Dear Everyone In Charge: Get to #@$ Work

So, President Obama used the (possible) Senate recess to fill the necessary positions at the NLRB again.

(Hi, everybody. I’m back)

Yes, I said again. Because he did this last time, too. Craig Becker, whose appointment just expired, was a recess appointment as well. Both times, incensed Republicans have unloaded a magazine of PR soundbites about the President circumventing the Constitutional role of the Senate, and creating some kind of rogue bureaucracy that’s equal parts fascist dictatorship and Marxist, wealth-sharing, Soviet state.

Meanwhile, a couple of news stories later, the Indiana Democratic minority is walking out of session again because the Republican majority is insisting on introducing legislation that would make Indiana the 23rd right-to-work state in the nation.1 That’s right, I said again. Again. Indiana Dems spent several weeks in a motel in Urbana-Champaign to keep the bill off the floor in 2010. Ground the whole legislative session to a halt.

Two labor issues, two stalemates among legislatures. Look, I know the ideology behind organized labor is deeply-rooted and not going anywhere any time soon. But that actually speaks to my point here. These are not new issues.2 The political lines between unions and company owners were drawn before the ones separating the modern parties. And still, Presidents appointed NRLB members who actually got confirmed, and minorities showed up on the first day of session.

The obvious question is why, all of the sudden, these historical fissures are causing such caustic stalemates. But, to be honest, I don’t really care what the question is. And whether you’re a unionized worker or a business owner, Republican or Democrat, neither do you.

Every day I wake up with items from yesterday’s to-do list. Every day I work too much, fight harder, and every night go to sleep too late with half a to-do list still to be done. We all are. Welcome to The Recovery. And that’s fine. That’s how we do it here in America. We work hard.

What we don’t need – worker and business owner alike – is for the entire legislative session or regulatory schema to get rutted by the pissing contest that has replaced political discourse, wondering if Hot-Button-Issue A is going to kill our company’s profit for the year. And (not to wax too grandiose) I’m not working this hard to live in a country that can’t suck it up and cooperate with people they don’t like. Even if it means taking the uppercut to the chin, voting “no” for the bill or the person you don’t like, and fighting to get a majority the next time around so you can win some fights.

Honestly, for three years now the economy’s been slowly clawing its way out of the toilet, and every economic pundit I’ve heard during that time has said the #1 thing holding us back is fear. Uncertainty. Employers need to know what’s going to happen a year from now to know whether it makes sense to hire someone. Employees can’t spend any money until they know they’re going to have a job in 6 months. We can’t know what the markets will do tomorrow, but we’re supposed to be able to forecast what the political climate will look like a year from now.

I don’t think the whole country is looking for a single answer to the economic problem. What we’d like, if anyone elected to anything is listening, is any movement at all. Just one time, for someone to say “well, they got us this time, we’ll get ‘em next time” and let us move on.

And yet, with approval ratings further down the crapper than their economy, Congresspeople and Senators from every seat on the political seesaw still pull this “I’m-taking-my-ball-and-going-home” garbage. It’s petty and weak. Learn how to lose, folks. The rest of us need to get some work done.

You know, if I’d hired a team that produced results this bad, I’d fire them all and start over. Man, if only I’d hired them. If only…

1. Right-to-work is a concept that means employers cannot require an employee to pay union fees or dues as a condition of employment. [↩]
2. Neither are the other 800 fights the two parties whine about every year, but I digress. [↩]

NLRB Postpones Poster Requirement

The National Labor Relations Board has moved the date its new posters must be up in most businesses to January 31, 2012.

According to the official press release, the NLRB’s reason is that there’s confusion from business owners about which companies are under the Board’s jurisdiction, and they want to spend some time educating the business community about the issue.

Eric Meyer over at the Employer Handbook calls bulls— on the PR explanation for the delay, and I completely agree. Eric notes that the Board made quite a big deal out of the FAQ they released with the final regulations, so there’s not that much educating left to do. Also, figuring out if you’re covered by the NLRB’s jurisdiction is not that hard. Seriously, we do hard things here; this is not one of them…1.

I think most employer-side2 attorneys would tell you the real reason for the postponement has something to do with the stream of lawsuits that have been filed challenging not just the poster requirement, but the NLRB’s ability to enact regulations at all.

The new date will pose some logistical problems, though. Many employers buy new laminated breakroom posters around the new year, and the companies that make them have been busy redesigning the 2012 models to fit the NLRB info in. Now that the Board’s regulation is up-in-the-air, poster companies (and the employers that buy those posters) are going to have to decide whether to print them with the info or not.

At any rate, no need to hang the new poster next month like we expected.

1. A fun aside: I first heard that phrase from a kindergarten teacher, who said it to a student asking for help gluing paper onto other paper. It comes in handy a lot. Feel free to steal it. [↩]
2. and probably employee-side [↩]

The NLRB Reversed Itself (Again)! Everybody Freak Out!

Come on, we all knew this was coming.

Before they lose a voting quorum1 later this year, the National Labor Relations Board has issued two major decisions overturning two highly-praised-and-criticized rulings by the Bush-era Board. They both suck for employers, but from the PR I’ve been reading over the past 12 hours, you’d think they were either going to save or kill America’s future. Neither is true.

I’m going to talk about one of the cases, Lamons Gasket, because it’s getting the most press.2 Then I’ll have a very calm word about hysteria and politics.

Lamons Gasket: Reversing the EFCA Straw Man

In Lamons Gasket Co., the Board reversed Dana Corp., a 2007 decision by the Bush-era Board that was pilloried by union folks from the day it was published. Here’s the issue:

Typically, when a group of employees votes to be represented by a union, there’s a period of time where the union’s validity can’t be challenged by employees. This time period, called the “recognition bar” is meant to give “the bargaining relationship…a fair chance to succeed.”3 Basically, the recognition bar keeps an employer from trying to goad its employees into revoking the union representation before it’s tried to work with the union.

In Dana Corp., the Board carved out an exception to the recognition bar. Where an employer voluntarily recognizes a union as the representative of its employees, the employees had 45 days to file a petition challenging union recognition. If 30% of the bargaining unit signed onto the petition, a secret ballot election would have to be held to make sure a majority of the workers actually wanted the union.

Here’s the thing: employers can voluntarily recognize a union after the union shows an “unassisted and uncoerced showing of interest from a majority of employees.” That “showing of interest” almost always means the union has collected recognition cards from a majority of the employees. If you’ve followed Labor Law at all, you know where I’m going with this. Cards? Secret Ballots?

Sounds a lot like the Employee Free Choice Act, right?

Yeah. In 2007, with the Presidential election looming, EFCA was a hot-button issue. Most people thought that an Obama election would mean near-instant passage of the Card Check law. (Didn’t exactly turn out that way, but in ’07, nobody knew that.) When the Board dropped Dana Corp. into that landscape, unions went nuts. They said Dana Corp. was doing away with decades of Board precedent on voluntary recognition and was a back door way to cut the legs out from under EFCA.

It wasn’t. The recognition bar still existed wherever employees actually voted for a union. Dana Corp. was a reasonable way to make sure that employees were getting a union that they actually wanted, instead of being strong-armed or confused into a representation that they’d be stuck with for a year or more. If you need more proof of this, check out Jon Hyman’s first-hand account of a Dana Corp. decertification here.

When it became clear that EFCA was going to die in Congress, unions saw reversing Dana Corp. as something of a consolation prize. EFCA the Home Game. If they couldn’t get the labor laws changed, at least they could get a liberal Board to reverse Dana.

And that’s just what happened. Just like we expected. In Lamons Gasket, the current Board examined data showing that Dana Corp. only decertified, 1% of voluntary recognitions, and therefore decided it was unnecessary. The decision isn’t shy about it’s relation to the bigger fight over EFCA:

The decision in Dana thus undermined employees’ free choice by subjecting it to official question and by refusing to honor it for a significant period of time, without sound justification.

Lamons Gasket Co. at Page 2 (emphasis added).

The Takeaway

So what does all this mean? It means that Liberals believe card check is a valid way for employees to choose a union, and that Conservatives don’t.

Shocker.

In reality, it means that there will be employees out there that are represented by unions that probably don’t have majority support. As an employer, I think it means you should refuse to voluntarily recognize a union unless you are 100% convinced your employees are on board.

And that’s it. After all the wrangling and shouting and this ridiculously-long blog post, that’s all Lamons Gasket means. Union drive? Demand the election.

(Epilogue)

Stop Screaming! Bad Labor Law ≠ Political Armageddon

Okay, so Lamons Gasket sucks. It reverses a ruling that was reasonable and really helped protect employees. But it was also pro-business, and it was replaced with a pro-union rule. If your labor lawyer didn’t tell you this was probably going to happen two years ago, then you need to start shopping, and drop the word “proactive” a lot during the bidding process.

The problem is both Dana and Lamons cannot escape the politics surrounding them. But do those politics affect your business? Not as much as everyone is trying to convince you they do. Lobbying groups, twitchy labor lawyers, conservative bloggers and politicians are pulling out some serious shock and awe in response to the decision. Forced unionism! Attacks on worker’s rights! An underhanded scheme! By union extremists! That have hijacked the government! And they’re going to tell you all about it in URGENT LABOR LAW ALERTS!!!!!

Dial. It. Down.

I think Lamons Gasket is a dumb reversal that will hurt employees, but it’s not the end of the world. Remember the takeaway – if you think the union could sneak in against your employee’s will, just don’t voluntarily recognize. Make ‘em prove it. End of issue.

The effect of the NLRB roller coaster will not be avoided by bloggers and lobbyists working you into a frenzy, making you hate Democrats or overblowing the issue in whiny press releases. Leave the politics to people who don’t have anything better to do.

I promise you, the best thing you can do for your business is turn off the spigot of rhetoric and go back to work. The decision is what it is. Not good, but we’ll cope. And regardless of what you hear, it hasn’t eliminated secret ballot elections. EFCA will not be passed on its back.

This is what the NLRB does. When the White House changes hands, the NLRB does, too. And that means some opinions from the previous Board get reversed. Dana’s been in the sights of unions since it was issued in ’07. No one on our end of the bargaining table should be surprised that it got axed. If a conservative Board takes over, I can tell you right now it’ll get knocked back the other way.4

Being angry at the Board because it issued the decision is like being mad at the bears in Grizzly Man. It’s a tragedy, no doubt. But you knew it was coming.

It’s the Nature of the Beast.

1. AGAIN. $#%@ CONGRESS. [↩]
2. The other case is actually more important, IMHO, and will get its own post soon. [↩]
3. Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944). [↩]
4. Unless Congress ever actually acts to shore up the NLRA one way or the other. Want to take bets on that happening? [↩]