Labor Relations INK In this issue:
- EFCA Update
- Labor Day Salute to Labor Hypocrisy
- Healthcare Employers Under Pressure
- Labor Relations Insight, Only In A Union and more…
Labor Relations Insight from Phil Wilson Week Of “Decisions” 
The NLRB issued two historical “decisions” last week. I put decision in quotes because neither one really counts as a “decision.” The only thing they decided (by a 3-2 party line vote on member Schaumber’s last day in office) was to punt two controversial “decisions” until they could get some feedback from experts in the field. The first case they seek comment on is the Dana case that gave employees the opportunity to seek an election to verify a union’s majority status in cases where a union is voluntarily recognized and a group of the newly unionized employees doubt the union’s majority status. The second case seeks to overturn the MV Transportation case that provides that a newly acquired company’s employees can seek a decertification election if the union is imposed on them after the acquisition. It is probably surprising to many of our readers that the Board is seeking help on these decisions. After all, the Board is specifically designated as the nation’s experts on labor relations matters. Apparently now, for the first time in 75 years, the Board now needs help in coming up with reasons to overturn prior decisions (make no mistake – both of these decisions will be overturned soon). I suppose this is understandable since 3 of the current 4 members are just a couple of months into their term. Nevertheless, they are all experts in the field of labor law and their positions on these cases are pretty transparent. Why this sudden move to get the public involved in their decisions? I think the main reason is to give their decisions the feeling that they are somehow less partisan than prior decisions. That is a joke. While one can certainly argue with whether the Board should act in a partisan fashion, there can be no debate on whether the Board does act in such a way. It is virtually guaranteed by the way the Board is composed. So why the charade? The Board faces a complete crisis of confidence. It had no credibility with labor unions during the Bush administration (both of these decisions are attempts to reverse what unions consider to be “bad law” created by the Bush Board). It has no credibility with the business community now after the controversial recess appointment of former SEIU Counsel Craig Becker. The idea that seeking briefing on controversial decisions will somehow legitimize them is comical. Let me guess. The AFL-CIO, Change to Win, and about a hundred other pro-union organizations will file briefs in support of overturning these decisions. The Chamber of Commerce and other business groups will file briefs in opposition. The Board will rule either 3-2 or 3-1 (depending on whether Member Schaumber is ever replaced) to overrule these two controversial cases. Why all the drama? Because Chariwoman Liebman recognizes that the Board as an institution is in jeopardy. It lacks confidence from its two main constituencies. It appears that the hope is that if she can gain the confidence of unions, that maybe that will save them. We’ll see. Assuming Republicans win the House in November, which at this point is looking pretty good, one thing is for sure. If the Board starts on a tear of pro-union decisions the appropriations hearings next year are going to be very hostile. At the same time unions are screaming for something (since EFCA appears on the scrap heap) in exchange for the hundreds of millions of dollars they spent in 2008 and will spend again in 2010. The Board is between a rock and a hard place. I for one don’t think seeking briefs on controversial cases is going to make things any more comfortable. ********** EFCA Update 
Although the only “noise” about the possibility of the EFCA ever seeing the light of day centers around a potential lame-duck-session maneuver, there is plenty of activity on the legislative and regulatory front, at both state and federal levels, to give heartburn to American business owners. In California, legislators are attempting to push another bill that would allow card check recognition for farm workers in certain instances. A Schwarzenegger veto will most likely have to be overcome to make it law. In a recent decision by the now-union-friendly NLRB, unions were given free reign to use banners at secondary boycotts. Expect the frequency of such activity to increase, along with the embroiling of neutral employers in labor disputes not of their own making. 
In an even greater assault on worker freedom, the NLRB has reopened the discussion of the Dana Corp decision. The original 2007 board decision granted employees the right to demand a secret ballot election to remove an unwanted union within 45 days after the union obtained bargaining status through the card check process. The former-union-lawyer-stacked NLRB is now looking to . Since Dana was decided, fully 25% of such decertification votes have rejected the card check recognition of a union, validating the purpose and need for a secret ballot election. In a side note on the NLRB, Bush appointee Peter Schaumber’s term has expired, reducing the board to 4 members. The board only operated at full 5-member strength for 2 months. Although Schaumber’s replacement should technically hold allegiance to the other side of the aisle from Obama’s other 3 appointments, it will be interesting to see how close to the line this next appointment will come. At the SEC, a new rule will provide unions governance. Pat Atkins, a former SEC commission, gave the following warning in a WSJ article:
It’s no coincidence that only unions and cause-driven, minority shareholders want this coveted access. They would use it to advance their own labor, social and environmental agendas instead of the corporation’s goal of maximizing long-term shareholder wealth. The rule will give them pressure points with which to hold companies hostage until their pet issues are addressed. Many corporate managements and boards will acquiesce to avoid a contested director election. Transparency and fairness will suffer because the rule invites abuse. Institutional representatives admitted—at a public 2007 SEC roundtable on the proxy process—that they already use the machinery of shareholder proposals as leverage to accomplish private objectives behind closed doors. In other words, they threaten to propose a proxy measure and see what the company will give up to keep it off the proxy ballot. The company may even adopt some or all of the proposal, even though the measure would likely fail in a shareholder vote. This rule adds another powerful tool to that arsenal of threats.
The FEC refuted a complaint filed by the National Right To Work Foundation and has allowed the SEIU to pursue an illegal political fund-raising scheme. Here is how one op-ed writer eloquently describes the ruse:
Imagine the outcry if McDonalds executives demanded that franchise owners collect “voluntary” contributions totaling $25,000 for the company’s Political Action Committee (PAC) from employees at every restaurant. What if the fast food titan’s headquarters followed up with a threat – pay us, or face a $37,500 fine? Do you think this heavy-handed scheme would raise a few eyebrows at the Federal Election Commission (FEC)? Replace “McDonalds” with “SEIU” in that description and you’ve got a pretty good idea of Big Labor’s latest political fundraising strategy. To meet their ambitious fundraising targets, Service Employees International Union bosses are now threatening to fine any local affiliate that doesn’t meet its PAC contribution requirements. The only problem with this racket is that FEC guidelines explicitly prohibit organizations from collecting PAC funds by threatening members with financial reprisals. SEIU bosses aren’t exactly hiding their intentions, either – they actually wrote this fundraising provision into the union’s constitution at their annual convention. If McDonalds had the nerve to collect contributions from employees using similar threats, you can bet the FEC would be all over the case. The SEIU, however, seems to have gotten away scot-free.
Perhaps the scariest news out of our Capital is the SEIU-backed government take-over attempt of all citizens’ private 401(K) retirement plans. This three and a half minute video is a must see. Watch video here. These moves of desperation by Big Labor are no surprise to our newsletter readers. Union membership in the private sector is falling, due both to lack of satisfaction with union representation and rising unemployment; union approval among the general public is on the decline; the call to ban collective bargaining among public sector (or at least government) employees is on the rise. As Terrence Scanlon of the Capital Research Center succinctly sums up:
Labor unions are a relic, a unique product of 19th-century demographics and an early-20th-century industrial economy. In the 21st century, workers live longer, are more mobile, change jobs often and serve an increasingly service- and information-driven economy, factors ill-suited to the old labor ways. In the face of such hostile socioeconomic forces, Big Labor bosses see the continued power of liberals in Washington, and especially the prospect of the mass unionization of health care workers under Obamacare – as their last, best hope.
Big Labor has put all their eggs in the political basket for quite some time – they feel they have no real choice, as Americans continue to prove that when given the option, they prefer by wide margins to work without unions. This is not to say unions are out of the fight – a cornered bear will fight ferociously until dead, as AFL-CIO head . In fact, the worst possible scenario may be that unions finally decide that they can no longer rely on Democrats, and instead capitalize on continued economic frustration over the next few years. Due to their entrenchment in the public sector, many of them will have the resources to carry on the battle for quite some time. ********** Labor Day Salute to Labor Hypocrisy 
Human Events commentator Deroy Murdock has done a masterful job of highlighting Big Labor’s hypocritical philosophy to “do as I say, not as I do.” Among the enumerated examples:
• United Federation of Teachers employee Jim Callaghan was fired for attempting to start a union among the employees of the UFT. • Philadelphia union boss Henry Nicholas refused to recognize a bargaining unit of 20 of his own staffers at the AFSCME, despite the fact that “all staffers” had signed cards. • Teamster president Jimmy Hoffa chided his unionized employees during recent negotiations, asking “that workers share in the prudent belt-tightening,” adding he will not “commit to a collective bargaining agreement that jeopardizes the financial health of your International Union.” He concluded: “Though it pains us to do so, we must make contingency plans to operate in the event of a labor dispute.” • When the UAW fired 120 of its staff, and the remaining staffers rejected its austere contract proposal, the union bosses imposed it on the workers. • UFCW Local 971 in Massachusetts sacked 40% of its business agents with no warning. (I wonder who is representing the employees…) • Dozens of SEIU staffers picketed the SEIU national headquarters when 75 employees were axed. • When the Teamsters built their new union hall in Houston, they didn’t use union labor because it was too expensive. • When the AFL-CIO refurbished its Washington, D.C. headquarters, it used non-union electricians and construction workers to “save us some money.” • Unions have continued to hire non-union workers to picket employers for hiring non-union workers.
Perhaps Big Labor needs a spoonful of its own medicine. ********* Healthcare Employers Under Pressure 
The Labor Department continues to pressure the sensitive healthcare industry, ramping up investigations of wage violations among hospitals and nursing homes. We’ve warned of this trend in earlier posts. Such pressure is another weapon in Big Labor’s arsenal to attempt to wrestle neutrality agreements from healthcare employers. As one labor law blog sums up:
The explosion of wage and hour actions against healthcare employers is due in large part because it is one segment of the economy that is growing and expanding its workforce, especially now with the enactment of health reform. Plaintiffs’ attorneys are also becoming much more aggressive in their efforts to target vulnerable employers. No longer waiting for a disgruntled employee to make a complaint, plaintiffs’ attorneys are using the ease of the internet to identify potential class members and highlight their investigations against susceptible hospitals and healthcare providers. In response to the renewed attention by the government and plaintiffs’ counsel, all healthcare employers must be on alert and understand that they are increasingly the focus for a government investigation or a class action lawsuit.
One hospital system in St. Louis has had to cough up $1.7 million. A Boston system agreed to pay $2.7 million, and even though a large California system denied any wrongdoing, it agreed to a $7.25 million settlement. The threat of such action is a very large club indeed. ********* FREE 2009 NLRB Elections Report With the NLRB bending over backwards to make it easier for unions to attack your company, now more than ever it pays to have solid intelligence about what unions are up to. LRI has created a new NLRB Elections Report that will provide a bird’s-eye view of union activity. Filled with colorful, easy-to-read charts and graphs, and broken out in a variety of ways, the information is easy to digest. We want to send you this free 22_ page report for 2009 as a thank you for being an LRI INK subscriber. Head to this page to see more details, and to download your free report. https://lrionline.com/elections-report ********* Harbinger Of Things To Come? 
Retirees of a Dearborn, MI, steel plant once affiliated with Ford will likely see their pension payments reduced, and in some cases garnisheed. After a seven-year legal battle with the UAW, the federal Pension Benefit Guaranty Corp took over the pension fund. When the bankrupt plant was sold to a Russian buyer in 2004, the buyer declined to assume the pension plans. The court gave the PBGC approval to take over pensions retroactively to October 2005, which means those who kept collecting pension money after bankruptcy may have to give some back. A similar situation is brewing in Philadelphia, where the potential buyer of two ailing newspapers is unwilling to take the defined benefit plans in the package, but instead desires to steer the money into individual 401[K] plans. Out of the 15 bargaining units, 5 are holding out. If an agreement cannot be reached by Sept. 14th, the deal may fall through. With so many union pension funds in marginal and even critical shape, and the difficulty getting unions to yield concessions required by many companies to remain solvent, we may see more of this in the near future. ********** Braggin’ Rights 
As difficult as it is to decertify a union, there are still American workers who defy the odds (and union abuse) to do so! According to UnionFreeAmerica.com, the prestigious Most Decertified Union Award for 2010 goes to… the Teamsters (applause)! The award goes to the union losing the most decertification elections in the preceding 12 months. To win the award, the Teamsters lost 48 of 64 elections (a 75% loss rate). Runner up was United Food and Commercial Workers (UFCW), who lost 9 out of 16 for a 60% loss rate, and honorable mention went to the International Union of Operating Engineers (IUOE), which lost 8 out of 8 for a 100% loss rate. Congratulations to all! ********* Only In A Union 
The California Nurses Association (CNA-NNOC) provides continuing education credits to nurses who take time off work to attend political rallies! Some California lawmakers were so disgusted with the practice that they attempted to pass legislation to restrict the practice. Unfortunately, not enough legislators had the guts to cross the union, and in a party line 6-3 vote the measure was rejected. ********* From Big Shot to Jail Bird 
Alejandro Stephens once represented 50,000 L.A. County employees as head of the SEIU Local 660. He will now take his place behind bars as a common criminal. The former SEIU executive pleaded guilty to mail fraud and tax evasion, having been charged by federal prosecutors of bilking the union of $52,000. As is typical with the SEIU, the local no longer exists, but was merged with other locals as part of a “restructuring.” ********* Fast Food Chain Feels The Heat 
According to a press release by the Jimmy John’s Workers Union (an IWW affiliate), protests involving leafleting and picketing were held in 32 states over Labor Day. The effort to unionize Jimmy John’s workers could have profound implications across the fast food industry, a sector with currently low rates of unionization. In 2009, only about 1.8% of food service workers were represented by a union. Although typically staffed by young and transient workers, the difficult economic environment and low union penetration, coupled with union desperation, may finally make fast food establishments a viable target for union efforts. The Jimmy John’s Workers Union boasts of being the first union for fast food service workers, and is open to membership for Jimmy John’s employees across 39 states. ********** A Win For The Good Guys In an uncharacteristic decision by the current NLRB, the board sided with workers and ruled that a union violated its duty of fair representation in requiring nonmember dues objectors to restate their position every year, despite their express desire to have the objection continue from year to year. An employee of a Florida-based company took the IAM to task for requiring him to file an objection annually, requesting that his written 2003 objection be considered indefinite. When the union charged the employee monthly dues again in 2004, he filed a charge, which the board upheld. Only one of the five board members dissented (Mark Pearce). ********** Fair Weather Friend In Minneapolis, Unite HERE Local 17 walked away from employees of Murray’s Restaurant, which have been union-represented since 1946. Nancy Goldman, president of the local, commented, “In a small shop like that, where they have a few workers who are wanting to carry the company’s water at the expense of the rest of them, that’s not a group I want to represent,” she said. “They don’t deserve it.” When the current contract expired in September of 2009, the 40 members twice voted down contracts that called for concessions. Owner and general manager Tim Murray said the recession has taken its toll, as locals cut back on eating out, and the weekday convention business died down. “We needed serious financial assistance from the union,” he said. “We tried to open up discussions six months before the contract was opened up. They weren’t open to talking about it then.” When the restaurant made its last and final offer, the union simply walked away from the table. Shane McCaffrey, a server at the steak house, filed a complaint against the union for not properly representing workers, and started a drive to decertify the union. “We like our management team,” he said. “We like the Murrays. They have a high standard of integrity. They were being ethical and honest. I can’t say the same for the union.” ********** Sticky Fingers Current charges or sentences of embezzling union officials: Crystal Lynn Croston LIUNA $1,344 Joseph Kerwan SMWIA $6,928 Richard James AFGE $1,550 Jeffrey Kenney IBT $10,306 http://www.nlpc.org/union-corruption-update
