The National Labor Relations Act and A Democratic NLRB

The National Labor

Relations Act and A

Democratic NLRB

Presented By:Robert J. Chovanec

Composition of The National Labor

Relations Board

Current Board Members

� Wilma B. Liebman. Democrat. Has been on the Board since 1997. Dissented in many “Bush Board” decisions� President Obama has appointed her as Board Chair

� Peter C. Schaumber. Republican. Has been on the Board since 2002. Was Board Chair until President Obama appointed Liebman as Chair

� The Board has been functioning with 2 members (instead of the usual 5) since the beginning of 2008

Controversy over Board Powers

� Several cases deal with the allegation that the Board cannot lawfully function with only 2 members, and needs at least 3 to issue opinions

� Several Circuit Courts of Appeal have ruled that the Board may function with 2 members

� One Court of Appeals (the District of Columbia Circuit) has ruled that the Board must have at least 3 members to issue decisions

� The Supreme Court has granted review on this issue and will rule this year

President Obama’s Proposed New

Board Members

� President Obama’s nominees:� Craig Becker, Democrat, Union Lawyer� Mark Pearce, Democrat, Union Lawyer� Brian Hayes, Republican, Senate Republican Party Analyst

� Senate Republicans object to Craig Becker because he is an employee of the Service Employees International Union and has taken very strong “pro-union” positions in his publications

� With the election of a Republican Senator to fill the Massachusetts vacancy created by Senator Kennedy’s death, Senate Democrats do not have the votes to invoke “cloture” on Becker’s nomination

� President Obama may make “recess appointments”

Unions and Remaining Union Free

in the 21st Century

Unions Are In Decline

� Unions are failing, except in the public sector� Overall national unionization rate is about 12%� About 37% in the public sector (7.9 million)� About 7% in the private sector (7.4 million)

� Unions have not been successful in organizing through NLRB elections – elections are down 50% since 2000

� Inattention to Positive Employee Relations can still result in an NLRB election loss� In recent years, unions have won a majority of NLRB

elections

Unions Have Changed Their Tactics

� “New breed” of union organizer� Younger� Well educated� Recruited for sales talent� Use of Facebook, YouTube, Twitter, other internet social

sites

Union Affiliations Have Changed

� “Change to Win” Coalition Split Off From AFL-CIO� Teamsters� Laborers� Carpenters� Service Employees International Union� United Food and Commercial Workers� Unite Here (needle trades)� Farm Workers

Massive Union Spending in Recent

Elections

� Unions spent hundreds of millions supporting pro-union candidates in last national elections

� Pay back time has arrived� Pro-Union Administration� Pro-Union majority in both houses of Congress

� Tempered somewhat by “blue-dog” Democrats

Current Union Organizing Process

�Seven Steps� 1. Identify the target employer and unit� 2. Establish contact� 3. Motivate the contact person to form a small planning group� 4. Establish a formal Organizing Committee� 5. Identify the issues that the union will exploit� 6. Authorization card campaign� 7. NLRB election

Keys to Remaining Union-Free

� Do we know the issues on which a union would focus?� Have we addressed weaknesses in these areas?

� Do we have a good story to tell on each issue?� Do employees know it?

� Do we know what our employees think about each potential issue?

� Are there issues that would be important to employees that we don’t know about?� Strategy to identify and address

� Identify union and non-union comparables (industry and local) and learn about their pay, benefits, job security provisions and other terms of employment

Some Employees Are More Likely to

Support a Union

� Be aware of the profile of a potential “union true believer”� Cannot and would not discriminate to screen out potential

union supporters� Can and should select positive employees who fit the

organization through behavior based interviewing and similar techniques

� Can and should separate employees who do not meet reasonable performance and behavior standards after fair opportunity

� These are the employees who feel insecure and hostile, and who look to unions

Two Union Paths to Recognition

� Recognition through NLRB election� Persuade at least 30% of employees in an “appropriate

unit” to sign union authorization cards, to obtain an NLRB election

� Win the election� Recognition through a corporate campaign

� Attack the institution to force a neutrality agreement� Neutrality agreement says

� Will not oppose unionization� Will give union access to facilities and employees to

organize� Union will be recognized when a majority of employees

have signed authorization cards

Corporate Campaign

� A union corporate campaign is a sustained attack on an employer’s reputation and resources

� Preceded by research to determine weaknesses and vulnerable relationships

� Consists of� continuous disparagement of the employer through publicity,

dissatisfied employees, ally groups, demonstrations and any other available means

� legal and regulatory allegations and charges� continuous pressure on the employer’s operations and

resources by pressuring key relationships that the union can influence

� The union’s goal is to force the employer to sign a neutrality agreement

Unions Win When…

� Unions win when the union can show that the employer’s pay, benefits or working conditions are “substandard” compared to other comparable employers (or other employers the union urges as comparable) � Employees don’t always look at the big picture, but may

focus on one, or a few, key areas such as pay rates or health care

� Unions win when pay, benefits and working conditions are notsubstandard but employees perceive the employer as substandard due to union propaganda and poor employer research and communications

Unions Win When…

� Unions win when employees feel unfairly treated or otherwise insecure and in need of “protection”

� Unions win when the employer has created a chronically dissatisfied workforce through poor hiring and retention practices

� Unions win when supervisors have poor employee relations skills

Managers and Supervisors Have

Competing Priorities

� Customer service and safety are “number 1”?� Operational and financial efficiency are “number 2”?� Where does “Positive Employee Relations” fit in?

� Is it measured in any way?� Is it presently a high-priority goal for managers and

supervisors?� Do they understand its importance?� Are they evaluated based on attainment?� Are they compensated based on attainment?� Is their job security enhanced or at risk depending on

attainment or lack of attainment?

Managers Determine Supervisors’

Priorities

� Without strong top-down support of Positive Employee Relations, it will be subordinated to all other goals

� If supervisors do not perceive Positive Employee Relations as an important goal, some will manage to attain operational efficiency through fear and financial efficiency through substandard or inconsistent compensation

Supervisors Determine Employee

Attitudes

� Repeated studies show that if fair market compensation is being paid, the most likely reason for good employees to leave is dissatisfaction with their immediate supervisor� Perceived unfairness� Lack of guidance� Lack of appreciation

� These are also the reasons that employees turn to unions

Front Line Supervisors Are Key Players

in Union Avoidance

� When a union campaign starts, those responsible for the employer’s campaign ask these questions to determine the likely vote in each area� Is the Supervisor respected?� Is the Supervisor perceived as fair?� Is the Supervisor perceived as credible?� Do employees believe that the Supervisor cares about

them?� Can the Supervisor predict who will vote “union” and “non-

union,” and who are the “undecided” voters?� Can the Supervisor influence employee decision-making

through personal discussions?� Why wait for a union campaign to ask these questions?

Do We Select Supervisors Based on

“People Skills” as well as “Job Skills”?

� If supervisors are selected or retained without regard to peopleskills employee engagement is less likely and unionization is more likely

� Supervisors can be trained to develop their people skills� In the absence of training, supervisors who have been hired or

promoted based on job skills may attach low priority to people skills

� If supervisors do not perceive that their people skills are an important factor in evaluation of their performance, many will not develop people skills� takes time and effort� uncomfortable for many

Keys to Remaining Union-Free

� Managers and supervisors should be trained on union prevention, but

� Their main focus should be on Positive Employee Relations� Competitive compensation in all areas, but especially pay

rates and key benefits� Employee perception of fair treatment and opportunity� Good supervisor/employee communications and relations� Employee engagement� Retaining good employees, separating bad employees

The “Employee Free Choice Act”

Employee Free Choice Act

� The Employee Free Choice Act� Directs the NLRB to certify a union if a majority of

employees in “an appropriate unit” sign “union authorization cards”

� Provides for mandatory arbitration of the terms of a “first”collective bargaining agreement if the parties cannot agree after 120 days of unionization

� Increases penalties for employer “unfair labor practices”during the period from the beginning of a union organizing attempt to the effective date of a first union contract

Current Union Organizing Rules

EFCA Union Organizing Rules

EFCA Arbitration Rules

� Parties must begin bargaining within 10 days after certification� If no agreement after 90 days either party may ask for

mediation by the Federal Mediation and Conciliation Service (“FMCS”)

� If a contract has not been agreed after 30 days of mediation, the FMCS is to refer the matter to an “arbitration panel”

� The “arbitration panel” is to set the terms for a 2-year contract

Triple Back Pay

� If the NLRB finds an employer guilty of “discharge or discrimination” against employees during the period between the beginning of a union organizing campaign and the date of a first contract� The Board is to award triple back pay

� This section would apply if the employer permanently replaces strikers, and refuses them reinstatement, and if the NLRB finds that the employer acted unlawfully in doing so

EFCA Fines

� If an employer “willfully or repeatedly” violates the NLRA by intimidating or discriminating against employees from the beginning of a union organizing campaign until the date a first contract is entered into

� Up to $20,000 fine for each violation

EFCA Current Status

� The EFCA is pending in the House and Senate� House Democrats (who have enough votes to pass it) have

asked the Senate to act first� As of the date of this outline, Senate Democrats are most likely

several votes short of the 60 votes needed to bring the bill to the floor of the Senate for debate and passage

� Unions are beginning to punish Democrats who do not support the EFCA. In Arkansas, unions are backing a Democratic primary challenge by the state’s Lieutenant Governor in an attempt to unseat Democratic Senator Blanche Lincoln. Individual unions have already pledged $3 million to the challenger’s campaign, and the AFL-CIO has endorsed the challenger and is considering a contribution. A union presidentstated that unions need to “draw a line in the sand” to tell politicians that “if you’re not with us, you’re against us.”

Close Vote and Alternative Proposals

� Due to the election of a Republican Senator in Massachusetts the Democrats lack the 60 votes needed to invoke cloture and avoid a filibuster

� Democrats and Republicans are each “defending” 18 Senate seats in the 2010 election. If the Democrats have a net gain of1 seat, they will have the 60 votes needed to invoke cloture. In that case, the only question will be whether “blue dog”Democrats will vote against cloture

� Democratic Senators who oppose the “card check” instead of elections propose:� Shorter time frame for union elections; e.g. 10 days after

union files petition for election� Mandatory access to employer premises and employees

for union organizers� Status of “mandatory first contract arbitration” unclear

Important Board Decisions That May

be Changed by a Democratic Board

Supervisor Status

� Supervisors cannot be unionized without employer consent.� The National Labor Relations Act defines “supervisor”:

� "… any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment“

� An employee is a supervisor if s/he exercises any of the responsibilities in the statutory definition, provided that s/hemust use “independent judgment” to do so

Supervisor Status

� In Oakwood Hospital (2006) the Republican majority of the NLRB issued a key ruling on the definition of “Supervisor”� The two Democratic Board Members dissented (Liebman

and Walsh)� The Oakwood majority ruled that an employee is a supervisor

if s/he “assigns” employees to significant overall tasks� The dissent would have required that the assignment

involve a change in position, worksite or work hours� The Oakwood majority ruled that an employee is a supervisor

if s/he “responsibly directs” other employees and is “accountable” for their performance� The dissent would have required that an individual be in

charge of a “department or unit” to be a supervisor

Supervisor Status

� Under present law, you should be sure that your supervisors:� Assign “significant overall tasks” to employees. Just

“balancing workload” is not enough� “Responsibly direct” employees and are “accountable” for

their performance� Evidence that supervisors “evaluate” employees is very useful.� Evidence that supervisors “discipline” other employees will

likely assure that they will be considered “supervisors” within the meaning of the Statute

“RESPECT” Act

� Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act

� This Act would limit the classification of “supervisor” only to workers spending more than 50% of their time directly supervising others

� The Act would delete “assignment” of work and “direction” of employees from the statutory definition of “supervisor”

� Employers would not be able to enlist their frontline supervisors in their efforts to remain “union-free”

� Unionized employers would face conflicts of interest arising where the employer relies on frontline supervisors to manage employees and discipline or recommend discipline where necessary

Permanent Replacement of Strikers

� Under present law, an employer may not “discharge”employees who strike over union demands, but may “permanently replace” them (if the employer has not committed “unfair labor practices”)

� A permanently replaced striker is not entitled to reinstatement when the union ends the strike, but only if and when there are vacancies

� The ability to permanently replace strikers is the employer’s principal “economic weapon,” counter-balancing the “right to strike.”

� In his campaign for the Presidency, President Obama stated that he would support legislation to prohibit permanent replacement of strikers

� There has not yet been a legislative proposal on this topic

Register Guard – Employer E-Mail

� In the “Register Guard” case, the Board majority ruled that an employer need not allow use of its e-mail system for union solicitation if it does not allow e-mail solicitations for other organizations� An employer may allow use of e-mail for a “limited number”

of charitable solicitations without losing its right to bar union e-mail solicitations

� An employer may allow personal use of the e-mail system for “social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items,” without losing its right to bar union solicitations

� Board member (now Chair) Liebman dissented and a Democrat Board would likely reverse the Register Guard case

Minority Unions

� Seven unions filed a petition with the NLRB in 2007, urging the Board to adopt a rule that an employer would be required to recognize and bargain with a union that represented only a minority of employees in an “appropriate unit”

� The petition had no chance of success with the “Bush Board”� It is unclear whether the petition will have any chance of

success with an “Obama Board”

Dana/Metaldyne Cases

� The Board has long held that an employer may recognize a union without an NLRB election if the union presents the employer with evidence that it represents a majority of employees in an appropriate unit (such as signed “union authorization cards”)

� This form of “voluntary recognition” has become more common due to union “corporate campaigns” and resulting “neutrality agreements”

� In the Dana and Metaldyne cases the Board ruled that employees in the unit must be notified that there has been a voluntary recognition and that they have the right to file a decertification petition within 45 days after they receive the notice (the decertification petition must be supported by at least 30% of the employees, and will then result in a “decertification election”)

Palms Hotel and Casino

� A Board majority (Liebman dissenting) ruled that an employer’s work rule against “conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees or customers is lawful

� Liebman would have ruled that the NLRA protects “robust and spirited debate,” and that the above rule should be held in violation of the law

� The majority disagreed, ruling that since the rule was not enacted in response to union organizing the rule should be read “reasonably” and not presumed to restrict protected conduct

� A Democratic Board will likely reverse this case

Employer Withdrawal of Recognition

� In Shaw’s Supermarkets the Board majority ruled (member Liebman dissenting) that an employer’s withdrawal of recognition was lawful even though there was a labor contract in effect

� The employer withdrew recognition based on a petition signed by a majority of employees, stating that they no longer wished to be represented by the union

� Under Board law, a labor agreement only bars a “decertification petition” for the first three years of its term. The majority ruled that just as employees may file a decertificationpetition after the first three years of a long-term contract, they may also give their employer a petition stating that they no longer wish to be represented by the union, and the employer may then withdraw recognition

Oil Capitol and Toering Electric

� These two cases involved “salts” – that is, applicants for employment who are union agents or who apply as part of a union “mass application” to work on construction projects

� In Oil Capitol the Board majority ruled (Liebman and Walsh dissenting) that there should be no presumption that a salt would have stayed with the employer permanently, and therefore no presumption of long-term “back pay” if the employer discriminatorily fails to hire the salt

� In Toering Electric the Board majority ruled (Liebman and Walsh dissenting) that if employer produces evidence that a salt was not really interested in working for the employer, suchas belligerent conduct or other conduct inconsistent with a clear interest in employment, the prosecution must prove that the salt had a genuine interest in employment

Harborside Healthcare

� In this case, the Board majority ruled (members Liebman and Walsh dissenting) that a supervisor’s solicitation of employees to sign union authorization cards automatically constitutes interference with a fair vote in an NLRB election

IBM Corporation

� Unionized employees have a right to request and receive union representation at an “investigatory interview” – that is, an interview by the employer that may lead to discipline

� Until 2000, there was no comparable right for non-union employees

� In 2000, the Board ruled for the first time that a non-union employee has the right to insist that a co-worker be present during an “investigatory interview”

� In 2004, in the IBM Corporation case, the Board reversed this ruling (Liebman and Walsh dissenting), and returned to the previous state of the law – that non-union employees do not have the right to have a co-worker present at an “investigatory interview”

Oakwood Care Center

� Until 2000, a union could not obtain an NLRB election in a group (“unit”) consisting of both the employer’s employees and “leased” employees (e.g. “Manpower” help) without the consent of both employers

� In 2000, the Board ruled for the first time that regular and “leased” employees could be included in a single unit without the consent of both employers

� In Oakwood Care Center (2004) the Board returned to its previous position, ruling that leased employees cannot be included in a unit of host-employer employees without the consent of both employers

� Members Liebman and Walsh dissented

BE&K Construction Company

� Until 2007, the NLRB’s position was that if an employer sued a union and the suit was dismissed, the employer was liable for violating the NLRA even if the lawsuit was “reasonably based”if the lawsuit was filed to protest the union’s activities protected by the NLRA

� In BE&K Construction Company, the Board decided (upon remand from the Supreme Court) that an employer does not violate the NLRA by suing a union if the suit is “reasonably based,” even if it is ultimately dismissed

Crown Bolt

� In an earlier case, the Board ruled that if an employer representative threatens to close the operation if the employees unionize, there is a presumption that the threat was disseminated to all employees, and therefore that an employer victory in a union election should be set aside

� Under this rule, even if the threat was made to a single employee, the “presumption” would apply unless the employer could prove that the threat was not disseminated

� In Crown Bolt, the Board reversed this position, and ruled that the union must show that the threat was spread beyond one or a few employees

Jones Plastic and Engineering

� In an earlier case (“Target Rock”), the Board ruled for the first time that if an employer requires permanent strike replacements to acknowledge that they are employed “at will,”this undermines a finding that they are true “permanent replacements,” and the employer may be required to discharge them to make room for returning strikers

� In the Jones Plastic and Engineering case, the Board ruled that an “at will” disclaimer is not inconsistent with “permanent replacement” status

Bargaining Orders To Remedy

Employer Unfair Labor Practices

� Under the Board’s “Gissel” case doctrine, if an employer wins an NLRB election by committing unfair labor practices, and if a majority of the employees had signed “union authorization cards,” the Board may order the employer to recognize and bargain with the union without a second election, if the unfair labor practices were serious

� The Bush Board has tended not to issue bargaining orders in these situations, and instead to order a second election

� An Obama Democratic Board will be more likely to issue a bargaining order instead of directing a second election

Partial Lockouts

� In Midwest Generation, a union called a strike, some employees crossed the picket line to work, and the union later ended the strike and offered to return the remaining strikers towork

� The employer locked out the union employees who had not yet returned to work as of the date of the union’s offer, but did not lock out those who had returned to work earlier

� The Board Majority ruled that the “partial lockout” was legal. Members Liebman and Walsh dissented

Burden of Proof on Mitigation of Back

Pay

� If an employer unlawfully discharges a union adherent, it will be found liable for back pay. However, if the employee fails tomitigate damages by seeking other work, back pay will be reduced.

� In St. George Warehouse, the Board Majority ruled on burdens of proof on “mitigation” issues� The employer must show that other jobs were available in

the area� If so, the prosecution must show that the employee took

reasonable steps to seek those jobs� Members Liebman and Walsh dissented. They would have

ruled that the employer bears the full burden on mitigation issues and that the burden does not shift to the prosecution

Union’s Right to Review Employer

Financial Statements

� If an employer claims that it “can’t afford” the union’s proposal, the union is entitled to review the employer’s financial statements

� In American Styrene the Board Majority ruled that an employer who initially made a statement that the Company would “go broke” if it granted the union’s proposals nonetheless did not have to allow the union access to its financial statements because the Company promptly “retracted” any claim of inability to pay

� Member Walsh dissented. He would have found that because the employer denied ever saying that it “couldn’t afford” the union proposal, the employer was lying and its retraction was not entitled to credence

Back Pay in “Failure to Bargain”

Cases

� In Anheuser-Busch, the employer installed video surveillance cameras without first giving the union an opportunity to bargainover the issue

� The Board majority found that the employer did violate the Act by failing to bargain, but that the employer’s discharge of two employees for misconduct proven by video from the cameras was still lawful

� Members Liebman and Walsh dissented. They would have ruled that the discharges were unlawful because they were based on the video surveillance that was improperly implemented without bargaining

Wearing Union Insignia

� The courts have held that employees have the right to wear union insignia while on duty unless the employer shows “special circumstances” (and the term “special circumstances”has not been well defined in court opinions)

� In W San Diego the Board Majority ruled that the hotel employer showed “special circumstances” allowing it to prohibit wearing of union insignias in guest access areas, because the employer’s interest in having uniform dress standards in guest access areas, and because the employer barred all badges or adornments, not just union-related badges

� Member Liebman dissented, and would have ruled that the employees had a right to wear the union badges in customer service areas