Much has been made of the manner in which the basic tenets of the EFCA could be enacted via regulatory action and by adding various elements of the former EFCA bill into other pieces of legislation. David Bego, a CEO who has first-hand experience fending off an SEIU corporate campaign, presents another manner in which card check could be implemented without actually addressing the issue directly! Here is how he sees it unfolding:

The recent DOL rattling regarding rule changes to employer and consultant reporting add financial and jail-time penalties for failure to adhere to the potential new rules. This can be turned into a host of ULP charges filed by unions against an employer. With the substantially increased penalties, and a union-friendly NLRB left to interpret the validity of these charges, many employers would simply succumb to the union’s offer of a neutrality agreement in order to make the charges go away. Voilà – card check and a muzzled employer in one fell swoop!

Exacerbating the issue is the departure of the current NLRB General Counsel, Ron Meisburg. The position will surely be filled with another union-friendly appointee, and the General Counsel can significantly add to the union tilt in the execution of NLRB processes, as was noted by this law blog post:

The General Counsel can heavily influence the agenda and timing of cases that come before the full Board. There are a host of cases that can be lined up for decision, many of which can serve to overturn Bush era precedents unpopular with organized labor. One can expect the Board to revisit issues relating to the definitions of supervisors and independent contractors; whether employees have the right to call for an election after voluntary card check recognition; whether temporary employees can be organized; the use of email; whether non-union employees have Weingarten rights; pre-recognition bargaining; bannering; cessation of dues checkoff after contract expiration; whether “salts” must have a genuine interest in the job, and many more issues.

The NLRB emphasized its new pro-union stance in a June 3rd decision. The issue involved the status of medical interns and research assistants, and rather than using the most recent (2004) precedent to direct their actions, the board relied on an older decision (1999) to classify them as “statutory employees,” and thus open to union organization.

In an interesting sideshow, Wisconsin Governor Doyle signed into law a bill that allows employees to legally refuse to attend employer meetings where union issues will be discussed. Union political interests may find themselves one-upping themselves in this one! Supreme Court decisions clearly hold that federal law (in this case, the NLRA) prevents states from regulating in areas covered by the Act. Therefore the NLRA should continue to protect employer free speech about unions even in Wisconsin. However, in a strange, but not unthinkable twist, the NLRB could “rule-change” its way so that federal law matches Wisconsin’s new ban on employer free speech.

The Machinists are also looking to take advantage of a new labor-friendly Board by filing unfair labor practice charges against Boeing for locating a new plant in South Carolina. Apparently Boeing’s “crime” was locating brand new work in a right-to-work, low-union-density state! How the NLRB responds to this ploy should be entertaining.

We recently mentioned U.S. Representative Phil Roe’s statement that card check (as a piece of legislation) was “deader than a doornail.” Evaluating recent NLRB and NMB activity, this may simply be a smokescreen to put business interests off their guard.

In the only bright spot in recent activity, the airlines won a 20-day reprieve in their fight against the National Mediation Board rule change making it easier for unions to organize workers. The court allowed more time to hear arguments in the lawsuit filed against the NMB.

As an INK subscriber, you may have already seen the flash news item we sent out last night. The NLRB just issued an information request on how they can abandon the current election process in favor of an electronic one that can be held off-site. Read the details and the actual release here.

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