Union Elections

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

BNA's Research and Custom Solutions division analyzed data provided by the NLRB and came to a few surprising conclusions. The study shows that, although the number of elections has remained roughly the same from 2011 to 2012, unions have actually been less successful in 2012. This paradigm applies to representation and decertification elections.

The study also compares the relative success rates of different unions and analyzes these elections per major industry.

As we previously reported, a judge with the D.C. District Court invalidated the Board’s  controversial “ambush” election rules last month on essentially a technicality, finding that the three-member Board did not establish a quorum prior to voting on the rules because Member Brian Hayes did not participate in the voting.  The Board responded to that ruling this week arguing that Member Hayes was in fact present at the voting (which occurred electronically) because of his interactions with the Board’s internal electronic system on the day of the vote.  The Board requested that the court reconsider its ruling in light of this fact and reinstate the rules until a final decision on their legality is issued.

The Board’s motion is an interesting look inside the voting and opinion-writing process of the NLRB and presents difficult questions of what it means to be “present” when voting takes place electronically.  But like the court’s opinion, the Board’s motion concentrates only on the voting technicality and not the broader issue of the legality of the actual rules. The rules remain suspended for now, but it remains to be seen whether the D.C. District Court will be willing to look beyond the voting technicality and directly address the legality of the ambush rules.

The Board’s motion is available here.

See our previous coverage of this issue here.

The NLRB caused quite a stir when it issued Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83 in September, 2011.  In that case, the Board departed from precedent and raised the governing standard from "community of interest" to "overwhelming community of interest" when determining what constitutes an appropriate bargaining unit in a nonacute healthcare facility. The decision was controversial as it set the stage for mini-bargaining units, and based upon its stance on appeal in this matter, the Board is sticking to its guns. 

In its brief, the NLRB defends the "overwhelming community of interest" standard by claiming that it is nothing new, but is simply a clarification of the long-standing test.  Additionally, the Board defends its discretion in determining whether a unit is appropriate.

Download a copy of the brief (PDF)

Today is the day that the NLRB's new quickie election rules go into effect. These are significant changes to the election rules that organized labor has sought more decades. The changes will make it significantly harder for an employer to get an opportunity to get its message out once a petition has been filed. It will also increase the risks employers will have to take to campaign effectively after the petition is filed.

There is a potential that there will be a spike in union organizing and in election petition filings as unions may have held back for these rule changes to take effect. Prudent employers will be proactive as to their messages regarding the issues of union organizing, because although a union will be able to campaign for months before it files its petition, after it does, there may very well be just a few days before the Board rushes to an election.

We recently reported that The White House was threatening to veto legislation aimed at overturning a controversial rule promulgated by the NLRB aimed at speeding up union elections. No need. The Senate has rejected a Republican led attempt to overturn the new regulations. The defeat in the Senate was hailed by several unions including the Teamsters.

The Washington Post's story can be accessed here. 

The White House is threatening to veto legislation aimed at overturning a controversial rule promulgated by the NLRB aimed at speeding up union elections. According to the White House, “[i]f the president is presented with a Resolution of Disapproval that would reverse these measures adopted by the NLRB, his senior advisors would recommend that he veto the Resolution.”

The full story from The Hill can be found here.

The 11th Circuit yesterday upheld a $1.7 million jury verdict against the Southeastern Regional Carpenters Council for illegal secondary boycott activity.  The full opinion is now available.

According to the union's own written materials, it started a campaign against a non-union contractor in Atlanta because the contractor "simply . . . pick[ed] up too much [potential union] work downtown.”  The union decided “to eliminate the threat" within 90 days.

The union's boycott included a large protest outside Emory hospital.  The union chose to “hit [Emory] hard and fast” because “the prestigious Emory hospital would probably not want demonstrators outside their building.” At least 130 picketers confronted patients and visitors of the hospital and shouted “Rat!” and “Stop the Rats!” at those who crossed the picket line.  The union protested over the course of many months at several other sites where the non-union contractor had jobs, and their standard tactics included shouting things at visitors like “Rats out!,” “There [are] rats in the building!,” and “B___ rat!”

In upholding the large damages award, the Court found the contractor proved it would have earned more profits but for the picketing, so the jury was entitled to award it damages based on lost opportunities to bid.  The Court concluded, “This . . . go[es] beyond the Union’s alleged desire to . . . ‘level the playing field’; this is the blatant elimination of competition.”

‘Tis the season for year-end recaps, and we here at BT Labor Relations couldn’t resist taking our own look back at the year in traditional labor. As we move into 2012, here’s our countdown of the top ten traditional labor issues that made the news this year. Numbers 10 through 6 are below, and an article highlighting our top-5 can be accessed by clicking here. 

10. The Board sues Arizona over secret ballot constitutional amendment

2011 started off with a bang in January when the Board’s Acting General Counsel Lafe Solomon threatened to sue four states (Arizona, South Carolina, South Dakota, and Utah) over their secret ballot union election constitutional amendments.  All four states added provisions to their state constitutions mandating that union elections be held by secret ballot only, after constitutional amendments passed by public referendum at the November 2010 election.  These constitutional amendments were in response to the Employee Free Choice Act (EFCA) proposed in Congress in 2009, which would have required an employer to recognize a union if a majority of employees signed cards stating their desire for representation.  This “card check” method of recognition is currently allowed by the NLRA, but employers have the option of demanding that election of the union be confirmed by a secret ballot.  EFCA would have taken this option away from employers (as well as enacting other pro-union changes to the NLRA). 

EFCA never became law, but the constitutional amendments in these states passed anyway, purportedly preserving the right of a secret ballot election for employers in those states.  The amendments as they currently stand do not conflict with the NLRA, but the NLRB nevertheless took exception to them, claiming that such state provisions are preempted by federal law.  After a back and forth discussion with the states’ Attorneys General during the early part of 2011, the NLRB filed suit against Arizona in May, asking the court to declare that Arizona’s constitutional amendment was preempted by federal law and therefore unenforceable. 

Although EFCA never became law, the NLRB has made attempts to individually implement many of the pro-union changes proposed in the bill, and Arizona has become the battleground for card checks.  So far, the NLRB’s lawsuit appears to have some traction.  The Arizona federal court hearing the case has denied Arizona’s motion to dismiss and litigation continues.  Stay tuned in 2012 as this issue continues to develop …

See B&T’s previous coverage of this issue here.

9. The NLRB strikes a blow to mandatory arbitration policies in Supply Technologies

Companies love mandatory arbitration policies in contracts and in May, the U.S. Supreme Court issued a landmark decision in AT&T v. Concepcion upholding such policies in consumer contracts.  Employers also see the appeal of mandatory arbitration clauses and many union contracts include such provisions.  However, an NLRB Administrative Law Judge reminded employers of the limits of such policies in a decision in June, finding in Supply Technologies LLC that an employer’s arbitration policy violated the NLRA by unlawfully restricting employees’ rights by suggesting that an employee had to bring any unfair labor practice charge through the arbitration procedure, and thus could not make that charge with the Board. This decision served as a warning for employers hopeful after the Concepcion decision that arbitration provisions should be carefully reviewed before being included in collective bargaining agreements.  Employers should know that just because SCOTUS approves, doesn’t mean the Board will.

See B&T’s previous coverage of this issue here.

8. Congress sits up and takes notice (although no new legislation is actually passed)

With a new majority in the House of Representatives after the 2010 elections, certain Republican members of Congress have made the NLRB their new target this year. Several hearings were held by Congressional Committees to discuss what many characterize as the pro-union, “activist agenda of the National Labor Relations Board.”  The Board’s complaint against Boeing was a frequent target, as well as its decisions regarding posting requirements, “quickie” elections, and “micro” bargaining units.  

Additionally, Republicans in both the House and the Senate have introduced bills to amend the NLRA to reverse these controversial actions taken by the NLRB in 2011.  The Democrats weren’t able to get EFCA passed when they had a majority of both houses, so it is unlikely that any of this legislation will actually be passed by a divided Congress, but the NLRB’s continued perceived pro-union actions have made traditional labor a key issue as we move into the 2012 election season. 

See B&T’s previous coverage of this issue here.

7. General Counsel memo regarding mandatory language in settlement agreements puts additional pressure on employers

This year, the Board has placed additional pressure on employers looking to settle NLRB proceedings with the issuance of a memo by General Counsel Solomon in January which requires mandatory language in settlement agreements whereby an employer in effect agrees in advance that if it is even accused of violating the agreement, all of the prior charges against it have merit.  Although the Board characterized this language as necessary for effective enforcement of such agreements, this requirement likely has the effect of simply making employers less willing to settle a case.  And it was another example of the Board’s aggressive efforts to secure rights for unions in 2011.

See B&T’s previous coverage of this issue here.

6. Specialty Healthcare decision opens the door for “micro” bargaining units

One of the Board’s more controversial decisions of 2011 was issued in August regarding appropriate bargaining units.  In Specialty Healthcare (357 NLRB No. 83), the Board overturned 20 years of precedent regarding determination of an appropriate bargaining unit in non-acute health care facilities. The Board increased the burden on employers who wish to challenge a bargaining unit petitioned for by a union to include more employees.  Under the new standard, employers have the burden to prove that the employees the employer believes also should be part of the unit share an “overwhelming community interest” with the petitioned for employees.  The previous rule (as articulated by the Board in Park Manor Care Center, 305 NLRB 872 (1991)), applied a lower standard:  whether the community of interest of the employees the employer sought to include was “sufficiently distinct from those of other employees” in order to justify their exclusion from the bargaining unit. 

The upshot is that this decision allows unions to pursue so-called “micro” bargaining units, and it will be easier for unions to certify bargaining unit(s) piecemeal, even when a majority of employees in a facility do not desire union representation.  This decision helps unions trying to “get a foot in the door” by allowing them to target vulnerable employer sub-groups. 

This decision was targeted by legislation introduced in Congress to reverse it, but for now, it remains current Board law and sets up new challenges for employers seeking to avoid unionization.

See B&T’s previous coverage of this issue here.

Disagree with our picks?  Let us know in the comments what traditional labor issues you think were most important in 2011.  And don’t forget to check back tomorrow for our top five!

Union elections in the airline and rail industries just got a bit easier for Unions. 

The U.S. Circuit of Appeals for the D.C. Circuit in a 2-1 decision upheld a decision by the National Mediation Board (NMB) to change the majority of votes rule in representation elections. Since 1934, members of the proposed bargaining units were counted as “no” votes if they decided not to vote in the election. But the NMB decided earlier last year that the rule should be a majority of the votes actually cast instead of a majority of the eligible voters.

On Friday, Dec. 16, 2011, the D.C. Circuit, in a case entitled Air Transport Association v. NMB, decided that the rule change was not an arbitrary and capricious change. In fact, the court determined, since the statute was silent on the issue, it suggests deference to the agency in deciding how votes were to be counted.

“As the district court observed, nothing in the [Railway Labor Act] clearly and unambiguously requires that a majority must participate in order to have a valid election,” the opinion said. “The fact that a majority of eligible voters decides to abstain — i.e., not exercise its right — hardly suggests that the majority was deprived of its right. This is how voting rights work.”

You can access the decision online by clicking here.