Labor Relations Insight September 2015

by | Sep 22, 2015 | Labor Relations Ink

Harry Johnson’s NLRB term expired on August 27th. It was way too short. Thankfully Member Johnson was able to leave a few parting shots before he departed. There have been so many important changes over the last few weeks it is impossible to cover them all. These are the things I’ve been asked about most and a few thoughts about the implications: Who is going to replace Harry Johnson? I haven’t seen much buzz on this so far. The only rumor I’ve seen suggests Roger King. Roger would be a terrific choice – he’s among the sharpest labor lawyers I know. Don’t just take my word for it – read the AFL-CIO’s reaction. They say Roger would be a “finger in the eye of the President.” While they didn’t mention which finger, I don’t think the AFL-CIO gives any higher recommendation than that. Electronic Signatures. This actually isn’t an NLRB decision, so Johnson didn’t get a chance to dissent. Instead, the General Counsel responded to a request in the ambush election rulemaking to comment on whether or not it was feasible to accept electronic signatures. The General Counsel really overachieved here, not only saying it was feasible but outlining exactly how he’d accept them. Needless to say, you can expect to see petitions supported by electronic signatures soon. How big is this change? I’ve already explained why I think it’s a terrible decision. Bottom line, it will increase the ability of unions to get “soft cards” in an organizing campaign. I think for employers this means increased petitions. However, I think unions will lose more elections supported by electronic signatures because people just don’t mean what they sign electronically. Joint Employer. The BFI decision finally issued. This is a victory for unions, but I think its overall impact is overstated. While BFI gives unions some interesting new tools to use, especially in situations where they already represent workers, I don’t think it is the end of the world. In some ways the decision hurts unions. It increases the likelihood an employer will get involved earlier and more forcefully in the labor relations activities of an often less sophisticated contractor employer. It increases the chances an employer will expand attempted bargaining units, making these units harder to organize. And it doesn’t really make the organizing job any easier than it is today (you still have to convince workers in either unit to buy a pretty lame product). This decision does create more opportunities for unions to be a nuisance, although even here I’d say the practical difference is small. Today unions often use the relationship between the contractor and the larger employer entity as a way to pressure the larger company, even without a “joint employment” relationship. This decision tightens that relationship, but as a practical matter unions (not to mention the news media and the public) never really look at these entities as separate anyway. Dues Checkoff. In Lincoln Lutheran of Racine the NLRB upended a half-century old precedent, requiring employers to continue deducting union dues after a collective bargaining agreement expires. Even though the Board is supposed to be promoting labor peace, this decision guarantees fireworks in upcoming contract negotiations around the country. Employers now have the perfect excuse to remove dues checkoff out of their contracts (or extract some decent concessions in exchange for keeping the clause). Unions are definitely going to regret asking for this change. Ambush Election Rule. We’ve had the ambush rule for just over 4 months now. The charts below tell the tale, but election periods have shrunk pretty close to 25 days. Slide1Petitions are up, but not nearly as much as it looked like they might be when the rule first went into effect. Slide2 Nearly all of the new petitions are in small units of under 10 employees. Slide3 That’s the latest on the new election rules and the latest out of Washington. There should be a bit a break in the action until a new Republican member of the Board is seated. That is unless the Board abandons its longstanding practice of only issuing important decisions with a 5-member panel. There is no reason to believe they would stop following such a time-honored precedent. Oh, wait. Maybe there is… stay tuned.

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