NLRB IN THE SPOTLIGHT; THREATENS TO SUE 4 STATES

Washington, D.C.--  In the first week of the new year, President Obama officially nominated two individuals to serve on the National Labor Relations Board (NLRB). Lafe Solomon, who has been serving as the NLRB’s Acting General Counsel, was picked to be General Counsel and Terrence Flynn, chief counsel to NLRB member Brian Hayes, was nominated to become the fifth member of the five member board. Should Flynn be confirmed, he would join Hayes as the second Republican on the Board.   The NLRB is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

While it’s unclear how soon these nominations will be considered by the Senate, the confirmation hearings do provide the Senate with an opportunity to review much of the recent NLRB activity that has recently unnerved many employers.

The Board is slated to make decisions in many key cases, including Lamons Gasket Company, which addresses issues with card check certification, and Roundy’s, dealing with workplace access for union organizers.

In addition, the Board has already begun the process of proposing new rulemaking that seeks to make sweeping changes to employee relations by requiring employers to post a notice to employees of their right to unionize. Board Member Hayes has expressed the view that the NLRB lacks the necessary authority to propose this rulemaking, which would require employers to display posters of union rights as well as in some cases make employers distribute such a notice to employees through e-mail.

On top of this, the National Labor Relations Board has threatened to sue the states of Arizona, South Carolina, South Dakota and Utah over recently passed state constitutional amendments that require secret-ballot elections before a company can be unionized.

The board says the states can't override federal law that gives workers the option of the so-called card-check method of organizing, which unions favor but many employers oppose.

Both methods of organizing are legal under federal law, the NLRB said in a letter to state attorneys generals on January 13. The difference is that unlike secret-ballot elections, card check simply requires union organizers to collect a majority of signed petition cards from employees backing unionization.

Still, when the card-check method is used, the employer has the final say in whether it wants to recognize the union. Unions have been pushing for federal legislation that would eliminate the need for the employer's blessing and allow them to bypass secret-ballot elections in favor of card-check.

The Employee Free Choice Act, which was first introduced in Congress in 2009, would firstly, allow a union to be certified as the official union to bargain with an employer if union officials collect signatures of a majority of workers. The Bill would remove the present right of the employer to demand an additional, separate ballot where over half of employees have already given their signature supporting the union.  Secondly, the Bill would require employers and unions to enter binding arbitration to produce a collective agreement at latest 120 days after a union is recognized. Thirdly, the Bill would increase penalties on employers who discriminate against workers for union involvement.

The amendments to the four states' constitutions were approved Nov. 2 by voters in those states. The amendments have already taken effect in South Dakota and Utah and are expected to become effective soon in Arizona and South Carolina.

In his letter to the state attorneys general, acting NLRB general counsel Lafe Solomon said the board had authorized him to bring a civil action in federal court to invalidate the amendments. Mr. Solomon also said the agency was willing to first discuss any alternatives the attorneys general might have.

The NLRB's move could put the Obama administration in a difficult spot as it seeks to refashion itself after the Democrats' midterm election defeat. Federal agencies such as the NLRB and the Environmental Protection Agency appear to be continuing policies begun long before last November. That could put Washington's rule-making bodies at odds with the new tone set by the president's choice of William Daley as White House Chief of Staff, a man known for his ties to business.

Every union member should also know that essentially, “card check” exists on a voluntary basis, and state ballot initiatives can’t take it away. Of course, those ballot measures are really there to drive up Republican voter turnout on Election Day, not make effective policy changes to improve the quality of life for workers of those states.