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Updated: 2017-09-19T06:55:32.174-04:00


President-Elect Obama on EFCA


President-Elect Obama recently discussed the Employee Free Choice Act with the Washington Post editorial board. The audio is here, and the relevant portion starts at the 56-minute mark.

Former Board Member Peter Kirsanow also spoke about the bill on January 17 with the host of America's Business, a production of the National Association of Manufacturers. A link to the audio is here, and Kirsanow's interview starts around 21:30.

Follow-Up on Proposed Reform


Joe Brock, from Laboring Away at the Institute, posted a comment to my proposal for labor law reform. Below, I break his comment into segments and respond. His comments are in italics and my responses are in bold type.I've been looking over your proposal with some interest, and I have some comments that i'd like to share. Your statistics are obviously well researched, and I think these statistics would be surprising to the general public who might not have the benefit of the numbers. For example: You correctly note that the median time between petition and election was 39 days in 2007. I think that would surprise many who have come to the conclusion in listening to the unions argument that it routinely took much longer. I think that 39 days from petition to election is about what it SHOULD take to make such a potentially career changing decision. You focus on the half of elections held within 39 days and say the law does a good job. I focus on the half of elections that take more than 39 days (including 7% that take more than 56 days and the small minority that take many months) and say that the law can do a substantially better job. There is no need to wait months. We can do better.7-21 days is clearly not enough time if you want your employees or potential members to do their own research based on the facts being offered in a campaign. Who you choose to represent you will impact your income and possibly your personal future more so than who you choose to be your President.Twenty-one days is long enough for employees to perform independent research. Employees would be free to wait that long before casting their ballots. Employees who think they have enough information would be free to cast their ballots 7 days after petition (but no sooner). Employers are thus guaranteed 7 days to communicate their views. That is plenty of time. Moreover, nothing would prevent employers from communicating generally about unionization before any petition is filed. Employees appreciate as well anyone that their decision is important and that each side’s views should be taken with a grain of salt.Holding an election without a decision on the apropriateness of the unit being clarified is a non-starter with me. As you correctly point out, these issues are rare, and the Board does a great job in getting the parties to reach agreement on this when it becomes an issue. I think that if there was going to be a "trial run" it would open up the potential for MORE questions of appropriateness, allowing the employer a free bite at the apple, or a peak under the covers, as it were. Win the "trial run" and drop the question. Lose the election and appeal forever. It would get abused as part of an election strategy.What if the Board were to conduct the election, impound the ballots, fully resolve any dispute over unit appropriateness, and finally conduct the tally of ballots? That procedure would alleviate your concern about an increase in unit-appropriateness disputes because employers would have to litigate the issue before knowing the election result. That procedure would also prevent unit-appropriateness disputes from greatly delaying elections and thereby minimize the temporal opportunity for coercion by both sides. I'm also not on board with Internet and telephone voting. little or no delay in the election process can be attributable to the physical process of setting up a time and place. 28 days doesnt normally become 40 because the Board agent has a scheduling conflict. Besides, i've been involved with many union elections. The process currently in place is damn near impossible to manipulate. You walk into a room with observers from both sides, you fill out a ballot in secret, put it in a box that never leaves anyones sight. The Board agent knows how many ballots went out, and they're printed on unusual paper. They count them in front of everyone. It's the fairest election process i've seen. In fact, it's the ONLY fair process as far as unions go. This is why they want to change it. Internet and telepho[...]

A Proposal for Telephone & Internet Voting, Speedy Elections, and Interim, Members-Only Bargaining


Delay is a significant problem under the NLRA. The Board took more than 100 days to resolve 21% of representation cases in the fourth quarter of FY 2007, and initial bargaining can be further delayed by an appeal to a circuit court. NLRB Performance & Accountability Report FY 2007 at 39-40.At least two types of delay can occur during the representation process, thereby postponing initial bargaining: (1) the delay between the date an election petition is filed and the date the NLRB conducts the election; and (2) the delay between the date of election and the date of a final determination that the employer is legally obligated to bargain with an elected union. The first type of delay occurs in all representation cases. The second type of delay occurs in a small minority of cases. However, that delay can be extremely long, and it severely frustrates employees’ collective-bargaining rights. Both types of delay are largely a consequence of current law, not the fault of Board personnel.To speed up the representation process, I propose that the Board start conducting elections by telephone and the internet, as does the National Mediation Board. Second, I propose holding elections before resolving disputes over unit appropriateness. Finally, I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of employees voted in the union’s favor. Below is an elaboration of the problem and my proposals. I’m looking forward to anyone’s comments or counterproposals.Delay In Holding ElectionsIn the vast majority of cases, at least 28 days elapse between RC petition and election. The median was 39 days in FY 2007. Memo GC 08-01, at 2. In seven percent of cases, it took longer than 56 days. Id. In a very few cases, it can take quite a while. See, e.g., TransCare Paratransit, 29-RC-11482 (2008) (8 months); Marymount Manhattan College, 02-RC-23151 (2008) (17 months).Long delays between petition and election are sometimes attributable to a dispute over the appropriateness of the petitioned-for unit. Parties were unable to reach an election agreement in 8.8% of RC cases in 2007 and 11.9% of RC cases in 2006. Memo GC 08-01, at 6. The Board’s current practice is to resolve a dispute over unit appropriateness before holding an election. See Sections 101.20 and 101.21 of the Board's Rules and Regulations. Understandably, it takes the Board some time to resolve the factual and legal issues presented. The election is held afterward.Delay between petition and election creates an opportunity for parties to coerce employees before they have recorded their sentiment. Even absent coercion, long delay tends to frustrate an organizing movement as employees’ interest in unionization might naturally wane. Thus, to promote collective bargaining and free choice, employee sentiment should be recorded as quickly as possible after the filing of a petition (while ensuring that all parties have notice and an opportunity to discuss unionization before a vote is taken).Facilitating Speedy ElectionsTo facilitate speedy elections, I first recommend that the Board adopt the National Mediation Board’s telephone and internet voting procedures. See NMB Representation Manual, Section 13; Internet Voting Comment Period, 34 NMB 200 (2007); Introduction of Internet Voting/Mock Election, 34 NMB 71 (2007); Telephone Electronic Voting, 29 NMB 482 (2002). The NMB has conducted elections by telephone since 2002 and by the internet since October 2007. The NMB assigns each voter two codes to be used in conjunction to keep voting anonymous and secure. Thus far, the NMB’s technology has maintained ballot secrecy.Using telephone and internet voting, the Board could feasibly hold elections over a period between 7 and 21 days after the filing of the RC petition. Upon filing, the Board could quickly notify the employer, require the employer to immediately post an election notice, obtain an Excelsior list, and send voting instruc[...]

Orrin Hatch on EFCA


Here is a some video from CNBC's Squawk Box of Senator Orrin Hatch criticizing the Employee Free Choice Act.

Agreements Not To Organize


As discussed at Workplace Prof Blog and Debris, the Wall Street Journal has reported on an agreement between SEIU and UNITE HERE on the one hand and two employers on the other that the unions won't seek to represent certain groups of those employers' employees. SEIU and UNITE HERE currently represent some of those employers' other employees.

The Board has given effect to an agreement not to organize a group of workers if "the promise be express, for a reasonable period of time and the result of bargaining between equals." Lexington House, 328 NLRB 894, 897 (1999) (citing Briggs Indiana Corp., 63 NLRB 1270 (1945). In Lexington House, the Board refused to process an RC petition where the petitioning union had promised the employer that it would not seek to represent the petitioned-for unit for 12 months. The Board found that the agreement's restriction was not contrary to the Act's policies.

It would be interesting to know what SEIU and UNITE HERE received in return for their promise. Increased wages for the currently represented groups? Better health care? Increased access to still other groups of unrepresented employees? It would also be interesting to know whether the unions had had any interest in organizing or plans to organize the off-limits group. I don't subscribe to the WSL, so can't access the full article.

More from Estlund and Hurtgen on the Employee Free Choice Act


After reading the written testimony to the Senate HELP Committee, I sent five questions to Cynthia Estlund and one question to Peter Hurtgen. They kindly agreed to let me post their answers.Questions to Cynthia Estlund1) How exactly would the EFCA's card-check provisions reduce employer coercion?A: Card check limits the employer’s opportunity to wear down the employees over weeks or months, and it would limit the opportunity to extend that period through procedural maneuvers. (Union avoidance consultants, which most employers hire when faced with a union organizing drive, are quite candid that they often need several weeks or more to erode the union’s majority.) Because majority sign-up is a rolling process, the impact of the employer’s campaign may also be diffused by the fact that some of the employees the employer is targeting have already signed up. The Eaton & Kreisky study (cited in my testimony) shows that, one way or another, employees report much less pressure from any source in card check than in election campaigns (and much less pressure from the union than from the employer in either type of campaign).2) Are you concerned that, under the EFCA, a law-abiding employer can lose the opportunity to engage in non-coercive speech on the disadvantages of unionization?A: There generally is time for the employer to convey information. First of all, employers are entitled to (and some do) tell employees their views on unionization in general from the first day on the job. As for information about the particular union, except for some very small units, the card check campaign doesn’t stay secret from the employer.In any event, employees don’t obviously have any less information about the union before signing a card than they generally have about the employer before taking a job. You can only learn so much before starting the job. So, too, the best way to learn about what it’s like to have a union is having a union. If you don’t like what you learn over time, and if a majority of your co-workers share your views, you can simply tell the employer that, and the employer can or even must withdraw recognition. When employees are dissatisfied with their employer, by contrast, their only real option is to quit (which of course is no less an option when employees are dissatisfied with the union).Finally, let’s keep in mind that employees who actually have union representation overwhelmingly say they prefer to keep it – 87-90 percent. Opponents of card check often seem to assume that it is some huge and fateful step for employees to choose union representation. But we make a lot of choices in life that are harder to undo, and that have at least as important consequences, with a lot less information and certainly without having to undergo a highly adversarial campaign over its merits.3) Would you support legislation that directly prohibits employers from engaging in non-coercive speech on the disadvantages of unionization?A: Apart from constitutional and other problems with such a prohibition, I have doubts about its enforceability, and the impact on already horrendous delays at the NLRB. (If I were able to snap my fingers and enact labor law reform, I would be more inclined to limit employer’s ability to compel employees to submit to captive audience meetings and/or their ability to exclude union organizers from the workplace than to regulate what they can say.) EFCA takes a different, less interventionist approach that allows organizers and employees to choose a different campaign structure instead of further restricting employer conduct.4) You declined to express an opinion on Section 3 of the EFCA, which addresses mandatory interest arbitration. Do you support Section 3?A: I do. Interest arbitration is not an ideal end to collective bargaining. But it’s necessary response to a serious problem, and it’s a better spur to good faith bargaining than[...]

Senate Hearing on Employee Free Choice Act


The Senate Committee on Health, Education, Labor, and Pensions is holding a hearing on the Employee Free Choice Act on Tuesday, March 27 at 9:30 a.m.

The witnesses will be:
Errol Hohrein, an employee who participated in an organizing drive
Cynthia Estlund, Professor, NYU Law School
Lawrence Mishel, President, Economic Policy Institute
Peter Hurtgen, Morgan, Lewis & Bockius LLP, former Chairman and Member of the NLRB, and former Director of the FMCS

The Employee Free Choice Act


On March 1, the House passed the Employee Free Choice Act (EFCA), H.R. 800, 110th Cong. (2007). That bill is highly unlikely to become law anytime soon. Senate Republicans will surely filibuster the bill, and Vice President Cheney has stated that President Bush will veto the bill if it reaches his desk. The bill probably will not garner enough support to overcome a Republican filibuster, much less a Presidential veto. Nevertheless, the bill merits discussion.If enacted, the EFCA would: (1) obligate the NLRB to certify a union based on a card check; (2) permit a newly-certified union to subject an employer to mandatory interest arbitration if the parties’ negotiations fail to produce a first contact; and (3) impose harsher penalties on employers that violate the NLRA.Proponents of the EFCA argue that current law does not adequately protect employees against employer coercion and that employees therefore cannot truly exercise free choice when deciding whether to select union representation. Under current law, an employer may lawfully refuse to recognize a union until the union wins an NLRB secret-ballot election. To obtain an election, a union must garner support from 30% of employees and file an election petition. The Board immediately notifies the employer about the petition and schedules an election. The median interval between petition and election is 39 days. During that time (i.e., the campaign period), an employer has an opportunity to unlawfully coerce employees by, for example, discharging union supporters, soliciting grievances, promising benefits, and threatening plant closure. The campaign period also creates an opportunity for employers to hold repeated non-coercive and non-objectionable captive-audience speeches and one-on-one discussions in which they urge employees to vote against union representation. Proponents argue that such speech (which I will call “unbalanced speech”) interferes with employee free choice, even though it is non-coercive and non-objectionable, because employees do not hear from unions to the same extent.EFCA supporters seek to eliminate or reduce unlawful coercion, objectionable conduct, and unbalanced speech through, among other means, card-check certification. Under the EFCA, the Board would certify a union after receiving a petition along with signed authorization cards from a majority of employees. There would be no election, and hence no formal campaign period. If a union is able to quietly gather cards from a majority of employees without the employer’s knowledge, the employer will lose its opportunity to counter the organizing drive with coercion and unbalanced speech. Even if an employer informally learns about an organizing drive, it might have fewer days to respond to the union’s campaign than the approximately 39 days it has under current law. For these reasons, proponents argue that card-check certification will help employees exercise truly free choice.Opponents of the EFCA counter that the secret-ballot election is the only method that ensures free choice. Behind the voting booth’s curtain, an employee can privately decide whether to vote for or against representation without either party knowing how she voted. If the EFCA is enacted, non-employee union organizers and pro-union employees would unlawfully coerce employees into signing cards. At best, some employees would sign a card after succumbing to lawful peer pressure in order to please organizers and pro-union colleagues. Some EFCA opponents assert that most employers do not coerce employees during union campaigns and argue that card-check certification is not the way to handle the bad apples.Would card-check certification reduce coercion, objectionable conduct, and unbalanced speech by eliminating the formal campaign period? Somewhat, in my opinion. In some cases, unions will quietly gather ca[...]

Former NLRB Chairman Edward B. Miller Passes Away


Edward B. Miller died on November 10, at the age of 84, after a long struggle with Alzheimer's disease. Miller, a Nixon appointee, served as NLRB Chairman from June 1970 to December 1974.

I had the pleasure of observing Mr. Miller argue an NLRB case to a court of appeals back in 2000. He was quite impressive.

Mr. Miller's jurisprudence lives on. Recently, a Board majority, citing one of his dissents, overruled precedent and held that the Board will no longer presume that an employer's threat of plant closure was widely disseminated to unit employees. Crown Bolt, Inc., 343 NLRB No. 86 (2004) (citing General Stencils, Inc., 195 NLRB 1109 (1972) (Chairman Miller, dissenting)).

This obituary appears in the Chicago Tribune. A tribute to him, authored by former Chairman John Truesdale, appears on the website of the ABA's Section of Labor & Employment Law.

New and Improved NLRB Website


The NLRB has updated its website. The website allows anyone, after registering, to access an electronic docket of any case pending before the Board. For example, you can view the electronic docket for Midwest Generation, 13-CA-39643, by clicking here and inserting "Midwest Generation" in the "Case Name" box. I discussed the Board's decision in Midwest Generation in this post. In that case, the Board held that an employer did not violate the Act when it locked out full-term strikers while allowing non-strikers and crossovers to continue working. The Seventh Circuit refused to enforce that decision and remanded the case to the Board with an order to find that the partial lockout was unlawful. The electronic docket is interesting in that it shows that the Board initially authorized the General Counsel to ask the Solicitor General to file a cert petition. Evidently, that didn't work out. The Board never filed a cert petition, and it actually opposed the employer's cert petition. The Supreme Court ultimately declined to take the case.

Pro-Union Labor-Law Reform Coming in China?


The New York Times has a very interesting article on proposed labor-law reforms in China. David Barboza, China Drafts Law to Boost Unions and End Labor Abuse, N.Y. Times (Oct. 13, 2004).

NPR on Oakwood


Below are some links to NPR coverage of the Board's Oakwood decision. Click the hypertext link and then the "Listen" button.

Labor Board Decision May Slash Union Membership
, Morning Edition (Oct. 4, 2004)

Supervisory Ruling on Nurses, Union, All Things Considered (Oct. 4, 2004)

Labor Board to Answer "Who is a Supervisor?", Morning Edition (Oct. 3, 2006)
(broadcast before NLRB issued Oakwood)

How Will Employers Respond to Oakwood?


A colleague recently speculated that some employers will respond to Oakwood by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses.

Statutory supervisors have no bargaining rights, and employers may lawfully discharge them for supporting a union. By increasing their employees’ authority and thereby rendering them statutory supervisors, an employer could sidestep the Act; or so the argument goes.

I think that an employer risks being held to have violated Sections 8(a)(3) and (1) if it increases its employees’ authority out of a desire to avoid a bargaining obligation. Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C. Cir. 1997) (“Both the Board and the courts have long held that an employer who promotes employees to supervisory positions to strip them of their right to self-organization because of a union campaign violates [Sections 8(a)(3) and (1)].”); Comcast Cablevision of Philadelphia, L.P., 313 NLRB 220, (1993) (holding that employer violated Section 8(a)(1) by promoting a union supporter to a position outside the unit to dilute the union’s support); American Tissue Corp., 336 NLRB 435, 445 (2001) (holding that employer violated Section 8(a) (3) and (1) by changing the job duties of an employee because of his union support); Regency Manor Nursing Home, 275 NLRB 261 (1985) (holding that employer violated Section 8(a)(1) by coercing employees into accepting supervisory positions in a scheme to undermine union support).

Of course, it may be difficult for the NLRB’s General Counsel to prove that an employer acted with an anti-union motive. But the proof problem is not insurmountable given the GC’s authority to subpoena documents and witnesses.

John Raudabaugh, a Former Member of the NLRB, Comments on Oakwood


Over at the HR Policy Association's NLRB Watch webpage, John N. Raudabaugh summarizes the Board's Oakwood decision and makes the following comment:

Despite organized labor’s extreme rhetoric calling the Oakwood Healthcare decision “shameless”, “cheap”, a “semantic trick”, and redefining NLRB to “National League of Republican Businessmen”, few individuals will be “deprived” of their rights. First, unlike healthcare, most industry sectors do not employ significant numbers of professionally trained, scientific, or advanced degreed individuals who, additionally, might also qualify for the “supervisory” exclusion. Second, unless unions actually engage in organizing, any mass “deprivation of rights” is theoretical. Targeting the NLRB when it was responding to two rebukes from the Supreme Court to “get it right” is wrong-headed. It is the 1947 amendments to the 1935 Act that is the basis for the NLRB’s ruling on who is or who is not a “supervisor.” Of course, therein lies organized labor’s objective – political rescue. This issue surely will be at the top of their legislative agenda in the new Congress.

Raudabaugh, a Republican, served as a Member of the NLRB from 1990 to 1993.

NLRB Issues Long-Awaited Decision Interpreting Section 2(11)


The Board issued a decision "refining" the analysis it employs to determine whether workers are "supervisors" excluded from the NLRA's protections. Based on a quick scan of the decision, it appears that the Board applied its refined standard to find that twelve permanent charge nurses were statutory supervisors but that other nurses, who served as charge nurses on a rotating basis, were not statutory supervisors. Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (Battista, Schaumber, and Kirsanow in majority; Liebman and Walsh dissenting in part).From the majority opinion:In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.From the dissenting opinion:If the National Labor Relations Act required [the majority's interpretation]—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts. The majority rejects what it calls a “results-oriented approach” in interpreting the Act. But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences. Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”The NLRB issued this press release describing the Oakwood decision. The AFL-CIO has issued this press release criticizing the Board's decision, and the U.S. Chamber of Commerce issued this press release supporting it. Here are some articles addressing the Board's decision:Steven Greenhouse, Board Redefines Rules for Union Exemption, N.Y. Times, Oct. 4, 2006Dale Russakoff, Some Workers Change Collars, Wash. Post, Oct. 4, 2006 at D01Barbara Rose, Board Decision Could Bar More From Unions, Chicago Trib., Oct. 4, 2006Lois M. Collins, Unions Criticize Ruling on Nurses, Deseret Morn. News, Oct. 4, 2006Diane Stafford, Labor Board Decision Goes Against Unions, Kan. City Star, Oct. 4, 2006Anya Sostek, , Pitt. Post-Gazette, Oct. 4, 2006NLRB: Nursing Supervisors Not Eligible for NLRBWill Lester, NLRB Redefines Union Eligibility, Lacrosse Trib., Oct. 4, 2006Alejandro Bodipo-Memba, Unions: Ruling Hurts Nurses, Det. Free Press, [...]

President Bush Nominates Wilma B. Liebman to Serve Another Term on the NLRB


Yesterday, President Bush nominated current Member Wilma B. Liebman to another five-year term on the NLRB. Liebman's current term expires August 27, 2006. The President previously nominated Dennis Walsh, Peter Kirsanow, and Peter Schaumber to the seats they currently occupy as recess appointees. Ronald Meisburg has also been nominated to fill the General Counsel's position.

I suspect that the Senate will confirm all of these nominees as a package before it recesses on Friday, August 4. If Liebman is confirmed and serves out her term, she will become the third-longest-serving Member in the Board's 71-year history behind John Fanning (served 25 years) and Howard Jenkins (served 20 years). Here is a post that summarizes some Board decisions in which Member Liebman disagreed with her fellow Democrat, Member Walsh.

UPDATE: This agenda for today's Executive Session of the Senate HELP Committee indicates that the Senate may act on the nominations of Liebman, Schaumber, and Meisburg only (not Kirsanow or Walsh). The recess appointments of Kirsanow and Walsh last until the Senate adjourns in late 2007. Thus, there is no pressing need to confirm those two nominees. Postponing consideration of these two nominees until that time would create the opportunity for a three-Member package, including Chairman Battista, whose term expires in December 2007.

UPDATE: The Senate HELP Committee unanimously approved the nominations of Liebman, Schaumber, and Meisburg. The full Senate will now consider the nominations.

UPDATE: The Senate has confirmed Liebman, Schaumber and Meisburg.

Stephen Colbert is a Labor Law Fanatic


Here is a clip, via American Rights at Work, from yesterday's Colbert Report in which Colbert proclaims that he "can't get enough of National Labor Relations Board Decisions; they are terrific!"

Colbert weighs in on a hot issue now before the Board: whether nurses are statutory supervisors and therefore not entitled to the Act's protection. Check it out.

Webcasts of Hiatt and Getman Lectures


Back in November, I mentioned in a post that Jonathan Hiatt (pictured left) and Julius Getman were giving separate lectures on labor law. Webcasts of both lectures are now available online.

Hiatt's speech is particularly interesting. He notes that we live in a culture that values individual rights (e.g., the rights protected by Title VII, ADEA, FLSA) and marginalizes collective rights (e.g., the rights protected by the NLRA). Hiatt argues that citizens who value individual rights should care about collective rights because employees who pool their resources and speak with one voice are better equipped to enforce statutorily protected individual rights. Hiatt is quick to point out that collective bargaining is not merely a good mechanism for enforcing individual rights. Through collective bargaining, employees can protect themselves against arbitrary employer action that no law prohibits. Hiatt argues that collective bargaining increases employees’ bargaining power, which can help them to improve their wages and benefits, and provides a voice for employees who wish to give input to their employers on matters of common interest.

The Decline of Labor Unions: Is Labor Law to Blame?

Collective Rights in the Workplace Within a Culture of Individual Rights (Hiatt really starts his lecture at about the 10:30 mark.)

Representative Christopher Shays Introduces a Bill to Amend the NLRA


On May 4, 2006, Representative Christopher Shays (R-CT) introduced a bill that would set statutory deadlines for the NLRB. The National Labor Relations Board Reform Act, H.R. 5310 IH, would require the Board to: (1) certify an election result not later than 12 months after the representation petition was filed; and (2) issue its order in a ULP case not later than 6 months after the General Counsel issued his complaint (not later than 12 months for “novel” issues). These statutory deadlines may be extended only with the agreement of the parties.

By providing that the Board shall act “not later” than these deadlines, the bill would seem to remove the Board’s statutory authority to act beyond the deadlines.

The bill would require the Board to act several times faster than it acts now. In FY 2005, the median for processing a ULP case from complaint to order was approximately 19 months. See Seventieth Annual Report of the NLRB at 171 (Table 23). In FY 2005, the median for processing a representation case from petition to Board decision was 9.5 months. Though this median is within the bill’s 12-month deadline, half of the cases took longer than the median, and many likely took far longer than 12 months. The median for representation cases awaiting Board decision as of September 30, 2005, was approximately 27 months from the date the petition was filed.

The Board would have great difficulty meeting the bill’s deadlines unless Congress significantly increases the Board’s resources. Absent improved funding, the bill likely would require the Board to give short shrift to many cases in order to avoid losing the power to act. Rushed decisions will likely be poorer decisions, and the Board may find it more difficult to obtain court enforcement.

Justice delayed is justice denied. Spurring the Board to enforce the Act faster is a laudable goal. However, setting short deadlines and removing the Board’s power to act beyond those deadlines may end up harming the Act’s intended beneficiaries.

Podcast with Board Member Peter Kirsanow


This business podcast from the Cleveland Plain Dealer contains audio clips of an interview with Board Member Peter Kirsanow. The podcast discusses Kirsanow's background, his view of the union movement in today's global economy, the role of politics at the NLRB, and organized labor's concern over Kirsanow's recess appointment. The relevant part of the podcast is 3:35 to 9:50. Reporter Alison Grant, who conducted the interview, authored this piece on Kirsanow. Allison Grant, Distinctive Politics Set Labor-Board Member Apart, The Seattle Times (April 2, 2006).

Dunder-Mifflin Violates Section 8(a)(1)


I cannot resist mentioning last night's episode of The Office. The warehouse employees tell Michael that they are interested in forming a union to improve their wages and benefits. Michael relays their interest to manager Jan, who gives the following speech to the warehouse employees.

"I am told that there has been some interest in forming a union and that Michael supported it. Obviously, he is not a friend of yours because he didn't tell you the facts; so let me. If there is even a whiff of unionizing in this branch, I can guarantee you that the branch will be shut down like that [snapping her fingers]. They unionized in Pittsfield, and we all know what happened in Pittsfield. It will cost each of you a fortune in legal fees and union dues and that will be nothing compared to the cost of losing your jobs, so I would think long and hard before sacrificing your savings and your future just to send a message."

Jan should have read NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), before delivering that speech. Her guarantee that that the branch would close upon any whiff of unionization does not look like a prediction carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond its control. I can't wait until next week's episode when a cease-and-desist order (with notice posting) puts Dunder-Mifflin back in its place.

Charles H. Goldstein Labor Law Symposium


On February 17, The George Washington University Law School will host the Charles H. Goldstein Labor Law Symposium. The Symposium will address the following topics:

Is the NLRA an Outmoded Statute in the 21st Century?

Chair, Professor Charles Craver, GW Law School
Professor Cynthia Estlund, Columbia Law School
Jonathan Hiatt, General Counsel of the AFL-CIO
Robert Battista, NLRB Chairman

What Must Labor Unions Do to Survive in the 21st Century Economy?

Chair, Professor Fred Freilicher, GW Law School
Wilma Liebman, NLRB Member
Marshall Babson, Hughes, Hubbard & Reed
Judy Scott, General Counsel of SEIU
Professor Keith Hylton, Boston University School of Law

Moving to a Post-Industrial, Global Economy and the Decline of Labor Unions
Chair, Professor Charles Craver, GW Law School
Professor Marion Crain, UNC Law School
Pat Szymanski, General Counsel of the Teamsters

As an aside, the NLRB recently held that The George Washington University violated Section 8(a)(5) and (1) by refusing to bargain with a newly certified union that represents a unit of part-time faculty members.
See The George Washington University
, 346 NLRB No. 13 (2005).

President Bush Recess Appoints Dennis P. Walsh to the NLRB


On Tuesday, January 17, President Bush recess appointed Dennis P. Walsh to be a Member of the NLRB. The White House's announcement is here.

This recess appointment brings the Board to full strength. Robert Battista (R), the chairman, sits in the Murdock seat. His term will expire on 12/16/07. Peter Schaumber (R) sits as a recess appointee in the Madden seat. His appointment will expire at the end of this session of Congress. Peter Kirsanow (R) sits as a recess appointee in the Carmody seat. His appointment will expire at the end of Congress' next session. Wilma Liebman (D) sits in the Smith seat. Her term will expire on 8/27/06. And Dennis Walsh (D) sits as a recess appointee in the Gray seat. His appointment will expire at the end of Congress' next session. Nominations for each of the recess appointees are pending in the Senate.

NLRB Declines to Rule on Legality of Inflatable Rat


The NLRB recently avoided resolving a hot issue when it declined to answer whether a union violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near a secondary employer’s entrance. Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB No. 22, slip op. at 2, n.3 (2006).

In that case, the General Counsel issued a complaint alleging that the respondent union violated the Act on two separate occasions. First, the GC argued that the union violated Section 8(b)(4)(ii)(B) by displaying the inflatable rat. Second, the GC argued that the union violated that same section by staging a mock funeral procession during which union members patrolled the public sidewalk in front of the secondary employer while carrying a faux casket. An ALJ found that each action separately violated Section 8(b)(4)(ii)(B). The Board unanimously adopted the judge’s finding that union violated the Act by engaging in the mock funeral procession. Reasoning that a finding of an additional violation would be cumulative and would not affect its Order, the Board declined to address the legality of the inflatable rat.

The press has given a good deal of attention to the inflatable-rat issue lately. See Joy Davia, Inflatable Rats Seek Cover After Labor Board’s Ruling, Dem. & Chron., Sept. 25, 2005; Alison Grant, Free Speech or Vermin?, Plain Dealer, Oct. 4, 2005; Jessica Marquez, Unions’ Inflatable Rat an Endangered Species, Workforce Management, Sept. 9, 2005; Alan Feuer, Labor’s Huge Rubber Rat, Caught in a Legal Maze, N.Y. Times, Dec. 28, 2005, at B1 (subscription required). To see streaming video of MSNBC coverage, click this link, insert “rat becomes union protest symbol” into the "MSN Video search" box, and click on the result. The issue has also received some academic commentary. See Timothy F. Ryan and Kathryn F. Davis, Banners, Rats, & Other Inflatable Toys, 20 Lab. Law. 137 (2004).

Displaying a large inflatable rat is similar in many respects to erecting a large banner. The Board has been unsuccessful in its attempts to persuade federal courts in Section 10(l) proceedings that reasonable cause exists to believe that unions have violated the Act by erecting large banners near secondary employers. Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005); Gold v. Mid-Atl. Reg’l Council of Carpenters, 2005 WL 3597692 (D. Md. Dec. 22, 2005). It remains to be seen how the newly constituted Board will handle these issues.

President Bush Makes Recess Appointments to the NLRB


On January 4, President Bush recess appointed Ronald E. Meisburg as the General Counsel and Peter N. Kirsanow as a Member of the NLRB. The President had nominated Meisburg and Kirsanow for these positions in July and November 2005, respectively. Both of those nominations have been referred to the Senate Committee on Health, Education, Labor, and Pensions, as was the President's April 2005 nomination of Dennis P. Walsh to serve as a Member of the Board. The President declined to recess appoint Walsh.

The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office.

The recess appointments follow quickly on the heels of an article in the Wall Street Journal authored by the president of the National Right to Work Legal Defense Foundation, Mark Mix. In the December 31 article, Mix urged the White House "to get off the dime and install an NLRB majority" to address the Dana/Metaldyne cases, among others, free from the constraint of institutional adherence to precedent.

Will the appointments satisfy Ross Runkel ?