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Latest News - November 2010

November 11, 2010
Labor Board's Recent Decisions Tilt in Favor of Unions
Source: Wall Street Journal
By: By Melanie Trottman and Kris Maher

Unions are increasingly looking to the National Labor Relations Board to seek favorable workplace rulings, and the agency is showing a willingness to reopen matters previously decided in favor of employers.

Union leaders pushed earlier this year to get two new Democratic members on the labor-relations board, saying they needed to level the playing field with employers after years of decisions by the Republican-controlled board that unions said hampered their efforts to organize workers.

Union hopes of getting major new legislation to boost their organizing all but died with Republican gains in the mid-term congressional elections. The Employee Free Choice Act, which would make organizing easier by enabling unions to bypass secret-ballot elections, was already stalled in a Congress fully controlled by Democrats.

Organizing is a critical issue for unions. In 2009, the national rate of union membership had fallen to 12.3% from 20.1% in 1983.

The NLRB can't overhaul labor law, but it can make rulings on a case-by-case basis and set broader policies through administrative rules that could give unions more leverage with employers.

In one recent decision, the board's three Democrats backed a union practice of holding large stationary banners at a secondary employer's business to protest contractor work being done. The board ruled that because the banners weren't part of a marching picket line, they weren't "coercive," and therefore didn't violate labor laws.

Employer groups and management-side lawyers have expressed concerns over the board's recent actions, saying they show a tilt toward giving unions an upper hand in organizing drives that could drive up labor costs.

"There is a belief that organizing activity will increase in 2011, both because of the changes at the board and the economy picking up," said Ken Yerkes, a partner with law firm Barnes & Thornburg in Indianapolis who's been advising his corporate clients "not to be lulled into a sense of complacency."

Board member Mark Pearce, a Democrat, said the board was simply carrying out the law, in part by trying to ensure that workers have an "unencumbered choice" to unionize.

The board's three Democrats have also outvoted Republicans to take on several cases that revisit disputes over when a union's representation of workers can be challenged.

One case questions whether after the sale of a unionized company, the new owner, a rival union or the employees may challenge the incumbent union's right to represent the workers.

The board also split in late October along partisan lines to begin reconsidering whether the United Auto Workers' should be able to organize graduate student teachers at New York University in New York. A ruling by the Bush-era labor board found that graduate students weren't considered employees as defined by labor law, and so weren't eligible to join a union.

The NLRB's current sole Republican member, Brian Hayes, opposed the NYU decision, saying it would mean Democratic members would review the same evidence but this time rule in the union's favor.

Mr. Pearce said the board has been interpreting existing labor law to make its recent decisions.

"The outcomes [of recent votes], I feel, reflect on the original intent of the National Labor Relations Act," said Mr. Pearce, a former labor-side lawyer and one of two Democrats appointed by President Barack Obama. Mr. Obama also appointed Mr. Hayes, who had represented management clients.

The NLRB currently has three Democrats and one Republican, with one seat vacant that until late August had been filled by a Republican.

Another contentious issue that the NLRB could address is whether to reduce the amount of time that a union must wait between filing for an organizing election and actually holding the vote. The average lag time is currently about 38 days. Unions say they want to shrink that time substantially, arguing that delay gives employers more time to pressure workers to vote against organizing.

Employers counter that limiting the waiting period would rob them of the chance to fairly convey the advantages of remaining non-union.

"The overall approach to the regulatory sphere is to chip away at employers' speech rights and ability to communicate with workers," said Glenn Spencer, an executive director at the U.S. Chamber of Commerce.

Mr. Pearce said that he was receptive to shortening the wait time for organizing elections.

"It's certainly something we are open to looking at," he said. "A significant number of coercion cases occur during that time. Workers should have the ability to choose absent coercion."



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