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Who Needs EFCA? - Expect Big Labor Law "Reforms" From the NLRB

Published Date: 
October 29, 2009
Author: 
Harold P. Coxson (Washington),

For the past several years, the business community's attention has been focused almost exclusively on federal legislation inaccurately named the "Employee Free Choice Act" (EFCA). That legislation would radically overhaul labor-management relations by substituting "card check" (employees' signatures on union cards) in place of government-protected secret ballot union representation elections, and by compelling arbitration of first contracts written by federally-appointed arbitrators where the union and the employer fail to agree after 120 days of bargaining. EFCA also contains anti-employer penalties and fines of $20,000 per violation and triple back pay, as well as federal court injunctions.

Almost as bad are EFCA "alternative" bills, which might: allow "ambush" union representation elections within 5-10 days of a union petition being filed with the National Labor Relations Board (NLRB) or mail ballots; grant union organizers access to meet with employees at work; impose limitations on employer meetings with employees on working time; and retain the anti-employer penalties.

But, as harmful as EFCA or its alternatives would be, many employers may be overlooking equally devastating anti-business changes to labor law and labor relations through actions outside of Congress. With liberal, pro-union appointments to the NLRB, several of these (and many other) union-driven labor law "reforms" may be accomplished by the federal agency acting alone, without the necessity (and challenges) of congressional legislation.

How about this? NLRB nominee Craig Becker, currently the Associate General Counsel of the AFL-CIO and the Service Employees International Union, has written that employers should have no role in union representation elections, and that union elections should be much faster. This means no educational campaigning, no mandatory employee meetings at work, no challenge to union misconduct during elections, no "technical refusal to bargain" on an initial contract in order to test the NLRB's union certification in court, no challenge to the appropriateness of bargaining units or the eligibility of voters, and so on. Basically, if Becker's views prevail, employers may find themselves as uninvolved, neutral bystanders between the time when a union petitions for an election and when it negotiates a first contract.

And how quickly would the NLRB schedule union representation elections? The 5-10 day "ambush" election suddenly becomes more of a reality, which would deprive employers of the ability to communicate with employees regarding the petitioning union so that employees are able to cast a fully informed vote in a secret ballot election.

Most alarmingly, the NLRB may push such changes through rulemaking, rather than the traditional case-by-case decision making, without the necessity of waiting for relevant cases to reach the Board.

Also, there are scores of recent NLRB decisions by the Bush Board in which Democratic Board Member Wilma Liebman and former Board Member Dennis Walsh dissented, and which unions want reversed. With Liebman as the new Chairman, and potentially a liberal, pro-union majority with nominees Craig Becker and Mark Pearce (all three former union lawyers), the potential is great that many of those decisions, and undecided cases currently pending before the Board, will be reversed or decided in the union's favor.

The two Republicans on the Board, current Board Member Peter Schaum-ber (a former arbitrator) and nominee Brian Hayes (Republican Labor Counsel on the Senate Health, Education, Labor & Pensions Committee), may be like matadors waiving a red cape before the Democratic charging, pro-union bull, writing dissents for courts of appeals to review, but without the potential of stopping the charge at the Board stage.

The current NLRB General Coun-sel, Republican Ronald Meisburg, has one year left on his term. The NLRB General Counsel has unreviewable prosecutorial discretion as to the issuance or non-issuance of complaints based on unfair labor practice charges filed with the agency. Part of his job, in effect, is being the gatekeeper to the Board.

In the one year remaining on his term, General Counsel Meisburg will be under tremendous pressure to get many of the unfair labor practice cases before the NLRB for decisions (representation case appeals go directly to the Board for review). But he will have little role in rulemaking by the Board itself. When his term expires next year, Meisburg will likely be replaced by a highly pro-union Democratic lawyer (possibly AFL-CIO General Counsel Jon Hiatt).

What will these potential changes at the NLRB mean for labor-management relations? What will they mean for employers? How should employers prepare?

Recently, the author of this article wrote a 79-page book for the U.S. Chamber of Commerce entitled "The National Labor Relations Board in the Obama Administration: What Changes to Expect." Among other topics, the book analyzes scores of NLRB decisions which are likely to be reversed or decided in favor of unions and their significance for labor-management relations. The following is an excerpt from that treatise.

Precedent At Risk

Strengthen Voluntary Recognition and Encourage Union Card Check Agreements

The Dana/Metaldyne decision, 351 NLRB 434 (2007), involves application of the Board's "recognition bar" doctrine where an employer voluntarily recognizes a union, in good faith and based on a demonstrated majority status (such as "card check"). Voluntary recognition immediately bars an election petition filed by an employee or a rival union for a "reasonable period of time" during initial collective bargaining. A collective bargaining agreement executed during this insulated period thereafter bars Board elections for up to three years of the new contract's term ("contract bar"). As a result, employees may be represented by a union for up to four years without ever voting for the union in a secret ballot election.

The Board majority in Dana/Metaldyne modified the "recognition bar" doctrine so that no bar would be imposed after card check recognition unless: (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the petition of a rival union; and (2) 45 days pass from the notice without the filing of a valid petition.

This decision explores the age-old debate between competing interests: "protecting employee freedom of choice on the one hand, and promoting the stability of collective bargaining relationships on the other." The holding in this case reflects the majority's view that a decertification petition filed by employees for a secret ballot election within 45 days of the notice of the employer's voluntary recognition of the union would strike the proper balance, since voluntary card check recognition does not give sufficient weight to the rights of employees to select their bargaining representative through a preferred secret ballot election.

Members Liebman and Walsh dissented, arguing that where voluntary recognition is based on a demonstrated showing of majority support, the parties should be permitted to bargain for a reasonable period of time without challenge to their majority status.

The significance of reversing this decision would be to return the law to the amorphous "reasonable period of time" standard for the recognition bar, which in some cases had been interpreted by the NLRB as being up to a year from the date of voluntary recognition. By that time a collective bargaining agreement most likely would have been executed, thus kicking in the three-year contract bar, for a total period of four years before employees would ever have a chance to express their views on unionization via a secret ballot election. This case also stands for the unreliability of card checks in lieu of secret ballot elections.

In Shaw's Supermarkets, 350 NLRB 585 (2007), the issue once again pitted competing Section 7 rights: employee free choice versus contract stability. The majority held that in spite of a "contract bar," an employer lawfully withdrew recognition from a union in the third year of a five-year collective bargaining agreement following the employees filing a decertification petition, based on over 900 employees of the 1,600 employee bargaining unit, that they no longer wanted to be represented by the union. In allowing the employer to withdraw recognition, the majority stated that "continuing to recognize and deal with such a union is as deleterious to employee rights as failing to recognize a union that enjoys majority support."

Member Liebman dissented, arguing in favor of contract stability that employers should not be permitted to unilaterally withdraw recognition, especially with a decertification petition pending.

In Dana Corp. and UAW, 7-CA- 4708 et al., which currently is pending before the Board, an administrative law judge considered whether pre-recognition bargaining between employers and unions that do not represent a majority of employees provides unlawful support to the union in violation of Section 8(a)(2) of the National Labor Relations Act. The case involved a Letter of Agreement setting forth terms and conditions of a contract which was entered into between Dana Corp. and the United Autoworkers Union before the employees ever signed union authorization cards. Under long-standing Board precedent in Majestic Weaving a pre-recognition contract violates the Act.

Here, however, the ALJ distinguished Majestic Weaving on the basis that the Letter of Agreement, although containing agreement on terms and conditions of employment, is not a collective bargaining contract. The case is pending before the current Board and will be decided quickly, most likely in the union's favor, upon the confirmation of a full Board.

Increased Use of Extraordinary Remedies Against Employers

There is a series of recent cases where the Bush Board refused to issue a Gissel bargaining order for employer violations during a union organizing campaign because the union never demonstrated the support of a majority of employees (i.e., non-majority bargaining orders). In those cases, Members Lieb-man and Walsh dissented.

Nominee Craig Becker has written that such remedies should be exercised more frequently. Thus, expect employer violations to be the basis for an order that the employer must begin bargaining with the union even though the union never demonstrated majority support, because in the opinion of the Board majority a fair election would not be possible in the face of the employer's violations.

Permit Employee Solicitation of Union Support By E-Mail

In The Register Guard, the Board majority held that employees had no statutory right to use the employer's e-mail system for Section 7 purposes, and therefore the employer's policy prohibiting employee use of the system for non-job-related solicitations did not violate Section 8(a)(1) of the NLRA. With respect to the employer's alleged discriminatory enforcement of the e-mail policy, the majority modified the Board's approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of "communications of a similar character based on their union or other Section 7 protected status."

In dissenting, Members Liebman and Walsh characterized the NLRB as the "Rip Van Winkle of administrative agencies," since "only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007, one cannot reasonably contend, as the [m]ajority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper."

Further, the dissenters wrote that national labor policy must be responsive to the enormous technological changes that are taking place in our society. "Where, as here, an employer has given employees access to e-mail for regular, routine use in their work, we would find that banning all non-work-related `solicitations' is pre-sumptively unlawful absent special circumstances."

The Board's decision went to the U.S. Court of Appeals for the District of Columbia Circuit. On appeal, the union did not challenge the lawfulness of the employer's e-mail policy, but contested the Board's holding that it was not discriminatorily applied. The court agreed with the union that the company's decision to discipline a worker for using the e-mail system to solicit other employees to wear green in support of the union and to seek volunteers to help with the union's entry in a city parade violated Section 8(a)(3). Calling the distinction between organizational and personal solicitation a "post-hoc invention" that did not actually exist in the company's e-mail policy, the court found that the company policy prohibiting non-work-related solicitations "made no distinction between solicitations for groups and for individuals."

The union was smart in not challenging the lawfulness of the employer's policy. This fact-specific decision reversed the Board, but left open the broader question of whether employers may maintain prohibitions on the use of e-mail for non-business-related purposes, including communications as to Section 7 union activities. That is now an issue to be decided by the new Obama Board.

Limit the Act's Supervisory Exclusion, Encourage Supervisory Solicitation for Unions, and Cover More Workers As Employees Protected Under the Act

In Oakwood Healthcare Center, Inc., 348 NLRB 686 (2006) and Harborside Healthcare, Inc., 343 NLRB 906 (2004), the Bush Board refused to limit the Act's Section 2(11) definition of statutory supervisors excluded from protection, and maintained the right of employers to discipline or terminate supervisors who engage in solicitation in favor of the union. Specifically, in a trilogy of decisions consolidated under Oakwood Healthcare Center, the majority refused to inter-pret the Section 2(11) supervisory duties to "assign" other employees or "responsibly to direct them" to deny charge nurses of supervisory status, as well as other working supervisors employed in other industries. In Harborside, and a series of cases following it, the majority held that supervisory pro-union activity was objectionable conduct and that supervisory solicitation of union authorization cards is inherently coercive absent mitigating
circumstances.

Members Liebman and Walsh dissented in both cases, and the rulings are likely to be reversed by the Obama Board in subsequent cases.

Conclusion

These are only a few of the policy changes regarding protected concerted activities, union elections, and collective bargaining that will come from the new NLRB. Scores of cases are reviewed in the author's book "The National Labor Relations Board in the Obama Administration: What Changes to Expect," which is currently available on the U.S. Chamber's website, and on Ogletree Deakins' website.

Many of these changes in NLRB policies will have a dramatic and very direct effect on employer-employee relations and labor relations. They will effect how businesses operate. Business will have to turn to the federal courts of appeals for relief. Be prepared.

Note: This article was published in the September/October 2009 issue of The Employment Law Authority.