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NLRB Re-Introduces 'Quickie' Union Election Rule

Posted by Mike Rudman on Feb 10, 2014 8:42:00 AM

The National Labor Relations Board last week resumed its effort to permit accelerated elections long sought by organized labor to limit the ability of employers to respond to union organizing efforts.

NLRBThe NLRB issued a notice of proposed rulemaking Tuesday on an initiative that would curtail employers’ ability to appeal eligibility and other issues prior to a union representation election. A federal court invalidated an earlier NLRB attempt to issue a “quickie election” rule because the agency lacked a quorum when it approved the regulation.

AIM was among several business groups nationally to have brought that court action.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up. Short elections provide insufficient time for a company to combat potential misrepresentations that the union has been able to make without the opportunity for an opposing view.

Among other changes, the proposed rule:

  • Eliminates the current requirement that a union representation vote cannot be held sooner than 25 days after the NLRB’s regional director issues a Direction of Election. 
  • Requires that unions be given employee email addresses and telephone numbers prior to the election. Currently, the union receives a list of eligible voters from the employer prior to the election. The list contains employees' full names and home addresses, but not their email addresses and telephone numbers.

Analysts believe the rule could shrink the average time from union petition to election from the current 38 days to as few as 10 days. The change comes despite the fact that the NLRB has met or exceeded its own goals during the past decade for the time it takes to conduct an election.

Unions have been successful in approximately two-thirds of representation elections during the past two years and that success rate is certain to improve with a compressed election schedule. Unions are also likely to target small employers that were previously uneconomical to organize.

Associated Industries of Massachusetts encourages employers to express their opposition to the proposed rule changes in one of several ways:

  1. Contact your federal representatives and to express your displeasure.
  2. Send your comments on the proposed rulemaking to http://www.regulations.gov. (Search for the proposed rule using Docket ID No. NLRB-2011-0002 and follow the instructions for comments.)
  3. Send your comments to Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW, Washington, DC 20570.

AIM also urges employers to address the conditions that invite unions into your company and focus on making a union unnecessary.

This means:

  • Training supervisors, managers and senior teams to recognize and fix problems before they become prominent features of your company’s culture.
  • Creating a positive work environment that responds to issues and doesn’t ignore them.
  • Dealing with those problem supervisors and managers who undercut your culture.
  • Training your management team at all levels to recognize the behavioral and group changes that occur during a union drive while it is still underground.
  • Fixing what you already know ails your organization.
  • Training you management team, from top to bottom, in what they can and cannot say when discussing unions and employees right to organize.

AIM can provide your organization guidance and training in each of these issues.  Contact Gary MacDonald at 617.488.8348, gmacdonald@aimnet.org for details.

Topics: Employment Law, National Labor Relations Board, Labor

House Bill Would Make Private Day-Care Providers Public Employees

Posted by John Regan on May 31, 2012 10:28:00 AM

Don’t be surprised to see your neighborhood day-care provider wearing a union tee-shirt the next time you drop your children off for the day.

Day CareThe Massachusetts House of Representatives passed legislation yesterday under which every private-sector family child-care provider receiving public funds to provide service to low-income or at-risk children would be declared a “public” or “state” employee. These new “public employees” would then be subject to a “card check” system and be “represented” by a single labor union.

Yesterday’s 117-32 vote came several weeks after legislators effectively killed a similar measure aimed at institutional child-care facilities.

AIM opposed both measures because they benefit unions rather than children. The proposals represent a clear and unprecedented intrusion by government into private business.

The bill says it would move private-sector employees into a collective bargaining unit for the following stated purposes:  

  • Develop and encourage education and training opportunities for family child care providers;
  • Improve the recruitment and retention of qualified providers;
  • Reimbursement and payment procedures;
  • The rate structure for family child care providers;
  • The rate structure for voucher and contracted payments for family child care services on behalf of low-income and other at risk children.

These duties are already the responsibility of state government, either the Department of Early Education and Care or the legislature. There is no need to create a “public employee” union to address the issues enumerated in the bill.  

AIM is not anti-union.  And we have been strong and visible supporters of efforts to improve early education opportunities in Massachusetts.

But this bill lacks logic and does nothing to advance the interest of children.

How did your legislator vote?

Topics: Unions, Associated Industries of Massachusetts, Labor

NLRB Rule Would Permit Multiple Bargaining Units at Same Company

Posted by Mike Rudman on Feb 22, 2011 8:59:00 AM

The National Labor Relations Board (NLRB) may use a narrow case involving nursing-home workers to establish rules allowing unions to organize small groups - as few as five to 10 employees - at individual workplaces.

NLRBThe Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile has the potential to alter how bargaining units are established in six million companies covered by the National Labor Relations Act.  At issue is whether the NLRB will create a presumption that a bargaining unit – the group of employees eligible to vote in a union election and ultimately represented by the union if it wins the election - is appropriate if it consists of all employees performing the same job.

AIM remains concerned that a presumption of an appropriate bargaining unit will allow organizers to create multiple “micro-unions” within the same workplace.  Those multiple bargaining units would create an administrative nightmare for employers who would have to negotiate separate contracts with each group while losing the ability to reassign employees to different jobs within the organization.

“The net effect of the proposal is that it would permit labor unions to carve out potential bargaining units simply on the basis of likely support and forego the current, universally accepted and democratic approach to organizing,” AIM Executive Vice President Brian R. Gilmore said in a letter to the NLRB  opposing the proposal.

“We urge you and your fellow members to take whatever action is necessary to prevent the Board from issuing a decision contrary to current practice, and to continue to evaluate the appropriateness of potential bargaining units on the facts of each individual case.”

The decision could make it easier for unions to organize by cherry picking a unit composed of the subset of employees most likely to organize, regardless of whether those employees constitute a practical unit. 

AIM recommends that employers who may be concerned about the implications of Specialty Healthcare and Rehabilitation Center of Mobile write directly to the NLRB and to elected officials to oppose the initiative. Letters to the NLRB should be directed to:

Hon. Wilma Liebman, Chairman
National Labor Relations Board
1099 14th Street NW
Washington, DC 20570-0001

Questions about the case may be directed to Gilmore at bgilmore@aimnet.org or 617.262.1180.

Topics: Associated Industries of Massachusetts, AIM, Organized Labor, Labor, NLRB

NLRB Seeks to Force Employers to Post Notice on Union Rights

Posted by Mike Rudman on Dec 22, 2010 2:29:00 PM

The National Labor Relations Board (NLRB) continued its aggressive reshaping of labor/management relations today by proposing rules that would require companies to notify workers – both through a workplace posting and by email - of their right to join a union.

NLRBThe rules would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.

The Obama administration has already instituted a similar posting requirement for federal contractors. Employers may wish to review that poster to get a sense of what they may have to hang on their bulletin boards.

NLRB maintains in a fact sheet that the proposed rule is intended “to increase knowledge of the (National Labor Relations Act) among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The new regulations come as unions frustrated by Congress’ decision not to pass labor priorities such as the Employee Free Choice Act or the Paycheck Fairness Act turn increasingly to the NLRB and other regulatory agencies to reverse what they view as a hostile atmosphere for organizing new members. Labor has suffered years of membership declines in the private sector, where just 7.2 percent of employees belong to a union.

Supporting the proposed posting rules were NLRB Chair Wilma Liebman, former counsel to the Teamsters, and recent board appointees Marc Pearce and Craig Becker, both of whom previously represented organized labor.  Brian Hayes, the lone Republican who serves on the board, dissented from the proposal, arguing that the NLRB lacks the authority to impose such a requirement on employers. Hayes contends NLRB can only require such a posting after a finding of an unfair labor practice by an employer.

The new rules - coupled with the Department of Labor’s stepped-up enforcement of employer misclassification of contract, temporary and exempt workers – will unquestionably aid unions as they launch an offensive to organize workers in the private sector. AIM has become aware of two local organizing campaigns just in the past two months that bear all classic hallmarks of aggressive union tactics.

AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union.

“I see this proposed rule as no value to the company or its associates and only an opportunity for organized labor to create stress in a healthy employer/employee relationship.  It could lead to an unwarranted distraction that could only negatively affect the wellbeing of the company and its associates,” said one employer who AIM asked to review the proposed rule.

The possibility of the NLRB allowing a union to represent workers without an election  is based upon the Gissel Packing Company decision in which the U.S. Supreme Court  approved the use of authorization cards as a measure of union sentiment for the purpose of imposing a bargaining order as remedy for an employer’s unfair labor practices. While the Court also noted that authorization cards are “admittedly inferior to the election process...,”  both Liebman and Becker have stated that Giselle should be the rule, not the exception.

Separately, the law firm Littler reports in its blog that the NLRB Acting General Counsel has announced a new initiative targeting employers during union election campaigns. In a memorandum sent to regional directors and officers, Acting General Counsel Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing.

We welcome your comments below. You may also contact Brad MacDougall at AIM, bmacdougall@aimnet.org or 617.262.1180, if you have questions.

Topics: Organized Labor, Labor, NLRB

Unions, Governmental Allies Launch All-Out Offensive

Posted by Mike Rudman on Oct 21, 2010 1:30:00 PM

AIM has warned employers for more than a year that organized labor, backed by a sympathetic administration and pro-union regulators, was preparing to launch all-out organizing offensive to reverse decades of declining membership and influence.

unionsWell, the battle has been joined and it looks like a bloody campaign for Massachusetts employers.

In the past 24 hours, AIM has become aware of two local organizing campaigns that bear all classic hallmarks of aggressive union tactics. One company learned about the organizing drive only after the union began handing out cards to arriving employees.  The second company found out about the campaign when the official NLRB petition for an election arrived on the president’s desk.

Both organizations now face expensive, contentious, resource-draining and uphill battles over the next six weeks to maintain control of their businesses.

The organizing campaigns come as the newly constituted National Labor Relations Board has issued several key decisions that will significantly change the regulatory environment for union organizing. All of the decisions featured a 3-2 vote with a trio of former union attorneys forming the majority:

  • NLRB ruled in favor of a union demonstrating (with large banners) against secondary employers with whom it had no direct labor dispute.  The decision seems to provide unions with the freedom to drag neutral parties into labor disputes and contravenes years of established precedent preventing secondary picketing.

  • The board reversed a previous decision that gave employees 45 days to challenge a voluntary decision by a company to recognize a union based upon receiving authorization cards signed by a majority of workers.  The new board ruled that such voluntary recognition cannot be challenged for up to a year. An interesting sidelight to the decision is the sharply worded dissent of the board’s two minority members who basically stated that the majority overturned precedent simply to enhance unionization.

  • The new majority has also indicated that it will review a 2002 decision giving successor companies the ability to challenge whether or not a union represents the majority of employees.  The board chairperson has indicated a desire to return to a standard agreed to in 1999 that when an organization operating under a union contract is acquired, the purchaser is obligated to continue to recognize the union with no opportunity to test whether or not it still represents the majority.

It doesn’t end there.  Two weeks ago, a California congressman introduced a bill that would essentially prohibit states from enacting “Right to Work” legislation.  The bill would require all employees to join a union if their employer has a collective bargaining agreement.  Today, in “Right to Work” states, an employee has the option to join the union or not with no impact on employment resulting from their decision.

The dramatic shifts in the organized labor environment require heightened awareness for all employers.  Unions continue to seek opportunities to build membership by focusing on organizations with weak or inattentive supervision, non-competitive pay and benefits or those lacking in real employee appreciation.  Despite the continued recession, employers with the self-indicting attitude that “they should be happy they have jobs” are most vulnerable. 

The two local organizing campaigns underscore the reality that an investment in training, awareness and understanding makes companies a less vulnerable target when the union appears.

AIM is a ready resource in providing you with the tools, training and insight to prepare your organization, and your critical first line supervision, to deal with a union threat. 

Topics: Associated Industries of Massachusetts, AIM, Employment Law, Organized Labor, Employee Free Choice Act, Labor

Massachusetts Employers Resume Hiring as Economy Improves

Posted by Karen Choi on Jun 15, 2010 10:47:00 AM

The 2010 Associated Industries of Massachusetts General Wage Report confirms that the Massachusetts economy has started to grow again and that compensation has re-emerged as a business priority.

After multi-year salary freezes, companies are assessing the competitiveness of their compensation programs to ensure retention of critical talent and the ability to recruit the people needed to meet business opportunities.

The most important result of the survey is that employers are hiring again. More than half of survey participants are filling open positions, while only 3.5 percent report a hiring freeze. Few companies are freezing salaries, delaying salary increases or cutting compensation in 2010.

Other positive signs include the restoration of overtime hours, second and third shift operations and internal promotions. Half of the employers who previously implemented furlough programs, reduced or eliminated bonus programs, or cut work hours during 2009 have restored operations to former levels.

The survey finds that Massachusetts employers plan to grant average merit pay increases of 2.1 percent for 2010. The actual pool varies significantly by company - 40 percent of employers report a merit pool budget of 3 percent, 27 percent have established no merit pool and a handful of companies are taking a more aggressive stand and have budgeted anywhere from 3.5 to 5 percent.

The bullish approach to compensation reflects steadily growing confidence in the economy during the past year among Massachusetts employers. The AIM Business Confidence Index surged into position territory for the first time in two years during May and has risen in 13 of 15 months since hitting an all-time low in February 2009.

Good news indeed for a Massachusetts economy still running at 9.3 percent
unemployment during the early and sometimes uncertain phases of
a recovery.

One thing is clear. The picture is very different from one year ago.

Topics: Compensation, Associated Industries of Massachusetts, AIM, Massachusetts economy, Massachusetts employers, Labor

Massachusetts House Passes Balanced CORI Reform

Posted by Christopher Geehern on May 27, 2010 4:48:00 PM

AIM thanks the Massachusetts House of Representatives, who amended and passed a bill (H.4712) Wednesday evening on a 138-17 vote to reform the state's Criminal Offender Record Information (CORI) system to the benefit of both job applicants and employers.

The House CORI measure reduces the sealing time for felonies from 15 years to 10, and for misdemeanors from 10 years to five and preserves the current availability of records to the public and to law enforcement. It includes much-needed improvements in the operation of the CORI system to broaden access and improve accuracy and response times.

Significant for employers are provisions to protect them from liability when in compliance with the law and allowing for the continued use of aggregators (third-party CORI users). A "ban the box" provision preventing employers from asking about criminal records as part of the initial job application exempts employers who are statutorily prohibited from hiring ex-offenders, and allows inquiries later in the process for others.

"The legislation recently approved by the Senate (S.2220) and now the House achieves the goals of CORI reform - a more accurate and efficient system that enhances employment opportunities while maintaining appropriate protections for public and workplace safety," said John Regan, AIM's Executive Vice President for Government Affairs. "We commend the House for attending to and successfully balancing the very real concerns of all stakeholders, including the employer community.  AIM will continue to work with legislators in the House and Senate as the two proposals move towards a conference committee between the two chambers.

In particular, we thank Speaker Robert DeLeo, Representative Charles Murphy, Chairman of the House Ways & Means, Representative Eugene O'Flaherty, House Chairman of the Joint Committee on the Judiciary and Minority Leader Bradley Jones for their contributions to reaching a satisfactory resolution to what has been a complex and contentious issue."

Topics: Massachusetts Legislature, Employment Law, CORI, House Speaker Robert DeLeo, Labor, John Regan, Policy

AIM Urges Senator Brown to Oppose NLRB Nominee

Posted by Christopher Geehern on Feb 5, 2010 11:59:00 AM

Associated Industries of Massachusetts asked Senator Scott Brown today to oppose the nomination of Craig Becker to the National Labor Relations Board.

AIM says in a letter to Senator Brown that employers are troubled by the prospect that Mr. Becker, Associate General Counsel to the Service Employees International Union, might attempt to impose administratively some elements of the flawed Employee Free Choice Act. One of those provisions would deprive workers of the right to a secret ballot in union elections.

AIM and hundreds of other business organizations articulated their concerns about the nomination in a letter to senators last week.

The Senate Health, Education, Labor and Pensions Committee endorsed the Becker nomination Thursday by a 13-10 party line vote. The Senate has scheduled a floor vote for Monday at 5 p.m. The nomination will be one of the first significant votes cast by Mr. Brown and political observers say it will provide a signal about how his election has changed the political calculus in Washington.

Topics: Employment Law, U.S. Congress, Labor, NLRB

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