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Latest News - October 2010

October 20, 2010
Changes in Federal Labor Law Coming
By: Keith Eastland

By now every business professional has heard about the Employee Free Choice Act.

If passed, EFCA would radically alter rules on organizing and collective bargaining, giving unions a significant advantage. Fortunately, that legislation has stalled for now.

Last month, in a speech to members of the AFL-CIO’s executive council, President Obama acknowledged as much: “Frankly, we don’t have 60 votes in the Senate … (and) the opportunity to actually get this passed right now is not real high.”

But while Congress has been debating the merits of EFCA, organized labor and the Obama administration have not been standing still. They have targeted the National Labor Relations Board for relief. Notably, Obama recently appointed two controversial members to the board, Craig Becker and Mark Pearce.

The addition of these members marks a seismic shift in the philosophy of the board. The new board views the world of labor relations through a very different lens than the George W. Bush board, and you can bet that new rules favoring organized labor at the expense of employers and individual employee rights are on their way.

Some are already here; others are coming soon. The following examples are only the beginning.

Employers can expect the new board to grant much broader protections to union-related activity. An Aug. 27 board decision on “bannering” highlights this point. Bannering refers to the display of large signs, often containing misleading claims, at job sites belonging to neutral parties. It is a union tactic often designed to threaten and coerce neutral businesses to avoid dealing with non-union contractors or suppliers.

Although the law expressly prohibits unions from engaging in coercive or threatening actions toward neutral businesses, the new board has ruled that bannering is protected. Under this new rule, unions can now target your business or job sites with large banners — or use giant inflatable rats signifying the presence of “scabs” — even when you have no labor dispute with that union.

We have already observed this type of questionable conduct in our community. On Oct. 6, 2010, during the widely successful ArtPrize competition in Grand Rapids, a handful of individuals decided to picket outside the Van Andel Arena. These individuals carried signs in a circle near the arena’s main box office, blew whistles and plastic horns, and alleged that substandard wages were being paid by a contractor working on the arena.

These picketers claimed that they represented the Carpenters’ Union, the union involved in the NLRB’s bannering case. Remarkably, the leaders of this short-lived protest refused to tell reporters whether they were from West Michigan or if they were even union members.

Unfortunately, under the board’s new rules, this type of disruptive and distasteful tactic could become common, and all businesses need to brush up on their rights in case they are targeted.

Employers can also expect a healthy dose of restrictions on their property, speech and management rights. For example, the new board is expected to overrule a 2007 decision that permits employers to control their own IT systems. Current law allows employers to restrict employees from using company-owned IT, e-mail or other communication systems for union solicitation, provided that the company does not unlawfully discriminate.

But under the Obama board, employees likely will be granted a right to use their employer’s e-mail system for union activities. This would make virtually every employer-owned e-mail system an organizing tool for unions.



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