Mike Rudman

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Can Government Tell an Employer Where to Locate?

Posted by Mike Rudman on Jul 21, 2011 1:41:00 PM

Should the government have the authority to tell a private employer where to operate its business?

National Labor Relations BoardThe National Labor Relations Board (NLRB) apparently thinks so, and that’s why Associated Industries of Massachusetts will next week express the support of Bay State employers for the new Protecting Jobs from Government Interference Act (HR 2587). The measure, introduced this morning by House Republicans, would prohibit the NLRB from dictating where a private business can and cannot locate jobs in the United States.

Introduction of the bill comes three months after the NLRB filed a complaint against The Boeing Company for creating work in South Carolina and demanded that the work be transferred to Puget Sound, Washington. If successful, the NLRB’s action may destroy an estimated 1,000 South Carolina jobs and have a chilling effect on job creators across the country.

AIM will join business organizations from throughout the country in signing a letter urging Congress to approve the Protecting Jobs Act to blunt the “all-out attack on business” being mounted by the NLRB and the U.S. Department of Labor. That offensive includes measures to limit the time employers have to respond to union organizing elections, a “gag rule” that would require employers to disclose when they use labor consultants and a pending case that would reverse decades of established law by permitting micro-unions.

“No government board should have the authority to tell a private employer where it can run a business” said Minnesota Republican Representative John Kline, chair of the U.S. House Committee on Education and the Workforce.

“Yet, as the Boeing dispute has made disturbingly clear, the National Labor Relations Board is empowered to override the business decisions of American employers. It would be irresponsible for Congress to stand by and watch as this threat to job creation undermines the strength of our economy.”

The NLRB has more than a dozen remedies at its disposal under current law to hold employers accountable for unlawful labor practices, including the authority to order a private company to relocate or transfer existing or planned employment. The new legislation amends the National Labor Relations Act to prohibit the NLRB from ordering any employer to relocate, shut down, or transfer employment under any circumstance. The limitation on the NLRB’s authority will apply to all cases that have not reached final adjudication before the board.

AIM and other employer groups are urging the House of Representatives to vote on the Protecting Jobs Bill before the August recess.

The federal complaint against Boeing comes as unions frustrated by Congress’ decision not to pass 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.


Topics: Employment Law, U.S. House of Representatives, National Labor Relations Board

NLRB Rule Seeks to Speed Pace of Union Elections

Posted by Mike Rudman on Jun 22, 2011 12:07:00 PM

The National Labor Relations Board (NLRB) continued its effort to reshape labor-management relations yesterday by proposing regulations that would shorten the time employers have to respond to union organizing campaigns.

Union electionsThe rule changes would reduce by several weeks the current average period of 40 days between the submission of union cards and the holding of a union election. The accelerated time frame would come from simplifying procedures, deferring litigation, and setting shorter deadlines for hearings and filings.

The NLRB adopted the proposed regulations by a vote of three to one, with Republican member Brian Hayes casting the lone dissenting vote.

“Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize or, rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining,’’ Hayes wrote.

AIM opposes the rule change and expects to submit formal comments to the NLRB. The board will accept comments for 60 days.

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. Decades of experience in dealing with unions tells me that 10-day elections are insufficient time for a company to combat the promises, lies and misrepresentations that the union has been able to make without the opportunity for an employer to present an opposing view.

Organized labor wants shortened elections desperately since first-time union elections produce contracts only about 56 percent of the time. Unions are often unable to bargain to an agreement and lose their majority representation assumption as employees express “buyer’s remorse.”

The most disconcerting provision of the NLRB proposal would deprive employers of the ability to seek NLRB review before the union election of decisions made by regional labor administrators. The new rules would eliminate the pre-election request for review and instead postpone the review until after the ballots have been cast.

“Today, of course, the Board is routinely criticized for doing what the statute requires it to do.  It is fair to predict, then, that the new proposals will be controversial.   That controversy is unfortunate, but it is not a good reason for the Board to abandon its responsibilities,” NLRB Chair Wilma Liebman said in a statement.

The new rules underscore AIM’s longstanding concern that the pro-union NLRB seeks to implement on its own major portions of the Employee Free Choice Act that has so far failed to pass Congress. The Employee Free Choice Act would eliminate secret-ballot representation elections.

Topics: Organized Labor, National Labor Relations Board

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 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, 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

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