Since it is acknowledged that any prospect of the Employee Free Choice Act becoming “law” has died with last year’s mid-term elections, we have discontinued the use of the term “EFCA Update” for our newsletter. However, as the NLRB continues to prove by both current actions and revelations of future objectives that it is “pro-union” all the way, it remains prudent to track governmental action that continues to tilt the playing field in favor of Big Labor. You’ll now find that content under the new title “Union Bailout Update.” The intent of Big Labor to get their money’s worth from the administration they “bought and paid for” in 2008 is still in full bloom, despite the recent election setback. In case you need a reminder, this recent article recaps some of the NLRB actions to date, and lists projected action based on comments of NLRB members. To start, the board has overturned elections for the following reasons: • Company observer was too closely aligned to management. • Employer’s supervisors were too close to voting area. • Security guards watched employees who were engaged in union activity. • Employer restricted the wearing of union T-shirts even though the employer presented evidence that it had consistently maintained a strict uniform policy. • Management solicited grievances, even though the process was consistent with practice in effect before union-organizing activity. • Prohibited an employer from refusing to hire a union “salt,” even though the employer had a good faith belief that the salt did not intend to have long-term employment with the employer. The board has indicated its intent to rule in future cases: • To restrict the definition of “supervisor,” making it more difficult to have individuals who perform supervisory functions excluded from proposed bargaining units. • To require the inclusion of employees of staffing agencies into voting units of regular employees. • To eliminate the charitable exceptions from no solicitation/no distribution rules. • To prohibit supervisors from joining discussions between employees on the merits of unionization. • To prohibit restrictions on the use of e-mail for union-organizing purposes. • To prohibit employers from having rules prohibiting undesirable conduct such as making false or abusive statements or criticizing the company to other employees or the public because the prohibition “chills” union organizing. • To prohibit employers from keeping union organizers off its property. Some of the new rules the board is considering include: • Shorten the time between the date of petition for an election and the election itself. This could be anywhere from 5 to 14 days. • Prohibit “captive audience” meetings. • Require employers to permit union representatives to enter the employer’s facility to campaign to employees, including hand billing. • Limit or eliminate the employer from the process of determining an appropriate unit of employees for a vote and the time and place of the balloting, leaving all such discussions to the union and Board only. • Requiring all employers to post (via bulletin board, email and web/intranet) a listing of employees’ rights to organize (conveniently ignoring rights to NOT organize – you’ve all received the email regarding the conference calls we’ve used to discuss the impact of this rule) • Extending the right to organize to intermittent or temporary employees The board’s general counsel is calling for “special remedies” to penalize employers during organizing campaigns, including: • The use of court injunctions for any “wrongful termination” action • “Expedited” investigations for wrongful termination cases • Force employers to have read aloud any message sent by the Board chastising an employer for unfair labor practices • Force employers to give a union access to their company bulletin boards and computer networks • Forcing employers to provide employee names and home addresses to unions If in doubt about the board’s effort to achieve “EFCA” via regulatory action, the GC’s memorandum announcing these measures stated, “The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful [italics added].” What the DOL isn’t doing is making it easy for Americans to keep an eye on corrupt union activity. The Office of Labor Management Statistics (OLMS) was supposed to release an annual report tracking labor unions and evidence of corruption in union leadership in January 2010, but the report is still “missing in action.” Don Todd, head of the OLMS under the Bush administration, is convinced that the motive behind the tardiness is purely political. For their part, new Republicans in Congress have at least taken “cosmetic” action by renaming the Education and Labor committee the Education and Workforce committee. Two organizations, Americans for Tax Reform and Alliance for Worker Freedom, have initiated an effort to engage Congress to role back the recent National Mediation Board rule change. Last year, the NMB changed the rules to make it easier for unions to win elections under NMB jurisdiction. A coalition lead by the two groups has written to Reps. John Mica (R-Fla.) and Darrell Issa (R-Calif.), urging them to oppose the rule change. On the state front, legislators in Indiana are proposing two bills that would make Indiana a right-to-work state. Republican Governor Mitch Daniels says he believes in the idea, but that now may not be the time to attempt such a move. “It’s a very legitimate issue,” said Daniels. “But I think it’s too big to do without having discussed it out in the open first. And I’ll also say I think it would have the potential — just tactically — to possibly reduce or wreck the chances for education reform and local government reform and criminal justice reform and the things we have a wonderful chance to do.”
