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Labor Law Update: Reconsiderations, Reversals and Changes
Despite big spending by the unions during the 2009 election and President Obama issuing four pro-labor Executive Orders during the few months of his presidency, labor law reform has taken a back seat due to the debate and passage of health care reform and the more pressing economic concerns facing the country. Changes to the composition of the National Labor Relations Board (NLRB), including its restoration to five members, with the confirmations of democrat Mark Gaston Pearce and republican Brian Hayes and the controversial recess appointment of former SEIU Assistant General Counsel Craig Becker, seems to have recharged the Board and spurred its involvement labor law matters.
On September 2, 2010, the NLRB announced its decision in three cases involving “bannering” by a union against a neutral employer (Eliason & Knuth of Arizona, Inc., Northwest Medical Center, and RA Tempe Corp.). “Bannering” is a practice in which a union (which is in a dispute with its employer), holds a large banner in front of a neutral employer (a company that does business with the union’s employer but is not affiliated with the union), to encourage the public not to patronize the neutral employer because of the union’s dispute with its primary employer. In a 3-2 vote, the full Board held that “bannering” by a union does not violate the National Labor Relations Act.
The main question before the Board in these three cases was whether “bannering” was more like picketing, (an unlawful activity) under Section 8(b)(4)(ii)(B) of the NLRA, which prohibits conduct found to “threaten, coerce, or restrain, a secondary employer not directly involved in a primary labor dispute if the object of that conduct is to cause the secondary to cease doing business with the primary employer,” or like handbilling, which is lawful activity. The Board determined that without “confrontational conduct, such as patrolling with picket signs in front of a neutral employer’s entrance creating a real or symbolic barrier to entry,” an adverse ruling could pose violation finding might unnecessarily suggest questions regarding freedom of expression, First Amendment issues under the NLRA
Review of Board Decisions
The NLRB has been reconsidering 96 cases that were decided by a two-member Board during the period of January 2008 through April 2010 on the basis that a two-member Board lacked the authority to issue decisions. It is anticipated that several Board decisions made during the Bush Administration will be reversed, including whether outside agency temporary employees can be included in a proposed bargaining unit and whether Weingarten rights (the right of unionized employees to have a union member present during disciplinary investigation meetings) may be extended to employees in non-union environments. Another issue to be revisited includes narrowing the definition of who is a supervisor under the National Labor Relations Act (NLRA), which would reduce the number of individuals available to employers for conveying union-related information. The Board is also likely to consider a proposal to establish “members-only, non-majority bargaining” by its rulemaking authority versus an amendment to the NLRA. This proposal, which is being promoted by a group of 46 labor law professors as being consistent with the original intent of the NLRA, would permit organizing and bargaining through minority unions on a members-only basis in workplaces where there is no recognized majority union.
Members-only, non-majority bargaining could result in a number of small bargaining units within a single employer where multiple unions could represent a minority of employees and employers would be required to bargain with a each group of minority of employees about their wages, benefits and terms and conditions of employment.
Changes to Union Elections
Although the Employee Free Choice Act (EFCA) legislation is unlikely to move forward, changes to the way union campaigns are handled are predicted. Currently, union representation elections are held within 42 days from the date a petition is filed. It is anticipated that the Board will reduce that timeframe to two to three weeks – just 14 to 21 days, which would dramatically inhibit an employer’s ability to communicate its position on unions with its employees. Further, the Board is expected to permit electronic voting versus the tradition of on-site secret ballot elections. Employees would be able to vote by telephone, e-mail or via the Internet. Under current procedure, elections are overseen by union, company or Board members; this lack of oversight in electronic voting raises concerns of the potential for coercion and intimidation by unions against employees. Limits may also be place on employer “captive audience” presentations in which employers present their views on unionization to employees during paid work time before an election.
Like the invigorating crispness of a cool fall day, it appears that the newly revitalized NLRB will be in a strong position to move labor’s agenda forward.
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