IRI Intelligence Briefing

News and Developments Affecting the Workplace

Volume Number & Date: 
Vol. 3 No. 1 - February 2011

NLRB Decisions Already Affecting Workplaces

As Congress finally took EFCA off life-support in December after four years of failed attempts at passage, labor’s attention already had shifted to the National Labor Relations Board (NLRB).

Arguably the most pro-labor NLRB ever (two of its members, including its chair, are former union staff attorneys), it’s not letting go of EFCA. As Stewart Acuff of the Utility Workers Union of America explained last year, “If we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees on the NLRB to change the rules governing forming a union through administrative action.”

2010 Rulings

Because it spent several months getting organized with its three new members, the NLRB’s most important rulings came later in the year. It began by overturning representation elections for a variety of reasons, including:

  • Election observer was too closely aligned to management
  • Company supervisors were standing too close to the voting area
  • Security guards watched employees engaged in organizing activity
  • Employer illegally restricted the wearing of union T-shirts

December saw the Board pick up the pace, issuing a number of decisions as a prelude to what it will do this year. Some of its more notable December decisions include:

  • Compound Daily Interest on Back-pay Penalties

    In a unanimous decision, the NLRB adopted a policy requiring that interest compounded on a daily basis be added to back-pay awards given to employees who were discriminated against due to their union-related activities. The action reverses a nearly 50-year policy of tacking simple-interest penalties onto back-pay awards.

    In its 4-0 decision against Jackson Hospital Corp. of Tennessee, the NLRB said it believes that “daily compounding...will lead to more fully compensatory awards of interest and thus come closer to achieving the make-whole purpose of that remedy.” The Board added it would apply the new daily compounding policy retroactively to the Jackson Hospital case and to all other pending cases.

  • NLRB Legal Head Pushes “Employee Free Choice”

    NLRB Acting General Counsel Lafe Solomon intensified his push for faster injunctions against employers accused of unfair labor practices during organizing campaigns, including employee terminations. Late in the year, he issued a memorandum explaining why. Here’s a portion of the memo:

    “The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful. Accordingly, as Acting General Counsel I have placed a priority on ensuring that the Agency protects employee freedom of choice with regard to unionization by obtaining effective remedies for employers’ unlawful conduct during union organizing campaigns.”

NLRB in 2011

  • Facebook Complaint Leads to Settlement

    The NLRB in October 2010 issued a complaint against American Medical Response of Connecticut for firing an employee who criticized her supervisor on her personal Facebook page. The Board’s complaint alleged that the employer’s rules were overbroad and could restrict employees from exercising their legal rights. The day before the scheduled hearing before the NLRB, the employer settled and agreed to revise its social media rules.

  • Protected Concerted Activity

    In a 2-1 decision, the NLRB ruled that the discharge of an employee who had not yet engaged in protected concerted activity to complain about wages was illegal. The employee reportedly asked about a peer’s wages and was subsequently fired. The majority of the Board said that discharging an employee who might complain in the future restrained and coerced the employee in the exercise of her statutory rights.

  • NLRB Annual Report

    The NLRB in January issued preliminary operating results for fiscal year 2010. Highlights of the report include:

    • 10 percent increase in representation case filings
    • 6 percent increase in representation elections
    • 3.8 percent increase in unfair labor practice filings
    • Unions won 69.2 percent of the elections held in the first half of the fiscal year
  • Becker Renominated, Again Draws Fire

    President Obama January 26 renominated Craig Becker to fill the remainder of a five-year term that expires in 2014. Six days later, 47 Republican Senators voiced their objections to the move. Their letter to the President said:

    “[Becker] has led the Board to reopen and reverse settled decisions, made discrete cases a launching point for broad changes to current labor law, and used an 18-year-old petition to initiate a rulemaking proposal that likely exceeds the Board’s statutory authority.

    “Of equal concern, Mr. Becker assured Senators at his confirmation hearing that he would recuse himself from any Board matter in which his previous union employers were a party. Yet, when asked to recuse himself in 13 pending cases involving former employers, he refused in 12 of them.”

    Becker was first nominated in 2009, but drew such heavy criticism from Republicans and businesses that President Obama was forced to bypass confirmation and instead appoint him in 2010 while the Senate was in recess. His appointment is due to lapse this year unless he’s confirmed by the Senate or is reappointed by the President during another Senate recess.

  • President Nominates Terence F. Flynn to NLRB

    The White House also has nominated Terence F. Flynn to the NLRB. Currently chief counsel to NLRB Republican Board member Brian Hayes, Flynn would fill the seat previously held by Republican Peter Schaumber, whose term expired in 2010. Before serving under Hayes, Flynn was chief counsel to Schaumber. From 1990 to 2003, Flynn was a management-side attorney in private practice. He is a graduate of the University of Maryland and Washington & Lee University School of Law.

  • Employee Rights Notification Inquiry Continues

    The NLRB is moving ahead on its proposal to require employers to post notices in their workplaces informing employees of their rights to join unions.

    The Board said it believes that many employees are unaware of their rights under the NLRA, including the right toThe NLRB proposal is similar to one enacted in 2010 covering federal contractors.

    • Organize a union to negotiate with employers concerning their wages, hours, and other terms and conditions of employment
    • Form, join or assist a union.
    • Bargain collectively with the employer setting wages, benefits, hours, and other working conditions
    • Strike and picket

What’s Ahead for 2011?

Still on tap at the NLRB is the fate of labor’s brass ring – several EFCA provisions, especially mandatory card check. Unions are hopeful that through board decision making, new regulations and rule making, the NLRB will give it what Congress didn’t. Labor also is counting on the Board reversing many of the pro-employer rulings of the Bush administration and make it easier for unions to organize workers.

The current NLRB has a quorum that strongly believes the Board has tilted too far in business’s favor, and that big changes must be made in order to help unions. Board chair Wilma Liebman, Craig Becker and Mark Pearce all have strong pro-labor leanings, and they seem prepared to act on labor’s behalf.

Pearce has promoted slashing the time for holding union representation elections, from 42 days after filing a union petition to as little as five days after the petition is filed with the NLRB.

While not as threatening as card check, expedited elections nonetheless would be very difficult for many employers to manage; unions could spend as much time as they needed quietly collecting petition signatures, then file the petition and have an election only days later.

Unions have long said the current five- or six-week lag is unjust because it gives employers too much time to convince employees to not unionize. The longer the period before the vote, the greater the likelihood of unfair labor practices from both sides, Pearce said.

The Board also may reverse a number of important pro-business rulings issued between 2001 and 2008, including:

  • Who is a “supervisor?”

    In its 2006 Oakwood Healthcare, Inc., decision, the Bush Board clarified and expanded the definition to the great chagrin of unions. Not only is the new Board likely to reverse this ruling, Congress may revive consideration of the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, which also would overturn it.

  • Can an employer lawfully maintain a policy barring non-business use of its e-mail system?

    For example, could an employer permit e-mail solicitation for Girl Scouts but bar solicitation for union activities? Old Board said “yes.”

  • Do employees in non-union workplaces have a right to have a representative of their choosing at disciplinary meetings?

    Old Board said “no.”

  • In Harborside Healthcare, Inc., the Board in 2004 ruled that pro-union activity of a supervisor warrants overturning a representation election if it “tended to have such a coercive effect on the employees that it was likely to impair their freedom of choice in the election.” In her dissent at the time, Liebman wrote, “The majority’s approach threatens to deprive unions of their natural leaders in the workplace.”
  • Can union salts (union employees who seek employment at companies the union is targeting) always be considered employees within the meaning of the NLRA?

    ​The Bush Board said “no.”

SEIU/NNOC Partnership Continues Winning Throughout Florida

The partnership between the Service Employees International Union (SEIU) and National Nurse Organizing Committee (NNOC), which began in 2009, continues its sweep across Florida. The alliance divides each hospital between nurses, which NNOC organizes, and the rest of the house, which SEIU is in charge of.

To date, SEIU and NNOC have won elections at Osceola (Kissimmee), Central Florida (Sanford), Community (New Port Richey), Fawcett (Port Charlotte), Doctors (Sarasota), Largo, Northwest (Margate), Westside (Plantation), St. Lucie (Port St. Lucie) and Oakhill (Brooksville) medical centers/hospitals. As of press time, the unions have elections underway at Aventura, Plantation General and Palms West (Loxahatchee) medical centers/hospitals. All these hospitals are affiliates of Hospital Corporation of America.

Former 1199/SEIU Political Head Departs White House for Democratic National Committee

Patrick Gaspard, former executive vice president of politics and legislation for 1199/SEIU and most recently director of the White House Office of Political Affairs, has been appointed executive director of the Democratic National Committee.

Gaspard joined President Obama’s campaign team as political director in mid-2008, and moved on to the White House after Obama’s victory while still maintaining his influence in Empire State politics.

As executive vice president at 1199/SEIU, he ran political affairs for its more than 300,000 members and retirees in New York, Maryland, the District of Columbia and Massachusetts. The local is the largest in the world.

Gaspard’s move is part of a major reshuffling of key White House players in preparation for the establishment of the president’s re-election headquarters, which will open its doors in Chicago by late March. To avoid turf battles, chaotic communications and duplicated efforts, aides said, President Obama is closing the office of political affairs at the White House and moving the duties along with Gaspard to the DNC.

Community Mercy Employees Nix SEIU

Employees at Community Mercy Health Partners facilities throughout southwest Ohio overwhelmingly have rejected being represented by the SEIU. Voting under a fair election agreement between the health system and union, employees in 39 of 44 bargaining units in January voted against joining SEIU.

Mercy Health Partners is one of nine regional health systems owned by Catholic Health Partners (CHP), a Cincinnati-based organization that provides a wide range of healthcare services throughout Ohio, Pennsylvania, Tennessee and Kentucky.

The election agreement between SEIU and CHP called for a non-interference secret ballot; neither the health system nor the union was allowed to campaign. Both organizations sent out informational packets to eligible Mercy employees to make an informed choice. The voting process was overseen by the NLRB.

“Some union elections have been distracting,” a spokesman for Mercy Health said. “The major difference between this process and a normal process is both parties agreed not to solicit employees inside or outside the hospital.”

Getting Prepared

The NLRB has become ground zero for labor relations change. The safest way to navigate the uncharted territory ahead is by being proactive.

Of all the changes in place or on the horizon, speed arguably is what unions want most. When employers have six or seven weeks between petition filing and election to develop and execute an employee information program, the playing field is somewhat level: unions win more than 60 percent of NLRB-supervised elections. (In the first six months of the Board’s 2010 fiscal year, they won nearly 70 percent.)

When the petition-to-election schedule is cut to a week or two, though, the playing field tilts sharply in favor of unions. Because they’ve been organizing for months, talking to employees and getting petitions signed, unions are ready to hold an election as soon as they file a petition. Employers, who generally are unaware of what the union has been up to until late in the game, can be caught flat-footed.

To maintain a direct working relationship with your employees, the News and Developments Affecting the Workplace safest assumption is that a union will take a run at your workplace; with union finances badly in need of replenishment, no employer is immune. With the assumption “it CAN happen here” in mind, build a readiness system around these five elements:

  • Vulnerability assessment

    You need to know your organization’s vulnerability on such key issues as supervision/management, working conditions, employee voice, dignity and respect and communications.

  • Education

    Your entire organization, from top to bottom, must understand how unionization would affect it.

  • Employee engagement

    The more engaged employees are, the less likely they’ll want a union.

  • Leadership training & development

    Your leadership will need training in the skills required to maintain a direct working relationship with your employees.

  • Communications

    Your organization’s ability to communicate quickly, effectively and legally about unionization is critical.

Go to top