Will NLRB Create Stealth Pro-Union Legislation?

NLRB logoLabor leaders enjoyed a number of triumphs during the 111th (2009-10) Congress. But they are seething over the fact that a Republican Senate minority once again managed to block proposed legislation to force private-sector nonunion employers to recognize a union as a collective bargaining agent if that union persuades a majority of affected workers to sign a card indicating a desire to join. For them, this “card check” legislation is the Big One that got away, especially in a time of continued declining union membership. Given last November’s elections, union officials are even less enthusiastic about their prospects in the new Congress. That’s why, more than ever, they are turning to the National Labor Relations Board (NLRB) as a de facto legislative body. And the NLRB, given its current composition, may well deliver, piece by piece. 

Last fall’s congressional elections were a bitter pill for organized labor. The Democratic Party, Labor’s traditional allies, lost its 255-179 House majority (final count) and now finds itself outnumbered by Republicans 242-193 – a net loss of 62 seats. And their lead in the Senate has shrunk to 51-47 from 56-42, not counting two Independents. Union leaders feel a lot more confident, however, when they look at the normally five-member NLRB and its current 3-1 Democrat majority. President Obama’s appointment last March of Service Employees International Union Associate Counsel Craig Becker was especially gratifying, as Becker during the Nineties had expressed the belief that an employer should be denied the right to voice objections to an onsite union organizing drive. As longstanding political custom would have it, the NLRB must consist of three members of one major political party and two of the other. Thus, organized labor can count on NLRB support on most issues for at least two more years. Senate approval of Obama’s recent GOP nominee, Terence Flynn – the replacement for now-retired Peter Schaumber and currently an aide to Brian Hayes, the other Republican NLRB member – would be mere pro forma.

The three Democrats on the National Labor Relations Board will have lots of opportunities to enable union interests to prevail. Chairman Wilma Liebman and Mark Pearce may not be as radical as Becker, but they do tilt in a pro-union direction; that’s pretty much how they got their jobs (Liebman is a former Teamster lawyer, while Pearce was a Buffalo, N.Y.-based union litigator). Additionally, they will have an extra workload over the next year or two because of the U.S. Supreme Court’s ruling last June in New Process Steel v. NLRB [08 U.S. 1457 (2010)]. That 5-4 decision concluded that NLRB must reconsider the roughly 600 decisions it had rendered during the 27-month period when Schaumber and Liebman were the only two members. In ruling for the plaintiff, the Court referred to the federal regulation, 29 U.S.C. Sec. 153(b): “Three members of the Board shall, at all times, constitute a quorum of the Board.”

As it is, the NLRB caseload has been expanding. In 2010, the board issued 315 rulings, a hike of around 20 percent from 2009. Observers like Patrick Semmens, legal information director for the National Right to Work Legal Defense Foundation, think this trend will continue. “The rule-making pace that this board is doing is pretty unprecedented,” notes Semmens. Various rulings could give unions a brighter green light in aggressive organizing and bargaining. Among the most potentially far-reaching:

Lamons Gasket. For unions, this case matters most; the prospect for forced employer recognition of card checks rests on it. This is the culmination of an NLRB ruling last August 27 based on petitions in Rite Aid Store #6473 [No. 31-RD-1578] and Lamons Gasket Co. [No. 16-RD-1597]. In a 3-2 party-line vote, the board concluded that the two petitioners, each a company whose union had been decertified pursuant to the board’s Dana ruling [No. 06-RD-01518 (2007)], had standing to reverse the action. In that earlier case, much to organized labor’s chagrin, NLRB held that dissenting workers had the right to undo the results of a successful (i.e., signatures from more than 50 percent of affected employees) union card check campaign, as long as the dissenters filed a petition no more than 45 days from the date of receiving notice of voluntary employer recognition. Lamons Gasket, a Houston-based auto parts supplier, had agreed to recognize the United Auto Workers as the sole collective bargaining agent, thus waiving its own right to a secret-ballot election. Three employees sued, claiming management had no authority to act on their behalf. A UAW win would enable unions overall to target management or workers more effectively at a given worksite. Rite Aid Store #6473 since has dropped out, though without affecting the range of issues to be considered.

Roundy’s. A ruling in this ongoing case [No. 30-CA-17185] would clarify the right of union organizers to conduct pickets on company property. The case pits the Milwaukee Building and Construction Trades Council, AFL-CIO, versus Roundy’s, a Milwaukee-based supermarket chain. A group of union protestors had trespassed in front of more than two dozen Roundy’s stores, passing out leaflets calling for a boycott. The handbills had asked customers to go elsewhere for their grocery shopping because management had contracted with nonunion firms to perform store construction and remodeling. Though none of the picketers prevented shoppers from entering or leaving the respective stores, management took measures to remove them, including calling the police. NLRB had ruled last November 12 that Roundy’s management had acted unlawfully in removing protestors at 23 stores where it possessed only a nonexclusive easement, but had done so lawfully at two other stores where it had an exclusive easement. The case will consider whether the union should prevail even in those latter instances. Management has held from the start that even where its easement is limited, a union does not have a right to conduct a protest if the intent is to undermine business.

UFL-UNICCO. This Boston-area case [No. 1-RC-22447] defines the scope of the so-called “successor bar,” which NLRB overruled in 2002 in MV Transportation [337 NLRB 770 (2002)]. That doctrine had stated that if a new employer succeeds an existing one at a given unionized worksite, the union’s majority status can’t be challenged for a reasonable period so as to allow sufficient time for negotiation of a new contract. MV Transportation represented a clear defeat for the unions. A union’s presumption of majority status now could be reversed by the new employer, its employees or another union. In its complaint, a group of union locals constituting part of the Boston Area Trades Council had been the collective bargaining agent for employees of a building services firm, Building Technology Engineers, Inc. (BTE), a subsidiary of EMCOR Group. But as the union-BTE agreement was set to expire in April 2010, building owners prior to that had contracted with another Boston-area company, UGL-UNICCO. This firm in turn offered employment to a majority of workers in the bargaining unit but not under terms of the existing contract. The unions argue UGL-UNICCO must operate under the earlier contract. If successful, they will have restricted decertification rights of an employer, employees or a rival union.

Perhaps the most telling recent evidence of National Labor Relations Board alignment with union interests is not a case, but an advisory notice. On January 14, NLRB Acting General Counsel Lafe Solomon notified the attorneys general of Arizona, South Carolina, South Dakota and Utah that he would sue their states if they enforced referenda passed by voters last November (and by wide margins) to affirm the secret ballot as the sole method of choosing union representation. “Under the 1935 National Labor Relations Act,” noted Solomon’s press release, “private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means. The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federal right. For that reason, they are preempted by the Supremacy Clause of the U.S. Constitution.”

This view oversimplifies the issue. Each “Secret Ballot Protection Act” amends its respective state constitution by requiring the secret ballot to serve as the method by which workers decide whether or not to be represented by a given union. These initiatives don’t outlaw card check campaigns – far from it. What they argue, if by implication, is that while card checks should remain legal as a means for a union testing its worksite support (which frequently has been the ulterior motive for decades), they can’t preclude the secret ballot, even if the employer wants to accept the results of a card check as binding. The four similarly-worded referenda thus at once affirm existing federal law and go one step beyond. Observers across the spectrum are pretty much in agreement that this issue eventually will make its way to the U.S. Supreme Court.

That union leaders are pinning their hopes on the NLRB is understandable. Democrats are now a minority in the House and a significantly reduced majority in the Senate. Even more problematic over the long run, the unionized share of the U.S. work force continues to decline, a reality underscored by Bureau of Labor Statistics data released last Friday. In 2010, reported the BLS, only 11.9 percent of the paid labor force belonged to a union, down from 12.3 percent the previous year. In the private sector – the part where card checks apply – the portion dropped from 7.2 percent to 6.9 percent. Workers in this country for more than 75 years have had a federally-protected right to form or join a union without employer retribution. But labor officials seek something more, namely, a “right” to force reluctant employers and workers to acknowledge a union as the sole collective bargaining agent. For at least two years, and maybe a lot longer, the National Labor Relations Board will serve as their primary means to realize that goal.


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