewrite their public-sector labor statutes, or hand over control of their public-safety officers to the federal government, if it becomes law.

Moreover, as former Service Employees International Union second-in-command Anna Burger has boasted, it would “create a national collective,” i.e. monopoly, “bargaining standard for all [state and local] public workers.”

Meanwhile, the fight over card check and other pro-union legislation is shifting to the NLRB, where Board members Craig Becker and Mark Gaston Pearce — both recess-appointed by President Obama — are likely to push Big Labor’s agenda. As Katie Gage of the Workforce Fairness Institute notes in The Daily Caller:

Recently, the NLRB has taken action to favor labor bosses over employees and employers. Obama’s appointees to the board are carrying Big Labor’s water, and our freedoms and jobs are at risk.

Cases that have been decided and closed for years are now being reopened by these new board members, who aim to change pro-worker and pro-small business decisions into pro-union boss ones.

For example, most recently, the board backed unions in their practice of holding protest signs at small businesses who use contract workers, claiming that the signs are not coercive.

In addition, the NLRB is now considering implementing electronic voting services for remote elections as opposed to worksite elections where physical ballots are both cast and counted, a move that would open elections to potential fraud and workers to intimidation.

And now there is discussion that this “independent federal agency” will shorten the amount of time for workplace elections even though most take place within a month. While Big Labor bosses could begin planning and organizing months ahead of an election being called, small business owners could be caught unaware and have only a few days to make their case to their own employees.

The lame-duck session ends next month, but Becker’s and Pearce’s recess appointments run through the end of the next session of Congress, so they’ll be on the Board through 2011. The NLRB bears watching.

For more on labor, see here and here.

Will the NLRB Push Big Labor’s Agenda?

by Ivan Osorio on November 4, 2010

in Agenda for Congress, Economy, Employment, Labor, Regulation

Organized labor expended enormous amounts of resources and effort to give Democrats control of Congress in 2006 and the White House in 2008. For this considerable investment, union leaders hoped to get a rich return in enactment of the so-called Employee Free Choice Act (EFCA) — which, in its current form, would:

  1. Effectively eliminate secret ballots in union organizing elections;
  2. Enjoin federally appointed arbitrators to impose contracts on newly unionized companies that could not reach agreement with the union after 120 days; and
  3. Increase employer penalties for unfair labor practices, which include actions resisting unionization that would be legal in other contexts, such as promising to raise wages.

Now, with the Republican takeover of the House of Representatives and the Democrats’ Senate majority considerably narrowed, the clock is running out fast on Big Labor’s legislative agenda. As a result, Democrats in Congress will probably try to enact as many items on their union allies’ agenda as possible during the lame duck session. As I noted yesterday, we could see:

  1. A version of EFCA without its politically toxic card-check provision;
  2. A version of EFCA with card-check replaced with a different organizing mechanism favorable to unions, such as expedited elections or electronic voting;  or
  3. EFCA’s three sections being split off and attached to other legislation.

Moreover, as hopes for organized labor’s agenda fades in Congress, unions and the Obama administration are likely to shift the fight toward the National Labor Relations Board (NLRB). With Craig Becker and Mark Gaston Pearce, both recess-appointed by President Obama, sitting on the Board, the unions have a good chance of getting administratively what they couldn’t get legislatively.

Becker, a former associate counsel with the Service Employees International Union (SEIU),  failed to get Senate confirmation, largely due to previous writings in which he stated that employers should have no say in the organizing process.

Pearce hasn’t been as controversial, but he recently gave indication of being as dismissive of employers’ free speech rights — and of what the Board might try to accomplish. On October 21, at a labor law conference in Boston, Pearce said that he believed that the time period between the filing of an organizing election petition and the actual election should be “as brief as possible.” Shorten that period enough, and you end up with “ambush” election, in which employers barely get an opportunity to respond to a union organizing campaign.

Pearce’s comment suggests the possibility of the NLRB doing an end run around Congress. EFCA opponents in Congress should take the threat seriously, and counteract it if needed.

For more on labor, see here and here.

Government Unions up, Private Sector Unions down but not out

by Ivan Osorio on February 3, 2010

in Economy, Employment, Labor, Politics as Usual, Regulation

The Wall Street Journal explains the significance of the crucial shift in union membership that reached a tipping point last week: More union members now work for government entities than for private businesses. (I discussed this development last week.) The Journal editorial states:

Unions once saw their main task as negotiating a bigger share of an individual firm’s profits. Now the movement’s main goal is securing a larger share of the overall private economy’s wealth, which means pitting government employees against middle-class taxpayers.

And as union membership has grown in government, so has union clout in pushing politicians (especially but not solely Democrats) for higher wages and benefits. This is why labor chiefs Andy Stern (SEIU) and Rich Trumka (AFL-CIO) could order Democrats to exempt unions from ObamaCare’s tax increase on high-cost health insurance plans. To the extent Democrats have become the party of government, they have become ever more beholden to public unions.

The problem for democracy is that this creates a self-reinforcing cycle of higher spending and taxes. The unions help elect politicians, who repay the unions with more pay and benefits and dues-paying members, who in turn help to re-elect those politicians.

Indeed, today public sector unions constitute a permanent, organized, well-funded lobby for bigger government. However, that doesn’t mean that organized labor is giving up unionizing private sector workers.

In fact, private sector decline is a major motivation for unions to push as hard as they can for changes in labor law that would favor unionization — most notably the misleadingly named Employee Free Choice Act (EFCA), which, in its current form, would effectively eliminate the secret ballot in organizing elections, enjoin a federally appointed arbitrator to impose a contract upon a newly unionized company if the union and the employer cannot reach an agreement after 120 days, and increase employer penalties for unfair labor practices, which can arise from resisting unionization.

The current version of EFCA is in political trouble, due largely to the overwhelming unpopularity of its card-check provision, which would allow unions to bypass secret ballot elections by having employees sign union cards. The cards are signed in public, thus exposing workers to high-pressure tactics, which secret ballots are intended to avoid.

But EFCA is far from dead. Union-friendly Democrats in Congress could try to pass EFCA in parts, either by inserting its different provisions in other bills or by introducing those provisions as stand-alone bills. EFCA’s binding arbitration and increased employer penalty provisions haven’t received as much public attention as its card-check provision, which makes this stealth strategy attractive for EFCA supporters. EFCA-minus-card-check is something to watch for and guard against.

For EFCA supporters, this piecemeal EFCA strategy becomes even more attractive with the possibility that they could get either card check or some other legal mechanism to favor unionization through non-legislative means. The most obvious vehicle for this is the National Labor Relations Board (NLRB). Big Labor is going after the NLRB, with help from the Obama administration. Current NLRB nominee Craig Becker, a former SEIU associate general counsel, has said that employers should be cut out of the organizing process. (His nomination is on hold in the Senate.)

Meanwhile, as unions’ share of the public sector workforce continues to grow, so will those public employees’ union dues. Greater revenue from dues allows unions to increase their support for Democratic politicians, thus puting greater pressure on them to move further to the left — both by working to increase the size of government, where unions’ greatest prospects for growth lie, and by seeking to change the law to facilitate unionization in the private sector as well.

For more on public sector unions, see here and here.

The Nation Confirms Craig Becker’s Radicalism

by Ivan Osorio on February 1, 2010 · 1 comment

in Deregulate to Stimulate, Economy, Labor, Regulation

Former Service Employees International Union (SEIU) associate general counsel Craig Becker, who has been nominated to the National Labor Relations Board (NLRB) by President Obama, could make drastic changes in labor law to favor unionization, were he confirmed and appointed to the Board. Critics of Becker – mostly conservative and libertarian – have made this argument. Senate Republicans oppose his nomination. But don’t take from us. Now two pro-union lawyers, writing in The Nation, acknowledge the far-reaching nature of the changes Becker could make. Steven Hill, of the New America Foundation, and labor attorney Dmitri Iglitzin note:

Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

•?drastically shorten the time frame for holding union elections;

•?eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

•?require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

•?require equal access to both workers and the workplace for unions during campaigns; and

•?increase the penalties on companies that violate their workers’ legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support–just as the EFCA [Employee Free Choice Act] would.

Such changes could be made a radical enough Board member, so what kind of member is Becker likely to make? Hill and Iglitzin write:

Becker has argued that employers “should be stripped of any legally cognizable interest in their employees’ election of representatives.” In practice, this means that employers could no longer oppose union organizing drives through NLRB or other administrative proceedings but would instead become mere bystanders in that process, removing one of the most powerful tools in the employer arsenal of antiunion strategies. It is because of these types of opinions that the Wall Street Journal has called Becker “labor’s secret weapon” and accused him of wanting to “rig the rules to favor unionization.”

The stakes are high indeed. As the nation claws out of recession, the last thing we need is a more burdensome labor law regime hindering job growth.

For more on labor, see here.

For more on EFCA, see here.