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When Will the Other Shoe Drop in the NLRB? 7/29/2011

By: Ricardo Torres

The National Labor Relations Board (NLRB) has made many changes in recent times and is poised to make many more in the latter part of 2011. They claim that the changes will make the election process “simpler” and “cleaner”. But behind this mask is a pro-labor mentality dead set on changing the landscape of union organizing efforts in America.

Since the demise of the Employee Free Choice Act (EFCA), I have been saying that the Obama administration was going to use a “back door approach” to provide big labor with the changes that they have desperately sought since backing Obama after he promised pro-labor reform during his campaign efforts. My sources inside the AFL/CIO tell me changes are coming soon. You don’t need a crystal ball to see these changes coming, just look around the country and look at board decisions and how they affect how companies do business. I have written many times on how the unions were working overtime to push the NLRB into making drastic changes in the rules relative to organizing. Truth be told, some of the changes have been so dramatic that they threaten to change the core of the National Labor Relations Act (NLRA) and this is only the beginning. The NLRB has a lot of work ahead of them before the next Presidential election.

One way unions plan on shortening the election process is through NLRB rule making. Just last month, the NLRB proposed a rule that would “streamline” the election process, cutting virtually every current deadline in half. For example, the length of time from petition filing to pre-election hearing would be one week. Another portion of the proposed rule would require that the employer provide a draft Excelsior list prior to the pre-election hearing, and the final list within two days of the setting of the election date. Also, any unfair labor practice hearings alleging election misconduct would have to be held within two weeks of the election. According to David Keene, an attorney in the Las Vegas office of Littler Mendelson, “Without a doubt, this proposed rule is designed to greatly limit an employer’s ability to respond to an election petition or respond to union allegations of election misconduct. Two weeks isn’t nearly a sufficient amount of time to investigate union allegations or put together a defense.”

The difference between how hard unions are willing to work for a cause and how hard management is willing to work comes down to dedication, persistence, and a strong belief by activists that they are part of a movement bigger then themselves. When I was an Organizing Director within the union machine, we lived by the saying that we would “win by any means necessary.” I used to have people working for me 24/7 on a lowball salary with no overtime. People would of cut their hand off to defeat management. Before I came to my senses (and left the union), I truly believed that management was my enemy and it was my job to beat them anyway I could, no matter what it took. The union has become expert brainwashers. Once you get into the union system, you are “trained” to believe that working for the union is a “calling” of the greater good. Unfortunately, too many members of management think of their careers as “just a job”. This is a weakness that unions capitalize on when seeking reform in the NLRB. It is important for managers to realize that they have a “calling” as well. Management’s “calling” is to lead employees to success. In order to lead employees to success in a union free environment management must stay a step ahead of the union at all times. When the Employee Free Choice Act fizzled out, most management professionals walked away from dealing with the issues when in fact, the union bunkered down even more with a new approach.

In an April 2009 edition of the Wall Street Journal a headline read: Card Check is Dead. Then AFL/CIO Secretary-Treasurer Richard Trumka, on a Sunday news talk show blitz where he and other union leaders spoke, declared they would get the changes they are fighting for one way or another. The White House lobbying intensified ten fold. My Washington D.C. AFL/CIO inside sources told me that the national union leaders received assurances the unions would be rewarded for their support of the Democratic Party. (Note – I personally testified against the EFCA to Congress).

Union leaders knew that management would become complacent and drop their guard after a while. This is par for the course in the union game. When I was a union official, our leadership team always looked and planned for the future (5, 10, 15 and several more years ahead). The same should hold true for management looking to stay ahead of the union. While eminent “big” changes haven’t happened yet, several small changes have. These changes are a precursor to plans made many years ago by big labor and political supporters of big labor. By looking ahead, you can prepare changes to your playbook. You can stay ahead of the union.

Like I stated earlier, these changes are coming. I said you don’t need a crystal ball but you do need to take a look at what is happening around the country. Here are only a few interesting NLRB decisions that will show the trends of this board:

Terry Machine Co., 356 N.L.R.B. No. 120 (2011), has found that a supervisor solicitation of petition signatures supporting the union is not objectionable. In this case, the supervisors collected signatures and spoke at employee meetings and campaign in support of the union. This decision can lead to core changes on how upper management deals with front line supervisors and what position they will take in union organizing campaigns.

Wyndham Resort Development Corp 356 N.L.R.B. No. 104 (March 2, 2011) - The employer stated that as part of their company dress code the sales persons needed to keep their shirts tucked in. Two employees started complaining about the rules. One of them became very aggressive and argumentative and incited another employee to join in the argument. The supervisor wrote him up. The NLRB said that the write up was unlawful because the employee was engaging in protected, concerted activity because he used the words “we” and “us” and another employee joined him in arguing with management about the new dress rule. This ruling shows the protection the board will give employees under the “protected, concerted activity” clause of the NLRA and puts employers on notice that they should finds alternative ways to address employee complaints.

Employers are always faced with employees who challenge management at every opportunity and the question is what are “protected, concerted activity” and this ruling blurs the lines more.

Dana Corp., 356 NLRB No 49 (December 2010) – This ruling indicates that the NLRB is privileging interests of labor unions over individuals who the law is designed to protect. The unions know it is easier to organize the employer then the worker and can use pressure tactics to get the company to give in to its demands.

Sheet Metal Workers Local 15 (Galencare Inc. d/b/a Brandon Regional Medical Center), 356 NLRB No. 162 (May 26, 2011) - This decision allows the unions to use blow up rats and other rodents in front of businesses not directly involved in a union dispute and it weakens the protection companies have against secondary boycotts used against them.

AT&T Connecticut, 356 N.L.R.B. No. 118 (2011) allows employees to wear shirts that criticize the company. This decision allows workers to speak out about disputes against their employer to clients (in this case to AT&T customers).

Union members were unhappy with the pace of contract negotiations and decided to put on shirts critical of the company saying “Prisoner of AT$T” with the dollar sign. This ruling stops AT&T from protecting it brand name.

Just the Tip of the Iceberg… More Changes to Come

My sources tell me there are many more changes that they are confident will come to pass over the next year. For example, the USW has been working on winning the right to organize Minority Unions (or Micro Unions) for years. In Specialty Healthcare, the union can “cherry-pick” groups that support the union without giving non-supportive co-workers the opportunity to vote. This change would reverse over 50 years of bargaining unit guidelines. Imagine the disorder within the workplace if a company is forced to bargain with multiple unions for similar workers. Imagine the confusion and time spent managing the process and how it would negatively affect productivity and competitiveness. Imagine what would happen if there ever was a strike.

You can expect changes in some (if not all) of the following areas as well:

  • Representation rights of nonunion workers
  • Limitations on liability for pay back to union salts
  • Employer rights to permanently replace economic strikers
  • Whether an employer’s reasonably based but unsuccessful lawsuit against a union constitutes an unfair labor practice when initiated with a retaliatory motive
  • The standards for combining in one collective bargaining unit temporary workers jointly employed by a staffing company and a client employer with regular workers solely employed by the client employer
  • Increased penalties for employers for Unfair Labor Practices including punitive damages
  • Bad faith bargaining penalties
  • Increased restrictions on attorneys and labor consultants
  • Mandatory mediation or arbitration for first contracts (In fact, for unions this was the most important part of the EFCA. Unions win 68% of organizing elections. The problem is getting a contract. Most of the time they can’t get an agreement and have a hard time defending their record during an organizing campaign.)

Shortened Election? The Ultimate Goal of the Union.

But I think the subject with the biggest impact for unions and management will be quickie elections. The NLRB (and union leadership) are looking to shorten the time it takes for a union to get an election. The unions feel they can get it down to between 10 and 15 days with the hope they can someday get it down to a 5-day election timeline like most of Canada. I worked on a merger between the Canadian Retail Workers Union (RWDSU) and the Steelworkers. We used this short election cycle to organize thousands of new members. In fact, the reason Leo Gerard was moved in to the President’s position, was because of his organizing victories in Canada. Organizing in Canada was a cakewalk. If you couldn’t organize in Canada, you couldn’t organize anywhere. It was always our goal to get a Canada style election process in the U.S. while I was still inside the union.

Unions feed off problems and mistrust between employees and management. They hide in the dark until they have enough support to win by a strong margin. With a short election cycle, companies will have a hard time deprogramming employees after several months of misrepresentation and misinformation delivered to them by unions organizers, building up anger and resentment towards management.

Conclusion

Again, changes are coming. In essence the current NLRB has become an activist board for the union movement. They are trying to reverse what they think are decades of management favoritism and failing their first and foremost fundamental reason for existing. The NLRB purpose is to protect the individual worker with a “neutral” point of view (from management AND the union). The NLRB was not created to take a position that unions are generally good for everyone whether they want it or not. The NLRB was certainly not created to force unionization down everyone’s throats.

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