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

Employers Must Prepare for Seismic Changes in Labor Relations

Posted by Michael Rudman on May 4, 2010 4:55:00 PM

What Do Wilma Liebman, Mark Pearce and Craig Becker have in common?

a) All are attorneys who have worked for, or represented, unions.
b) All are members of the National Labor Relations Board.
c) All have expressed opinions favoring unionization.
d) All of the above.

Answer: D, All of the Above.

This may be one of the few cases when you're not happy about passing a quiz. The newly constituted National Labor Relations Board signals a seismic change in American labor relations, one that will unleash aggressive government oversight of the way in which you deal with employees and open the door to union organizing even in well-run companies.

Wilma Liebman is the Chairperson of the National Relations Board and has been on the Board since 1997 when appointed by President Clinton.  Prior to her Board experience, she served as counsel to a number of unions including the Teamsters.  She has been recently quoted as saying that during the recent Bush Administration, "the NLRB has lost its way"

Mark Pearce was recently sworn in as a Member of the NLRB as a result of a recess appointment by President Obama.  He has represented numerous union clients such as UNITE HERE in his private labor practice.

Craig Becker was also recently sworn in as a recess appointment.  He was most recently the General Counsel for SEIU (the nation's largest union) and his controversial views in favor of unionization led to his failure to achieve Senate confirmation to the NLRB earlier this year.

Associated Industries of Massachusetts opposed the nominations of Mr. Becker and Mr. Pearce because of concerns that they might seek to implement the most troublesome sections of the proposed Employee Free Choice Act (EFCA) in an administrative manner. EFCA would deprive workers of the right to a secret ballot in union elections and replace it with a "card-check" system under which a union would gain bargaining authority by submitting card signed by more than 50 percent of workers.

"New consideration is being given to the notion that a labor friendly board might attempt to implement some elements of EFCA under the existing statutory scheme," said a February 22 article in Bloomberg Law Reports. "This new majority bloc will undoubtedly pursue expansions of all of the remedial options - regardless of whether or not EFCA is ultimately passed into law"

What does Mr. Becker believe about union-management relations? He provides clues in a 1993 Minnesota Law Review article in which he argues that traditional notions of democracy should not apply in union elections and employers should be barred from attending NLRB hearings about elections and from challenging election results even amid evidence of union misconduct.

Here are several quotes from Mr. Becker's article, Democracy in the Workplace: Union Representation and Federal Labor Law:

 "...employers should be stripped of any legally cognizable interest in their employee's election of representatives."

"...employers should have no right to raise questions concerning voter eligibility or campaign conduct"

"...employers should have no right to be heard in either a representation case (election) or an unfair labor practice case"

"The (NLRB) should return to the principle that a union election is not a contest between the employer and the union . . .Unlike the other proposals however, it could be achieved with almost no alteration to the statutory framework."

"With only eight percent of people in the private sector represented by unions, how can anyone say that we should close off or narrow the means by which employees can obtain union representation?"

"...all employer speech to employees during working hours, at the workplace, is speech to a captive audience." 

It's obviously going to be a rough ride for employers during the next several years. The most effective response to all of these developments is good management, and that's where AIM comes in. Member employers from throughout Massachusetts look to us each year to help them understand the regulations with which they comply and develop systems both to meet the regulations and improve the productivity of their operations.

I invite you to join me at one of four AIM seminars in June called The Changing Face of Labor Relations. We'll outline the changes at the NLRB, discuss the clear and present risks they pose to your enterprise and review the preventive measures to consider in reducing your vulnerability. There will be plenty of time for questions and answers.

The sessions will take place in Marlborough and Burlington on June 2, Taunton on June 8 and Chicopee on June 14.

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

Reports say President to Make Becker Recess Appointment

Posted by Sandy Reynolds on Mar 24, 2010 11:51:00 AM

President Barack Obama plans to use a recess appointment to place union lawyer Craig Becker on the National Labor Relations Board, Iowa Senator Tom Harkin told Congressional Quarterly yesterday.

"It's going to happen," Harkin told CQ. The Iowa Democrat is chairman of the Senate Health, Education, Labor and Pensions Committee.

Congress begins a two-week recess on Friday. Senate Republicans blocked a vote on Becker's nomination last month in one of the first votes taken by newly elected Massachusetts Senator Scott Brown.

AIM and other business groups have opposed the nomination because of concerns that Becker, associate general counsel of the Service Employees International Union, might seek to impose administratively the most anti-employer sections of the stalled Employee Free Choice Act. EFCA would deprive workers of the right to a secret ballot in union elections.

Economist Anne Layne Ferrar has estimated that EFCA would cost 600,000 American jobs per year.

"The appointment will unquestionably change the balance of the NLRB away from employers," said AIM's Michael Rudman (, who has spent 30 years working in the area of labor relations and union negotiations.

"The message I stress when teaching labor relations seminars or working with AIM member employers is that good management is the best defense against unionization. The new landscape in Washington DC underscores that approach." 

The five-member NLRB has operated with only two members since January 2008.

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

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