Haste Makes Waste? Unions Feeling Flattened by Busy Board

They’re protesting in D.C. Using catchy nicknames. American Rights at Work has started a blog. The ABA is having a conference, for chrissakes. Clearly, something is going on over at the NLRB.

It has been dubbed the “September Steamroll”: 61 decisions in the course of a few weeks that, according to the labor folks, are a big high-five to anti-union emoployers and a different gesture – using a few less fingers – to the unions trying to organize them.

The unions say that the prolific actions of the National Labor Relations Board this fall, including some big ones we missed reporting on around here, are a last-ditch effort by a Bush-appointed Board to “do as much damage as possble”.

A summary of the big decisions and some coverage of the debate over their importance appears after the jump.

On November 15 union supporters marched through D.C. in protest of the “steamroll”, carrying super clever signs that said “NLRB: Close it For Renovations” (whoever’s writing for these guys should help out the WGA). In fairness, they also had signs that said something about the Employee Free Choice Act – boo-ring! Pick one protest and stick to it, huh?

The mass of decisions includes cases like Toering Electric Co. (blog post here), which further eroded the already tenuous protection afforded to union salts, and a doozy called Dana Corp. that overhauled (some would say eliminated) the ability of a union to be voted in by card check.

The WaPo article on the protests quotes former board members as saying that this is just a busy board trying to get in cases before the end of the year, and of course they’re going to side with business, because the majority is republican. But there’s another quote in the piece that makes this impartial observer think twice. From Chairman Battista’s prepared statement:

If these groups truly believe that our recent decisions are not consistent with the National Labor Relations Act, they are free to challenge those decisions in court — either directly in those cases in which they are a party, or they can assist in such a challenge in those cases where they are not a party,” Battista said in the statement. “I am confident that our decisions will be upheld on review. 

Confident? Yeah, I bet he is.

The unions are focused too much on the short term. The Board isn’t racing because they’ve only got until 2008. If the Board is truly pro-business (as has been recently alleged) it’s had this gun cocked a long time. All that’s happened now is that John Roberts showed up and pulled the trigger.

If you were the NLRB, and you’d been wishing you could favor business over unions, and then Roberts shows up and starts throwing out $80 million cigarrette verdicts and giving pension plans automatic subrogation rights on participant personal injury judgments, wouldn’t you get a little more ballsy?  The way I see it, Battista & Co. are throwing down a gauntlet – good or bad – waiting for someone to roll this heavy machinery across town and see what happens.

But, like most steamrollers, this one’s bound to move pretty slow (pertinent holiday exceptions noted).  And in the meantime, expect these decisions to make their way up federal circuits that will start to look more and more disjointed, between conflicting rulings and the inevitable change of personnel at the Board next fall.

Not a bad time to be entering the L&E world, huh? Speaking of which, back to finals. See everyone soon.

Controversial New NLRB Ruling: Act Only Protects People Who Want Jobs

The NLRB has limited the National Labor Relations Act’s protections to only those job applicants who really want jobs they apply for. This will finally cut out all those independently wealthy jerks who apply for jobs and then turn them down just for laughs.

In Toering Electric Co., 351 NLRB No. 18, the Board said that only applicants with a “genuine interest” in developing an employment relationship with an employer will be covered under the Act. The General Counsel will have the ultimate burden to prove the applicant intended to develop the relationship, and the Board said that he could use receipts from restaurants and movie theaters where the applicant took the employer on dates and witness testimony of hand holding and make-out sessions at clubs as evidence.

Yeah, we made that last part up.

This is really another assault on the union strategy of “salting” that the Board seems oddly obsessed with lately.

As we previously reported, The Board limited salting protection earlier this year, holding that Salts would have to prove they planned to stay after the campaign if they wanted back pay for being let go. In Toering Electric, the Board (though seriously divided) raises the bar for bringing a claim at all, holding that Section 2(3) requires at least a “rudimentary economic relationship” that is absent in true salting cases.

The dissent went to town on that, saying nothing in the Act says anything about a person’s motives for applying – that you could be our hypothetical billionaire above and the NLRA should afford you the same protection as anyone else.

The big problem we see here is that the Supreme Court unanimously held that salts were protected under Section 2(3). If this trend in the Board continues – we see a trip to the Big House coming soon – and with the Supremes walking with their new gangstar lean, the Board may find the support they’re looking for.

Let us know what you think in the comments.

NLRBU is Not a College, and Other Things We’ve Learned.

As promised in an earlier post, here’s some background on the NLRB/Union dispute (whose latest battlefield has been Chicago), mostly gleaned from Bob Gilson’s articles on FedSmith.com and Jeffrey Hirsch’s posts on the Workplace Law Blog. (links to these sources are at the bottom of this post).

Wow. In our defense, this whole thing started before CE was a glimmer in our bleary, hungover eyes, but still – how did we not know about this?! This story has everything – federal agency fights, lawyer bickering, Press Release Wars, Giant Rats – this is hollywood-caliber stuff (tell us Richard Riehle would not kill as GC Meisburg).

Ok, so here’s the juice, based on all the google searching our fledgling staff is currently capable of:

On March 14, the FLRA issued a decision consolidating the four bargaining units represented by the NLRBU for collective bargaining purposes. The units were separated by office (DC and satellite offices) and by which “side” of the NLRB they worked for (General Counsel or the Board). The NLRB had argued against the consolidation, claiming Section 3(b) of the NLRA separated the GC and Board offices, and therefore the units must also be separated.

Then, on June 25, General Counsel Meisburg sent a memo to agency employees explaining (and we’re paraphrasing, here) that he felt in his heart of hearts that the FLRA had made a terrible mistake, and sadly he was forced, obviously against his will, to refuse to bargain with the union in order to bring the matter before a federal judge. Then the memo let out a big sigh and one lone tear… A press release was issued three days later. The memo/press release explained that the FLRA decision was going to get in the way of 40 years of really good bargaining between the NLRB and its union. It also contained a quote from the GC that is worth repeating, as you will surely want to reference it a couple paragraphs from now:

I want all of you to know that my decision to test certification is rooted in my firm conviction that maintaining the independence of the General Counsel is fundamental to the functioning of this Agency.

Seriously, remember that line, and click the jump. We promise it’s worth it.

In appropriate fashion, sometime in early July, the union responded, pointing to the well-reasoned (if poorly-worded – grammar check, maybe?) FLRA decision, which analyzed congressional history and the passage of section 3(b) and concluded the independance of the sides was not in jeopardy by the consolidation. It also pointed out that the the bargaining units had been “speak[ing] with one voice on virtually every topic that is addressed without any compromising of the GC’s prosecutorial prerogatives.” Oooh, dang.

The union said that the GC’s been bargaining with both sides for 25 years or so, albeit unofficially, and it hasn’t seemed to bother him before. In fact, we noticed in the FLRA decision (yeah, we read it) that the policy of each side’s negotiators is typically to run agreements by each other, so Board-side employees don’t get casual fridays while GC-side employees are stuck in suits or vice-versa.

Plus, according Jeffrey Hirsch at Workplace Law Blog, the past 40 years of negotiations have not been so rosy:

It is perhaps a well-known secret that labor relations between the Board and its employees have long been troubled. When I worked there, negotiations over a new collective bargaining agreement got so bad that the union picketed in front of headquarters.

Okay, go back and read that Meisburg quote again. We think somebody’s fibbing!!

Anyway, GC Meisburg lived up to his word on refusing to bargain, which sent the union into something of a tizzy. In August it picketed in DC (accompanied, of course, by another press release). We’re not sure where, but we’re hoping it was in front of NLRB headquarters, becasue that would be clearly the awesomest place. Not content to walk around in circles with signs, the union ramped up its rhetoric big time. From the release:

National Labor Relations Board Union members today carried informational picket signs and distributed leaflets demanding the resignation of National Labor Relations Board General Counsel Ronald Meisburg. The Union alleges that Meisburg, a presidential appointee whose term ends in 2010, has engaged in conduct that shows defiance of Federal Law and contempt for the rights of his employees.

Yep. They’re demanding he resign. Awesome. We read that last little bit as the pr version of that tried-and-true campaign ad tactic: “this guy you don’t know is total buddies with this other guy you hate.” (Thanks Professor Boynton)

The release also promised pickets at random places where Meisburg would be attending. We know they threatened to picket the Jersey regional NLRB office on their 50th Birthday in September, but the Jersey office cut off their celebration to avoid the scene. Other than that, all we know is that they were outside the University Club on Thursday.

Ok, clearly the NLRB thinks that consolidating the bargaining units will cause a complete breakdown of the congressional separation of the GC’s office and the Board. How one leads to the other is, um, not exactly clear. Plus, according to the union’s first press release, this whole debate is over less than 40 employees. Put all that together, and this seems like agency grandstanding to us (and Jeffrey Hirsch). But the NLRB is right – its only recourse if it was actually worried about the legality of the decision is to force the FLRA to bring a ULP against it and take the thing to court, and Bob Gilson seems to think the FLRA has been muscling its way around other federal agencies for a while now.

So which is it? Is the NLRB just using the only avenue available to it, or is this just a urinal swordfight between big- and little brothers? You tell us, in the comments.

Jeffrey Hirsch’s Posts:
Labored Relations at the NLRB – Workplace Law Blog
NLRBU Response to NLRB’s Test of Certification

Bob Gilson’s Posts:
Did I Miss Something or Did FLRA Recently Declare NLRB Unable to Understand a Unit Issue?
NLRB v. FLRA: Round Two Coming Up
NLRB V. FLRA: NLRB Union Pickets and Exchanges Press Releases with Management in the Ongoing Dispute over FLRA’s Decision
Picketing, Hyperbole and the National Labor Relations Board