Labor Relations Counsel - Legal Insight into Labor Relations Developments

In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.

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By John Cerilli

Controversial National Labor Relations Board regulations that will dramatically change union representation election procedures are slated to take effect on April 30, 2012. In anticipation of this event, Board regional offices have been stepping up their internal training efforts and preparing outreach programs to explain the new regulations to the public.

About two weeks prior to the rule’s effective date, the Board’s General Counsel (GC) is expected to post on the NLRB’s website a GC Memorandum, PowerPoint presentation, and video explaining the new regulations. The GC memorandum is expected to explain in more detail which contested issues will result in an evidentiary hearing on the record and which issues will be deferred until after an election. Generally, it is anticipated that issues pertaining to the scope and composition of the proposed bargaining unit generally will result in a hearing, while those pertaining to eligibility that do not affect a significant percentage of the bargaining unit will not. In the latter instances, the hearing officers will defer these issues until after the election. As it stands, which issues will warrant an evidentiary hearing and which will not remain somewhat unclear.

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In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures. Among other changes, the rule will:

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By David Kadela

In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.

What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority.  Continue reading about this development here.

The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires at the end of the year, the Board will be left with Chairman Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time. There also has been speculation that Member Hayes might resign to prevent the remaining members from finalizing contentious Board rules.

In the event the Board is left operating with less than a three-member quorum, the Order grants the GC authority over appointments and other personnel decisions with respect to Regional and Subregional Directors and officers and over the establishment of Regional and Subregional offices. In addition, the Order grants the Chairman and the GC the joint authority to make decisions concerning the apportionment and allocation of funds and the establishment of personnel ceilings within the Agency and delegates to the Chief Administrative Law Judge authority over appointments and other personnel decisions concerning any Administrative Law Judge. The Order makes each delegation of authority subject to the right of any sitting Board Member to request full-Board consideration of any particular decision.

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The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.

According to the Board, it has received more than 65,000 written comments on the proposed rule. The agency also conducted a 2-day hearing in July to gather public input. Taking these comments into consideration, and “in light of the possibility that the Board will lose a quorum at the end of the current congressional session,” Board Chairman Mark Pearce “will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.” Given the current makeup of the Board, approval of the Chairman’s proposal is a foregone conclusion, with member Brian Hayes (R) sure to object. Following the vote, the Board will “proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.”

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On Wednesday, the House Committee on Education and the Workforce voted 23-16 along party lines to send the Workforce Democracy and Fairness Act (H.R. 3094) (pdf) to the House floor. The vote followed a lengthy markup session of the legislation that would, among other changes, effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the National Labor Relations Board from pursuing its proposed changes to representation election procedures. According to the Committee’s media advisory, this bill “restores successful labor practices and reaffirms protections workers and employers have received for decades” and “ensures employers have access to a fair election hearing and employees are able to make a fully informed decision about union representation.” Earlier this month, the Committee held a more formal hearing with invited panelists to debate the bill’s merits. Continue reading this entry at Littler’s Washington DC Employment Law Update.

Legislation introduced by House Committee on Education and the Workforce Chairman John Kline (R-MN) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the Board from pursuing its proposed changes to representation election procedures. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) seeks to return to the long-standing approach in assessing which employees belong in a proposed bargaining unit, and would establish a timeline and process for holding a hearing regarding any pre-election disputes and deciding the appropriate bargaining unit. Continue reading this entry at Littler's Washington DC Employment Law Update.

By Nathan J. Allen

The Board has announced a new approach to the question of whether the filing of a lawsuit to redress unlawful employment practices, when financed by a union prior to a representation election, interferes with a fair election.  Specifically, in Stericycle, Inc., 357 NLRB No. 53, the Board held that a union engages in objectionable conduct warranting a second election when it finances a lawsuit filed during the narrow time period – known as the “critical period” – between the date of the filing of the representation petition and the date of the election, if the lawsuit asserts claims under federal or state wage and hour laws, or other similar employment laws on behalf of employees in the unit.  The Stericycle decision overrules prior Board standards for determining whether union-sponsored lawsuits filed during the critical period will taint election results. 

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Marking the end of Chairman Wilma Liebman's term, the National Labor Relations Board issued three significant decisions at the end of August that overturn long-standing Board precedent. In what may be the most significant of the three, a decision involving the healthcare industry, the Board paved the way for the proliferation of bargaining units by overruling its 1991 decision in Park Manor Care Center, 305 NLRB 872 (1991), and determining that certified nursing assistants ("CNAs") comprise an appropriate stand-alone bargaining unit. Although it involved a nursing home, the Board's decision is not limited to the healthcare industry and fundamentally changes the standard for determining appropriate bargaining units applicable to all employers.  Continue reading this article here.

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In Go Ahead North America, LLC, 357 NLRB No. 18 (July 18, 2011), a Board panel consisting of Chairman Liebman and Members Becker and Hayes held that an employer’s objection to union’s promise of the dues waiver was meritorious and ordered that the union’s election victory be set aside and directed a second election.

The case arose out of a union’s effort to stave off defeat in a decertification election by distributing a flyer that stated in part that the union would not seek to collect any unpaid dues owed by the employees.  The decertification petition was filed while the employer, which was a successor to a prior transportation contractor, was bargaining with the union for an initial contract.  The prior transportation contractor had failed in its responsibility to withhold dues in accord with its checkoff agreement with the union.  Consequently, all employees who had signed checkoff authorizations were at least one month, and perhaps two months, in arrears.

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Likely in response to the National Labor Relations Board’s controversial proposed rule that would provide for expedited representation election procedures, Sen. Jim DeMint (R-SC) introduced legislation this week that would establish longer timeframes and due process requirements for the election process. Specifically, the Fair Representation in Elections Act of 2011 (S. 1425) would add the following provision to Section 9(b) of the National Labor Relations Act:

No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.

In addition, the measure would:

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As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. The most vehement criticisms of the proposal are discussed below.

A Solution in Search of a Problem

Many testified that the vast majority of elections are held pursuant to a stipulated agreement, and that current procedures do not promote excessive and unnecessary delays. Several speakers claimed that any deviations from this rule should not result in a wholesale change to the entire election process. As Kadela noted during his testimony, the proposed changes would reportedly shorten the time from the filing of a petition to an election from a median of 38 days to between 10 and 21 days. Doing so dramatically diminishes the time and opportunity for an employer to educate employees on its position before an election.

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During a web chat run by the Office of Labor Management Standards (OLMS) to discuss the agency’s regulatory agenda, OLMS Director John Lund fielded several questions – but provided few concrete answers – regarding the OLMS’s proposal to narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). This proposal would also expand what constitutes reportable “persuader activities” under the LMRDA, and subject employers and their advisors – including their attorneys – to new reporting requirements. Currently, employers are required to report information regarding persuader agreements with consultants on the Form LM-10, while consultants are required to report related information on the Form LM-20. Narrowing the “advice” exemption and expanding the definition of “persuader activities” would necessarily expand the reporting required on these forms.

Many of the participants expressed concern that determinations regarding whether attorney conduct constitutes “advice” or “persuader activity” necessarily involve an inquiry that infringes on the attorney-client privilege. In response, Lund clarified that “employers and consultants would not have to file reports concerning agreements whereby the consultants are engaged exclusively in providing advice or legal representation,” nor would they be required to disclose privileged information. Not satisfied with this answer, another questioner asked whether the OLMS has considered how it would be able to conduct an investigation into a union’s allegation that a company’s attorney has engaged in persuader activity and that the advice exemption does not apply while making sure not to overstep the bounds of attorney-client privilege. Lund did not explicitly answer this question, but instead made the broad claim that “investigators work closely with the Department’s lawyers to ensure that the privileges are protected.”

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The National Labor Relations Board has announced (pdf) that it will hold one or more public meetings to discuss the controversial proposed changes to the Board’s representation election process. According to the notice to be published in the June 27 edition of the Federal Register, the topics of discussion are limited to issues raised by the proposed rule and suggestions for improving the election process. These meetings are in addition to the solicitation of formal written comments as outlined in the Federal Register.

The first meeting is scheduled to take place from 9 a.m. to 4 p.m. on Monday, July 18, 2011 in the Margaret A. Browning Hearing Room (Room 11000), National Labor Relations Board, 1099 14th Street, NW, Washington, DC 20570. A second meeting might be scheduled the following day if necessary. Those interested in attending or speaking at the meeting must submit a written request by 4 p.m. on Friday, July 1, 2011. Requests may be sent to Mary Meyers, Administrative Assistant to the Chairman, National Labor Relations Board, 1099 14th Street, NW, Suite 11100, Washington, DC 20570, or submitted electronically to: publicmeeting@nlrb.gov. All emails should contain the following in the subject line: “REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08.” All requests must include the following information: (1) attendee’s full name, (2) organizational affiliation (if any), and (3), if they are appearing in a representative capacity, the names of any individuals or organizations on whose behalf they are appearing. Attendees are reminded to bring a photo ID. Individuals interested in speaking at the meeting must also submit a brief outline of their presentation.

Littler Mendelson attorneys plan to be in attendance and will provide an update on the issues discussed.

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In Mental Health Association, Inc., 356 NLRB No. 151 (Apr. 29, 2011), the NLRB overturned an employer’s election victory primarily because of election-day actions by the employer.  Among other things, on election day, the employer limited employee access to the facility to one employee entrance.  The employer also stationed openly anti-union employees at that entrance and gave them control over it for a substantial portion of the voting period.  In addition, the employer hired security personnel, erected a fence around part of its parking lot, and posted “private property” signs, allegedly without evidence of a security threat.  The NLRB concluded that the totality of this conduct “tended to interfere with employees’ free and uncoerced choice in the election,” setting aside the election results and ordering a new election.

The union asked the NLRB to rescind the long-standing presumption that elections will be held on employer premises and to replace it with a presumption that an election will be held at a neutral site unless the parties agree otherwise.  The union asked alternatively that the NLRB adopt a rule that a re-run election be conducted at a neutral site in any case in which an election is set aside because of election day misconduct.  The NLRB declined to do so:

Chairman Liebman and Member Pearce observe that this case illustrates some of the shortcomings of the [NLRB’s] current practices regarding the siting of elections. They are not prepared at this time, however, to deviate from the [NLRB’s] current practice of leaving the determination of the appropriate method and location for initial and rerun elections to the discretion of the Regional Director.  

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The National Labor Relations Board created a stir in late 2010 by filing an unfair labor practice charge against ambulance company, AMR, for firing an employee who, among other things, called her supervisor a “mental patient” in a Facebook post read by many co-workers. As it turns out, the “Facebook case” was just the beginning of what appears to be a trend by the Board, subsequently joined by unions, to restrict employers’ ability to promulgate and enforce social media policies that, in the Board’s view, impinge on employees’ rights under the National Labor Relations Act. Several recent developments provide a window into the Board’s intentions.

Last week, the NLRB’s Hartford Regional Director, who was responsible for filing the Facebook case, provided useful information about the Board’s intentions, both in comments and in handout materials, while speaking on a panel for the Connecticut Bar Association. To learn more, please continue reading at Littler's Workplace Privacy Counsel blog.

NLRB Acting General Counsel Lafe Solomon has announced his intent to file lawsuits in Arizona and South Dakota to nullify those states’ constitutional amendments that preserve secret ballot elections. According to Solomon, the state measures are preempted by the National Labor Relations Act (NLRA) and the U.S. Constitution’s Supremacy Clause, and are therefore invalid.

The NLRB’s dispute over the constitutional measures began in November of 2010, when four states – Arizona, South Dakota, Utah and South Carolina – approved constitutional amendments containing language upholding the “fundamental” right to the secret ballot. These efforts were widely viewed as preemptive strikes against the possible reintroduction of the beleaguered Employee Free Choice Act (EFCA) and other efforts to bypass secret ballot elections. In response to these constitutional amendments, Acting General Counsel Solomon informed the attorneys general of those states that it was the Board’s position that the amendments were unconstitutional and that any attempt to enforce or enact those provisions would result in litigation.

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In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the National Labor Relations Board held that the existence of three unenforced but overbroad rules in the employer’s handbook required the setting aside of election results in which employees had voted to decertify their union.  This decision makes it easier for unions to argue that overbroad handbook policies affected election results.  Of equal importance, the decision casts doubt on the effectiveness of disclaimer language in which an employer advises employees that “they have rights under the National Labor Relations Act which supersede any possible interpretation of the rules in the handbook.”

The Board found that the employer maintained three overly broad policies in its employee handbook — a “no solicitation or distribution” policy, a “loitering” prohibition, and a “grooming” policy banning the wearing of buttons — and that each policy constituted objectionable conduct that reasonably tended to interfere with employees’ Section 7 rights.  This decision is particularly troublesome for employers given the extent of the employer’s efforts in this case to avoid an inference that its handbook rules interfered with the free exercise of employees’ Section 7 rights.   The record shows that the handbook rules had been in place for two years without prior objections from the union; the handbook was not distributed or emphasized during the critical election period; the rules were not enforced against any protected activity; and when issues of potential ambiguity arose, the employer even issued a memorandum clarifying its intent, amending two of its policies and eliminating the third policy entirely.

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On January 31, 2011, the National Labor Relations Board adopted a finding that Fresh & Easy Neighborhood Market violated the NLRA by maintaining an overbroad no-solicitation rule, interrogating employees, and creating an impression of surveillance. The Board also dismissed two claims that employees were unlawfully discharged for engaging in protected activity. Fresh & Easy Market operates convenience stores in Nevada, Arizona and California. The case involved one of the company’s convenience stores in Las Vegas, Nevada, which had been targeted for organizing by the United Food and Commercial Workers (UFCW) during 2009.

As part of the UFCW’s campaign, union organizers made unannounced visits to the homes of Fresh & Easy Market’s Las Vegas employees, which prompted several employee complaints. Managers informed the employees that they could send written complaints to the local UFCW office and to the company’s legal department, and several employees chose to do so. In following up on reports of unwelcome and confrontational home visits by the UFCW’s organizers, the Las Vegas store manager asked two employees whether they had sent complaint letters or had “spoken to the Union.” The NLRB General Counsel challenged this single conversation as unlawful interrogation that gave the employees the impression that their actions were under surveillance.

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Less than a month after NLRB acting General Counsel Lafe Solomon threatened to sue four states that recently adopted constitutional amendments protecting secret ballot elections, the agency appears to have softened its stance. In a letter (pdf) sent to the attorney generals of South Carolina, Arizona, South Dakota and Utah, Solomon praises them for their “prompt reply” and “commendable desire to resolve this matter without unnecessary expenditure of taxpayer money.” Solomon had claimed that the state amendments were in violation of the National Labor Relations Act and were thus preempted. Solomon had warned that if the states did not revoke or refuse to implement the amendments within two weeks, the agency would bring lawsuits to achieve that end.

In their defense, the state attorney generals informed Solomon that they disagreed with his argument that the amendments were unconstitutional, and were therefore willing to “vigorously defend any legal attack upon them.” The attorney generals claimed that the amendments at issue “support the current federal law that guarantees an election with secret ballots if the voluntary recognition option is not chosen.”

Taking this argument into consideration, Solomon responded:

As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation. My staff will shortly be in contact with the staff members you have designated to explore this issue further.

While this back-and-forth was occurring, the Senate reintroduced a bill last week that would similarly preserve secret ballot union elections. That measure – the Secret Ballot Protection Act (SBPA) (S. 217)) – has been referred to committee.

On January 27, Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (SBPA) (S. 217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Essentially, this measure would make it an unfair labor practice under the NLRA for an employer to recognize a union that has not been selected via secret ballot. In addition, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it. DeMint had introduced this bill in February 2009 as a pre-emptive move against the anticipated introduction of the Employee Free Choice Act (EFCA). In a statement, DeMint said: “Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election,” adding, “Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder.”

The introduction of the SBPA coincides with a letter four state attorney generals sent to the NLRB in defense of their state constitutional amendments that similarly seek to preserve the right to secret ballot elections. Last month, the NLRB’s Acting General Counsel put the Arizona, South Carolina, South Dakota, and Utah attorney generals on notice that it was the agency’s position that the amendments were in violation of the NLRA, and that the Board would file lawsuits against each state if the amendments were not rescinded. In their joint January 27, 2011 letter, the attorney generals reject the NLRB’s demand to “stipulate to the unconstitutionality” of the amendments, and affirm that they “will vigorously defend any legal attack upon them.” The attorney generals explain that the NLRB premises its proposed lawsuit:

on the erroneous conclusion that our constitutional provisions require elections when federal law does not. We do not believe that is true. Our amendments support the current federal law that guarantees an election with secret ballots if the voluntary recognition option is not chosen. . . . Accordingly, your letter fails to establish that our State constitutional protections have disrupted the federal regulatory scheme in any way. Both the State amendments and the NLRA support secret ballot elections in selecting union representatives.

The letter concludes by urging the NLRB to reconsider its decision.

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Union membership in the United States continued to decline in 2010, according to a recently-released report issued by the Bureau of Labor Statistics (BLS). The data contained in the report was obtained from the Current Population Survey (CPS), which conducts monthly assessments of basic information on the labor force, employment, and unemployment. The annual report on union membership finds that the number of wage and salary workers who belong to a union declined by 612,000 to 14.7 million in 2010 (7.1 million workers in the private sector; 7.6 million in the public sector). An additional 1.6 million workers (783,000 of whom are government employees) held jobs that were covered by a union contract, but reported no union affiliation. Overall, the union membership rate fell to 11.9 percent, down from 12.3 percent the prior year. In contrast, the union membership rate in 1983 – the first year comparable data was available – was 20.1 percent, representing 17.7 million workers. Other notable findings include the following:

• A substantially higher percentage of public sector workers, 36.2 percent, were unionized, compared to 6.9 percent for the private sector.
• Private sector industries with the highest union participation rates include transportation and utilities (21.8 percent), telecommunications (15.8 percent), and construction (13.1 percent).
• Private sector industries with the lowest union participation rates include agriculture and related industries (1.6 percent) and financial activities (2.0 percent).
• Broken down by occupational groups, education, training, and library occupations (37.1 percent) and protective service occupations (34.1 percent) had the highest unionization rates; sales and related occupations (3.2 percent) and farming, fishing, and forestry occupations (3.4 percent) had the lowest unionization rates.
• New York had the highest union membership rate (24.2 percent), while North Carolina had the lowest rate (3.2 percent). About half of the 14.7 million union members in the U.S. lived in just six states (California, 2.4 million; New York, 2.0 million; Illinois, 0.8 million; Pennsylvania, 0.8 million; Ohio, 0.7 million; and New Jersey, 0.6 million). Overall, union membership rates declined in 2010 in 33 states and the District of Columbia, and rose in 17 states.
• With respect to union member demographics, membership rates tended to be greater among men (12.6 percent) than women (11.1 percent). African American workers had the highest participation rate (13.4 percent), with Asian men having the lowest rate (9.4 percent). Union membership was also highest among workers ages 55-64 (15.7 percent).

A pdf copy of the BLS report can be found here.

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The National Labor Relations Board has issued a notice and invitation to file briefs (pdf) on the issue of whether a charter school is a political subdivision within the meaning of Section 2(2) of the National Labor Relations Act, and therefore exempt from the Board’s jurisdiction. Section 2(2) of the NLRA exempts from coverage government entities or wholly owned government operations. As discussed in the Board’s announcement, (pdf) the Supreme Court case NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971) established a test to determine when entities that are political subdivisions fall under the Section 2(2) exemption. Such entities must either be “(1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.” According to the NLRB, because state charter school laws vary, decisions regarding whether such schools are subject to the NLRA have similarly varied.

In the case at issue, Chicago Mathematics & Science Academy Charter School, Inc. (13-RM-1768), the union sought to represent a charter school’s teachers, social workers and counselors through the Illinois Educational Labor Relations Board instead of the NLRB, arguing that the school constituted a political subdivision of the state. The school, on the other hand, claimed that the NLRB retained jurisdiction. The purpose of the invitation for briefs, therefore, is to solicit public input as to when charter schools should fall under the NLRB’s jurisdiction.

Briefs must be filed electronically on or before March 11, 2011.

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign. This new Board initiative is consistent with the Board’s efforts to administratively implement substantive portions of EFCA previously discussed in this blog.

Specifically, in such “nip-in-the-bud” cases, local Board regions are directed to seek a notice-reading remedy when an employee discharge is involved, and are encouraged to do so when an employer is believed to have committed any serious Section 8(a)(1) violation. If the ULP is believed to have interfered with communications between employees, or between employees and a union, regions are also directed to seek union access to an employer’s bulletin boards as well as employee names and addresses. This initiative builds upon a program introduced in September designed to streamline and expedite the process of seeking section 10(j) preliminary injunctions from federal courts in cases involving employee discharges during organizing drives.

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With its December 6 decision in Dana Corp., 356 NLRB No 49, (pdf) the Obama Board has given its approval to broader use of agreements between employers and unions designed to encourage the organization of an employer’s non-represented workforce. The decision represents a step forward in the Obama Board’s agenda for changing existing interpretations and applications of U.S. labor law in ways that labor organizations hope will ensure its continuing relevance and vitality in the twenty-first century. For some, the decision suggests that the Board may be privileging the institutional interests of labor unions over the individual or even collective interests of the employees whom federal labor law was designed to protect.

The UAW represents Dana Corporation’s employees in nine bargaining units covering some, but not all of the company’s facilities. In 2003, Dana and the UAW entered into an agreement wherein Dana committed that it would remain neutral if the union launched an organizing drive at any of the unorganized plants, provide the union with a list of the names and addresses of employees working at the plant upon request, provide union organizers with access to the non-working areas of the plant for the purpose of organizing employees, and recognize the union without an election if the union presented authorization cards signed by a majority of the employees at the plant, as verified by a neutral fact-finder. This type of sweeping neutrality and card-check agreement, though uncommon, has generally survived legal challenges.

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As further repudiation of the proposed Employee Free Choice Act’s (H.R. 1409, S. 560) “card check” provision, voters in four states on Tuesday approved constitutional amendments to preserve secret ballot union representation elections. The state constitutions in Arizona, South Carolina, South Dakota and Utah will now contain similar language upholding the “fundamental” right to the secret ballot. Considered a preemptive strike against EFCA and other administrative efforts to bypass secret ballot elections, such ballot initiatives likely will become more prevalent.

In Arizona, the majority of voters approved Proposition 113, which amends the state constitution by adding the following section:

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Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.

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In a continuing example of the labor movement’s penchant for self-immolation, the SEIU prevailed in a hard fought campaign against the NUHW, the National Union of Healthcare Workers, at Kaiser Healthcare in California. As previously reported in this blog, the NUHW was created by the former leaders of an SEIU local based in Oakland known as United Healthcare Workers-West. It was a bitter divorce marred by taunts, accusations and lawsuits that made an episode of the Jersey Shore look like family entertainment. In the end, the SEIU won a $1.5 million dollar verdict against NUHW and 15 of its leaders for improperly devoting their efforts to SEIU-represented employees while simultaneously creating the rival union.

Continue reading this entry on Littler's Healthcare Employment Counsel blog.