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Will NLRB Seek Shorter Union Election Campaigns? (Read More…)

Management attorney warns shorter campaigns would put employers at disadvantage.

Thursday, January 20, 2011
By Steve Minter

When 30% of employees at a facility sign an authorization card, a union can go to the National Labor Relations Board and petition for a secret ballot election. Typically, the election occurs within seven weeks after the NLRB accepts the petition.

But comments attributed to Mark Pearce, an NLRB board member, have stirred concerns in management ranks that the board is attempting, in the words of Frank Saibert, an employment attorney with Ungaretti & Harris, to “achieve through rulemaking or adjudication what it could not get through legislation, particularly the Employee Free Choice Act.”

At issue is a remark by Pearce, an Obama Administration appointee, at Suffolk University on October 21. Asked what he thought about the Canadian model for union elections, which may occur in only 5 to 10 days, Pearce allegedly expressed support for a shorter time frame. In a follow-up with IndustryWeek, Pearce said that given the large number of unfair labor practice charges filed or associated with many elections, it’s in the best interest of workers that the time between the petition and the election be as brief as practical. However, he said he is not endorsing any particular model or any particular time frame at this time.

Saibert says reducing the typical time for election campaigns from 42 days to 10 days or less puts employers at a serious disadvantage in terms of making their case against union representation. “Remember, up until the time that the union goes to the NLRB with its petition, it is doing everything behind the scenes and the employer doesn’t know about it,” he says.

Saibert points to other actions taken by NLRB which he believes could negatively impact employers. In particular, he cites two memoranda issued by NLRB’s general counsel, Lafe Solomon. On September 30, Solomon issued Memorandum GC 10-07, which makes it a priority to ensure that “effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces.” The memorandum sets out procedures for these remedies, including a “vigorous” commitment to pursuing injunctive relief against employers. Saibert argues that such injunctions represent a “preliminary step to freeze me in my tracks and to put these people back at work even though I man have good reason to fire them…”

The other memorandum, GC 11-01, issued December 20, notes that discriminatory discharges “are often accompanied by other serious unfair labor practices such as threats, solicitation of grievances, promises or grants of benefits, interrogations and surveillance.” Solomon lays out remedies for each of these employer actions designed to “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice.”

Given a more active NLRB, Saibert says employers should urge their trade associations to lobby Congress to reign in these interpretations through oversight. He also urges employers to develop a plan now for dealing with a possible unionizing campaign and to take traditional measures to promote job satisfaction such as keeping lines of communication with employees open and paying a competitive wage.

Posted by Admin on 01/20 at 10:11 AM

Feds Threaten to Sue States Over Union Laws (Read More…)

By Sam Hananel
Jan 14, 2011
WASHINGTON – The National Labor Relations Board on Friday threatened to sue Arizona, South Carolina, South Dakota and Utah over constitutional amendments guaranteeing workers the right to a secret ballot in union elections.

The agency’s acting general counsel, Lafe Solomon, said the amendments conflict with federal law, which gives employers the option of recognizing a union if a majority of workers sign cards that support unionizing.

The amendments, approved Nov. 2, have taken effect in South Dakota and Utah, and will do so soon in Arizona and South Carolina.

Business and anti-union groups sought the amendments, arguing that such secrecy is necessary to protect workers against union intimidation. They are concerned that Congress might enact legislation requiring employers to allow the “card check” process for forming unions instead of secret ballot elections.

In letters to the attorney general of each state, Solomon says the amendments are pre-empted by the supremacy clause of the Constitution because they conflict with employee rights laid out in the National Labor Relations Act. That clause says that when state and federal laws are at odds, federal law prevails.

Solomon is asking the attorneys general in South Dakota and Utah for official statements agreeing that their amendments are unconstitutional “to conserve state and federal resources.”

In his letter to South Carolina’s attorney general, Solomon asks the state to take measures that would prevent the Legislature from ratifying the amendment. Solomon requested that Arizona’s governor decline to make the amendment official.

Utah Attorney General Mark Shurtleff said he believes the state is on solid ground. He plans to coordinate a response with the other three states.

“If they want to bring a lawsuit, then bring it,” Shurtleff said. “We believe that a secret ballot is as fundamental a right as any American has had since the beginning of this country. We want to protect the constitutional rights of our citizens.”

South Dakota Attorney General Marty Jackley also promised to “vigorously defend our South Dakota Constitution” against any federal lawsuit.

Unions long have pushed for the card-check legislation, but the effort hasn’t won enough support in Congress. Union officials say companies often use aggressive tactics — borderline illegal, they contend — to discourage workers from organizing unions.

Americans for Prosperity, a conservative group that spent millions to back congressional Republicans in last year’s elections, was among the groups that pushed for passage of the state amendments. Phil Kerpen, the group’s vice president for policy, said the NLRB’s action “shows how determined the board is to accomplish card check by backdoor means against the wishes of the American people and Congress.”

Kimberly Freeman Brown, executive director of the pro-union group American Rights at Work, said the board was confirming that “these initiatives were intended to restrict workers’ rights to determine how they choose a union, disingenuously cloaked in the language of worker protection.”

Posted by Admin on 01/16 at 03:38 PM