NLRB Update: Everyone But Becker

Senate confirms Pearce and Hayes, sidelines SEIU's Becker.

According to Bloomberg...

The National Labor Relations Board reached its full five-member size for the first time since December 2007 after the U.S. Senate confirmed two of President Barack Obama’s nominees.

Brian Hayes, a Republican Senate aide, was confirmed by the Senate as it approved a package of almost 70 of Obama’s stalled nominees. The Senate also confirmed Mark Pearce, a Democrat Obama appointed to the board in March, for a full term.

However, the one person the Senate appears to have overlooked? The SEIU's Craig "Refuse to Recuse" Becker.

Becker, opposed by Republicans and business groups for his ties to labor unions, wasn’t confirmed by the Senate today. That means he will serve on the board only until the end of 2011, less than the full five-year term.

With Andy Stern opting to reside in Corporate America now, it appears the SEIU may not have as much sway as it did just a few short months ago.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Is Obama’s NLRB Looking to Suppress Worker Votes in Union Elections?

As President Obama's union-controlled National Labor Relations Board continues on its quest to help unions do all they can to unionize America's workers, a hint of their newest attempt may come in the form of a request for information (RFI) through the federal government's procurement website.

For 75 years, when a union seeks to unionize a company, the NLRB's primary method for determining whether a majority of workers wish to be unionized is through a secret-ballot election that includes a paper ballot and private, portable NLRB voting booth.  More importantly, except in extraordinary cases where employees are scattered across geographic areas, these elections are almost always done on an employer's premises and on working time.

Why are they done on an employer's premises?  The reason is simple.  Historically, the NLRB has viewed making the election process available to all the affected workers is preferable than having a minority of employees decide the fate of all affected employees.

Note: NLRB elections are decided by a simple majority vote.  In order for a union to win, it needs 50% + 1 of those people who actually vote.  For example, if there are 100 workers in a voting unit and all 100 vote, a union needs 51 votes in order to win the right to represent all 100.  However, if only five people vote and 95 (for whatever reason) do not vote, if three out of five workers vote to unionize, all 100 workers are unionized.

As they are in politics, unions are effective in getting out the vote in union elections.  As a result, unions win approximately 68% of all elections held this way.  However, when union elections are held in the workplace, there is also a greater likelihood for all affected workers to participate, including those that do not want the union. And that is something the union-controlled NLRB appears to want to change.

According to the NLRB's RFI, the agency is seeking information for electronic voting for...

...the acquisition of electronic voting services to support conducting secret-ballot elections to determine representation issues. Specifically, the Agency requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting...


...the Agency specifically requests information, to the extent available, relating to what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion.

In other words, it appears the union-controlled NLRB is about to move a process that has primarily taken place in the workplace (and has worked well) out into the streets.

And the agency is closing the RFI quickly—June 29th—which indicates it is going down that path, without much time for there to be an opposition mounted.

As one of the more common union-organizing ploys is telling workers "if you don't want the union, don't vote" (a means of tricking "NO union" voters from voting), the NLRB's push toward off-site, electronic voting appears as a willingness to disenfranchise (read: suppression) workers who oppose unionization.

Equally important is the ability for unions to further pressure workers into voting for the union outside the workplace.  As the law firm of Ford & Harrison notes:

While a shift away from the on-site, secret-ballot election makes little sense with respect to the NLRB representation election process, the potential for such a shift does create great concern for employers and employees alike. The primary goal of the on-site, secret-ballot election is to ensure the presence of "laboratory conditions" in the election process – to ensure that the voters are not subject to outside influences at the time immediately leading up to, during, and immediately following the casting of the ballot. If the NLRB eliminates the on-site aspect of the secret-ballot election, the NLRB is also eliminating any guarantee that voters will not be subject to coercion, intimidation, or other outside influences as they cast their ballots. [Emphasis added.]

While the union-controlled NLRB won't publicly admit its RFI and the implementation of off-site voting is designed to better aid unions by suppressing votes that may be against unionizing, the NLRB's recent actions leave little question.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Unionizing Doctors: SEIU already reaping rewards at having Craig Becker at the NLRB

The Service Employees International Union (SEIU) is already reaping the rewards of having its Associate General Counsel Craig Becker sitting on the union-controlled National Labor Relations Board (NLRB).

On June 3rd, the union-controlled NLRB issued a 2-1 decision denying a request for review (a form of appeal) by St. Barnabas Hospital regarding the unionization of its resident physicians.  The two board members were former-Teamster attorney (and current NLRB chairman) Wilma Liebman and SEIU's former associate general counsel Craig Becker.  The dissenter was the last remaining GOP appointee Peter Schaumber (whose term expires in August).

Legitimate and unanswered questions still remain about why the SEIU's Becker refuses to recuse himself on cases involving the SEIU, but the fact is, the SEIU's presence on the labor board is already reaping rewards for the purple behemoth.

Resident physicians at St. Barnabas Hospital voted overwhelmingly to form a union after a two-year fight. The National Labor Relations Board today announced a 119 to 2 vote in favor of the residents and interns of joining the Committee of Interns and Residents/SEIU Healthcare as their exclusive bargaining agent.

“St. Barnabas's frontline caregivers haven't had the voice they need to advocate for a better, safer hospital for themselves and the Bronx community,” said Eric Scherzer, Executive Director of CIR, in a statement. “With today's vote, they'll be able to work cooperatively with management to achieve their goals.”

But the hospital immediately said it may appeal an NLRB decision that allowed the vote to be counted.

A St. Barnabas spokesman also noted that just 121 of the 280 eligible residents chose to vote, but the union says that total is misleading. A total of 168 votes were cast; St. Barnabas challenged 47 of them because they belonged to residents leaving at the end of the month. CIR agreed to let the remaining 121 votes be counted first, while the the remaining challenged ballots would only be opened if the outcome was in question.

While the hospital is appealing the NLRB's refusal to review its case, the NLRB's current position (unless overturned by the courts) enables the SEIU (and other unions) to unionize resident physicians across the nation, adding tens of thousands of members (and millions of dollars) to the SEIU's rolls and treasury.

You didn't really think the SEIU pushed for nationalized health care for altruistic purposes, did you?
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

SEIU's Becker Wrongly Splits Hairs on Recusing Himself on SEIU's cases at NLRB

Earlier this week, we pointed out SEIU-attorney-turned-NLRB-member Craig Becker's seeming violation of his ethics pledge by ruling on a case involving the SEIU, in breach of the two year moratorium.

A mere five days later, in another case (ironically involving the SEIU again), Becker takes the chance to address his critics with thumb planted firmly on nose, stating that the reason he is (and, presumably, will continue) ruling on cases involving the SEIU is because SEIU locals are different from the SEIU international union.

...the Moving Parties ask that I recuse myself on the grounds that local labor organizations affiliated with the Service Employees International Union (SEIU) are parties to the cases. Prior to the commencement of my service on the Board, I was employed by and served as counsel to the SEIU. I resigned that position and ceased all such representation effective April 4, 2010, prior to being sworn in as a Member of the Board. Pursuant to the President’s Executive Order and Title 5 of the Code, I have pledged to recuse myself from all cases to which SEIU is a party for a period of 2 years subsequent to April 5, 2010. That pledge, however, does not require me to recuse myself from all cases in which local unions affiliated with the SEIU are parties.

SEIU is a separate and distinct legal entity from the many local labor organizations affiliated with SEIU. The courts have clearly distinguished local unions as autonomous entities separate and apart from international unions with which they are affiliated. [Emphasis added.]

A splitting of the hairs Absolutely.

Moreover, it's a faulty argument.  The SEIU has control over its locals and for Craig Becker to argue that they are separate and distinct is like stating that a parent has no responsibility for its child.

While it is true that the Service Employees International Union is a separate legal entity from its local unions, the international is, in fact the parent of those locals.

More importantly, the SEIU's own union constitution (in PDF) seems to contradict Mr. Becker's argument:

This organization shall be known as the Service Employees International Union, affiliated with Change to Win and the Canadian Labour Congress, and shall consist of an unlimited number of Local Unions chartered by it, and the membership thereof, and such affiliated bodies as may be established from time to time. [Article I, p. 3]

It appears there's not much distinction. Then, of course, there this:

Article III


JURISDICTION AND MEMBERSHIP

Section 1. The International Union shall be composed of and have jurisdiction over its affiliated bodies and all Local Unions composed of working men and women who are employed or engaged in any phase of private, nonprofit or public employment... [Article III, p. 4]

...and this...

The International President is empowered to construe the jurisdiction above defined to embrace all classifications of workers within any establishment anywhere in the world.


Section 2(a). The International Union shall have jurisdiction over the Local Unions and their members and over all affiliated bodies. 

and this [note the term with the approval of]:...

(c). With the approval of the International Union, Local Unions may establish different categories of membership and rates of dues for persons represented and not represented by the Local Union for collective bargaining purposes including, but not limited to, life members, retired members and associate members.

...and this certainly appears that the SEIU International President can "require and direct" local unions...

(f). Consistent with the programs and policies adopted by the SEIU Convention delegates, the International President shall be empowered to negotiate and enter into national, regional, or areawide collective bargaining agreements, including companywide or multi-employer agreements, and to coordinate activities toward this end in consultation with the Local Unions involved, and is authorized to require and direct coordinated bargaining among Local Unions. [Article VIII, p. 13]

...or this...

(h). The International President shall have authority to interpret this Constitution and Bylaws and decide on all points of law submitted to him or her by Local Unions or the membership thereof, or by affiliated bodies, subject to appeal to the International Executive Board, and the next Convention. [Article VIII, p. 14]

...and this...

Section 2. Any member or officer of a Local Union aggrieved by any action of his or her Local Union or affiliated body not covered by the provisions of Article XVII of this Constitution (including determinations of election protests) may petition the International President within 15 days after the act complained of, or may petition the International Executive Board, within 15 days after the action of the International President thereon, to review the action of the Local Union or affiliated body. [Article VIII, p. 14]

...or this...

Section 4. The International President shall sign all charters and other official documents of this International Union; shall have the authority to direct an examination of the books and records of any Local Union or affiliated body;... [Article VIII, p. 14]

...and, of course, this...

Section 7(a). Whenever the International President has reason to believe that, in order to protect the interests of the membership, it is necessary to appoint a Trustee for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of this International Union, he or she may appoint such Trustee to take charge and control of the affairs of a Local Union or of an affiliated body and such appointment shall have the effect of removing the officers of the Local Union or affiliated body. [Article VIII, p. 15]

...and the Trustees powers over a local?

(b). The Trustee shall be authorized and empowered to take full charge of the affairs of the Local Union or affiliated body and its related benefit funds, to remove any of its employees, agents and/or trustees of any funds selected by the Local Union or affiliated body and appoint such agents, employees or fund trustees during his or her trusteeship, and to take such other action as in his or her judgment is necessary for the preservation of the Local Union or affiliated body and for the protection of the interests of the membership.

Sounds like the SEIU is in charge of its locals, doesn't it?

Section 4. No Local Union shall have any right to pay any bills before it pays its full obligation to the International Union each month. [Article XIII, p. 24]

And, of course, the SEIU international constitution "governs" its locals...

Section 3. The Constitution and Bylaws of all Local Unions and affiliated bodies and amendments thereto must be submitted to the International Union and be approved before they become valid; provided, however, that notwithstanding such approval, the Constitution and Bylaws of all Local Unions and affiliated bodies shall at all times be subordinate to the Constitution and Bylaws of the International Union as it may be amended from time to time .... Regardless of approval, if any conflict should arise between the Constitution and Bylaws of a Local Union and affiliated bodies or any amendments thereto, and the Constitution and Bylaws of the International Union as it may be amended from time to time, the provisions of the Constitution and Bylaws of the International Union shall govern. [Article XV, p. 27]

So, while Mr. Becker may try to argue that the SEIU is different from its local unions, the truth is the SEIU exercise a lot of power over its locals, making the SEIU the parent to its children.

Either way, it's the same house!

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

He almost certainly broke his ethics pledge, but did the SEIU's Craig Becker break the LAW?

It's not like we're shocked (is anything involving unions really shocking anymore?)....

Still, it is pretty blatant for the SEIU's former assistant general counsel, Craig Becker, who is now sitting on the National Labor Relations Board to be issuing decisions on behalf of the SEIU.  Especially when Becker seems to be in clear breach of his signed ethics pledge where he pledged:

I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

So, after reading the above pledges (and presuming that it his signature on the pledge), it might be hard for him to explain this:

St. Barnabas Hospital and Committee of Interns and Residents, Local 1957, SEIU, Petitioner. Case 2–RC–23356

June 3, 2010

ORDER DENYING REVIEW

BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER

The National Labor Relations Board, by a three member panel, has carefully considered the Employer’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director directed an election among the Employer’s house staff. The Employer asserts, among other reasons, that the Regional Director should have considered the applicability of Brown University, 342 NLRB 483 (2004). We deny review.

Are you shocked?  If so, why?
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

EFCA may be "dead" in Congress, but unions are running the NLRB

According to U.S. Representative Phil Roe (R-TN), the job destroying and hallucinogenically-named Employee Free Choice Act is "dead" this year.

U.S. Rep. Phil Roe says legislation that would make it easier for unions to organize in the workplace is dead in Congress.


Roe, R-Tenn., recently told human resources professionals at the Kingsport’s MeadowView Marriott that the “Employee Free Choice Act” won’t come back up in this congressional session.


[snip]


“Unless the Senate acted on it, (House Speaker Nancy) Pelosi said she would not bring it to the House floor,” Roe told those attending a labor and employment seminar put on by the Kingsport-based Hunter, Smith and Davis law firm. “It won’t be back. ... You will not see that in this Congress. It’s deader than a doornail.”

While this is certainly good news (Scott Brown helped confirm this months ago), the other shoe is dropping over at the National Labor Relations Board, where unions control the government agency like a pitbull's jaws on a chihuahua's throat.

Since SEIU-appointee Craig Becker and union attorney Mark Pearce were seated alongside former Teamster attorney (and current NLRB Chairman) Wilma Liebman, the agency has become to unions what the KGB was to the Kremlin.  And, it's only going to get worse in the months and years ahead.

Already, the NLRB has begun using press releases to tout union "wins," while seemingly ignoring rulings against unions (like this one).

With the General Counsel, Republican-appointee Ron Meisberg resigning two months before his term expires and the last Republican-appointee leaving in August, the union-controlled NLRB will have carte blanche ability to run roughshod over America's union-free workers and their employers.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

BREAKING: NLRB's General Counsel resigns while Harkin tries to sneak Becker in the back door

NRLB General Counsel Announces Resignation

An anonymous source alerted us earlier that NLRB General Counsel Ronald Meisburg (bio here), today announced his resignation effective June 20 RATHER THAN SERVING OUT HIS TERM WHICH ENDS ON AUGUST 14....a mere 24 days.  He has accepted a position at the law firm, Proskauer Rose LLP.  This gives President Obama the ability to immediately nominate another union cronie to the NLRB as general counsel.

Harkin Tries to Sneak Becker Through the Back Door

In other NLRB-related news, last Thursday, Sen. Tom Harkins (D-IA) attempted to sneak recess-appointed, SEIUer Craig Becker onto a full term at the NLRB by attempting to move the Senate to unanimous consent on 80 Obama nominations (see Becker on page 9 of this PDF).  Harkin's move was blocked by Mitch McConnell (R-KY).


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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Another Union Payback: Obama Agency Makes it Easier to Unionize Airlines and Railroads

This takes a little background explanation:

The National Mediation Board (NMB) is a federal agency much like the National Labor Relations Board (NLRB) in that it governs labor relations in the private sector.  However, the NMB is strictly for the airline and railroad industries.  While the vast majority of private sector employers fall under the 1935 National Labor Relations Act, as amended ( which is administered and enforced by the NLRB), the airline and railroad industries fall under the 1926 Railway Labor Act (which is administered and enforced by the NMB).

As such, while the NMB is similar to the NLRB in that it is "independent," due to the ability of unions to affect interstate commerce in airline or railroad labor disputes, there are some key differences between how both laws are administered.  One of those key differences is how a union gets its tentacles into a company.

Under the NLRA, unions can target an individual site (or even a group within a particular workforce) to form a bargaining unit.   In other words, ABC Company can have one facility unionized and, across town, have a facility that is union-free.

However, the RLA is different.  Under the RLA, bargaining units are known as a the craft and class and must be unionized across an entire airline or railroad.  So, for example, an airline's passenger service agents in Los Angeles could not be unionized without the passenger service agents being unionized in New York as well.

Up until today, there were also differences in how unions got voted into companies.

The NLRB's long-standing practice has been a simple majority (50%+1) of those in a bargaining unit who actually vote must vote for unionization in order for a union to become the bargaining agent over the entire bargaining unit.  [For example: If, out of 100 employees, only 20 people vote and 11 vote for unionization, then all 100 are unionized.]

For the last 75 years, if a union targeted a craft and class at an airline or railroad and an election was schedule, in order to win, the union had to have at least 50% participation in the election.  There were no "No Union" votes.  If any eligible employee participated in the election (even if he or she wrote in 'Shrek' as their bargaining agent), that vote counted toward unionization.  Given that most airlines and railroads are either regional or national in scope, unions sometimes had a hard time covering all of the territory to ensure that they would get enough participation in the election process to get past the 50% threshold...That is, until today.

In a major victory for organized labor, unions will have an easier time signing up airline and railroad workers after the Obama administration Monday changed a 76-year-old rule on union elections.


The change is the most significant so far in a string of White House moves designed to boost unions, which are struggling to reverse years of decline in membership.


The new rule, announced by the three-member National Mediation Board, would recognize a union if a simple majority of workers who cast ballots approve organizing. The previous rule required a majority of the entire work force to favor unionizing. That meant workers choosing not to vote at all were effectively counted as "no" votes.


Airlines that fought the change say it will lead to more labor disputes that could disrupt commerce and increase delays in an industry already reeling from recession, higher fuel costs and stepped-up security measures.


The most immediate impact of the change would be at Delta Air Lines Inc., where unions are trying to organize about 20,000 flight attendants. Unions are also expected to target workers at smaller carriers, including Allegiant Air, JetBlue Airways, Republic Airways and SkyWest.


"We applaud the NMB for taking this historic and courageous step to bring democracy to union elections," said Patricia Friend, president of the Association of Flight Attendants-CWA.


But the Air Transport Association, which represents most major airlines, is expected to file a lawsuit challenging the new rule.


"It is quite clear to us that the NMB was determined to proceed despite the proposed rule's substantive and procedural flaws, leaving us no choice but to seek judicial review," the industry group said in a statement.


The rule will take effect 30 days after publication Tuesday in the Federal Register. The flight attendants' union said it would seek a representation election at Delta soon afterward. [Emphasis added.]

For those who may wonder why this rule change from majority of eligible votes cast to one of simple majority of votes cast is important, consider this:

If an airline has 5,000 employees in a craft and class and 2,000 of them work in hub cities like New York and Los Angeles, but the other 3,000 work in small regional airports, a union can easily concentrate its resources on the hub cities, ignore or capture just enough support at the regionals to ensure enough voters turn out to vote (voting is actually done via telephone or through mail ballot) and those who don't vote will become unionized.  If only 2,000 (out of 5,000) vote and 1,001 votes to unionize, all 5,000 become unionized.  It's much easier and cheaper for the unions this way.

Note: For those employees who live in Right-to-Work states who think: Well, so what if those people in New York and California unionize, it won't cost me anything.  That is not true either. Under the Railway Labor Act, there is no recognition of state Right-to-Work laws. This means that people who live in the 22 states with Right-to-Work laws, but work for an airline (or railroad), can be required to pay a union as a condition of employment. As in the example above, if 1,001 of 2,000 (out of 5,000 possible) vote to become unionized, all 5,000 could be required to pay the union as a condition of employment.

Since January 20, 2009, President Obama's union backers have been quietly getting their return on investment.  The NMB's issuing of the new rule is just the latest example.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.”Thomas Paine, December 23, 1776

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Cross-posted.

Former NLRB Member Cites Laundry List of Assaults on American Job Creators

Following the 2008 elections, when unions took over the White House and expanded their majorities in Congress, American business has become the cannon fodder for a hostile takeover from the union movement.

From the SEIU's Andy Stern developing the strategy for Democrats' health care enactment that 'changed America forever' to the current union push for 'financial reform' (and the reasons behind it), unions are using Congress and the Obama administration to declare 'open season' on America's job creators that continues despite the upcoming mid-term elections.

John Raudabaugh, an attorney with the law firm Peabody Nixon, is a former member of the National Labor Relations Board.  He has compiled a laundry list of assaults facing America's employers that are still on the agenda.  Below are just the highlights (for the in-depth list, go here):

• Executive Order 13494: For DoD, GSA & NASA contractors: "a proposed rule was announced to prohibit reimbursement to federal contractors for costs to persuade employees regarding unionization while allowing reimbursement of costs for shop stewards, labor management committees, employee publications, and related activities associated with employee relations. Comments from interested parties are due by June 14, 2010."
• Executive Order 13502:  Union-only Project Labor Agreements recommended on federal construction projects of $25 million or more.
• From the Department of Labor:  "The DOL’s Semiannual Regulatory Agenda published April 26, 2010, (75 Fed. Reg. 21824-21838) lists 117 rule actions under review, development, or completed during the past 6 months addressing a variety of issues..."
• From Congress:
• The “Paycheck Fairness Act” (S. 182; H.R. 12) 
• “Protecting America’s Workers Act” (S. 1580; H.R. 2067)
• The “Employment Non-Discrimination Act” (S. 1584; H.R. 3017)
• The “Employee Misclassification Prevention Act” (S. 3254; H.R. 5107) 
• The “Voluntary Protection Program Act” (S. 3257)
• The “Balancing Act of 2009” (H.R. 3047)
• The “Work-Life Balance Award Act” (H.R. 4855)

As stated above, these are just some of the "highlights" of what unions have on the docket.  For more information on these issues, go to Raudabaugh's full column here.

Note: If you are an attorney, an HR or LR practitioner and have an article that you feel LaborUnionReport.com's readers would benefit from, you can submit it here.  We welcome all tips, however, we do reserve the right to determine whether or not to publish articles, essays or other commentary.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

A Good Catch: NLRB footnote may signal things to come

One of the three components of the delusionally-dubbed Employee Free Choice Act (after card check and binding arbitration) is monetary fines.  Given that EFCA is currently stalled in Congress, there is well-founded speculation that, with a union-controlled National Labor Relations Board, the various components of EFCA could be pushed through by using the NLRB's rule-making authority.

Labor Relations Today, a cool new blog by some attorneys, has some interesting insight on one recent case that may be an indicator of where the NLRB may be heading with monetary penalties:

In San Juan Teachers Assn., 355 NLRB No. 28 (Apr. 30, 2010), without much discussion the Board affirmed the Administrative Law Judge’s finding that the employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by unilaterally reducing the hours of two unit employees. Regarding the remedy, the Board states in footnote 1:

In his exceptions and supporting brief, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary award. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Cardi Corp., 353 NLRB No. 97, slip op. at 1 fn. 2 (2009); Rogers Corp., 344 NLRB 504, 504 (2005). 

For years, General Counsel Ronald Meisburg has sought to add compound interest as a routine remedy available to the Board. In General Counsel Memorandum GC 07-07 (May 2, 2007), Meisburg declared simple interest “inadequate” as a “make whole” remedy, and directed all Regional Offices as follows:

…Regions should begin seeking quarterly compound interest in all future unfair labor practice cases where a monetary award is available.[] Regions should plead this remedy in their complaints and should include in their briefs to administrative law judges a model brief section containing standard arguments in support of this new position.

Even before this GC Memo, prior General Counsels had sought compound interest in Board cases. Each time, however, the Board has similarly declined to “deviate” from the practice of assessing simple interest.

While you can read the rest here, it is interesting to note that the issue of compound interest, while not a fine per se (as envisioned under EFCA), could substantially increase employer penalties for back pay and other forms of monetary awards.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Where is Craig Becker?

A reader sent us a note a few minutes ago with the subject line:  What is Craig Becker doing?

Becker sworn in two days BEFORE Pearce.  To date, 6 decisions have issued.  Pearce is on all 6; Becker on none.  So...is Becker doing heavy lifting on some more important case?

Now, that is an interesting question:   Where is Becker?

Has anyone seen him?

After all of the union hoopla and misleading talking points to get him seated on to the National Labor Relations Board, he's just sort of...disappeared.

Immediately, our thoughts turned toward the more sinister...

Perhaps Becker's in some back office at the NLRB rewriting the National Labor Relations Act for his union boss buddies?

Perhaps he is being kept on ice until after the November mid-term elections are over?

Or, perhaps, his union boss buddies have him preoccupied with something else?


When we find out, we'll let you know.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Our Take: New NLRB video goes too far in advocating for unionization

Perhaps it's all in the viewer's interpretation, but after watching the new video posted on the National Labor Relations Board website, it seems the NLRB is doing everything it can to push viewers toward unionization, as opposed to being just 'fair and balanced.'

While the video (which, unfortunately, can't be embedded here) does maintain some semblance of neutrality, the use of the 'employees' going to the NLRB to learn how to get a union takes away from the NLRB's overall sense of neutrality.

Had the NLRB used "employees" inquiring about unions or the election process in general, instead of seeking to get a union, the video might have more unbiased credibility.  It would have been easy to write the script that way and less objectionable.

However, given the amount of pro-union press releases issued by the Board lately, we suppose neutrality and credibility is more than can be expected.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

For more news and views on today’s unions, go to LaborUnionReport.com.

Despite Recess Appointment, White House Presses on for NLRB's Becker

Despite the unilateral recess appointment of SEIU radical Craig Becker to the National Labor Relations Board last month, the President is continuing to push the Becker issue by nominating Becker again for a full board seat:

The White House

Office of the Press Secretary

_________________________________________

For Immediate Release                         April 21, 2010

Presidential Nominations Sent to the Senate, 4/21/10

NOMINATIONS SENT TO THE SENATE:

Craig Becker, of Illinois, to be a Member of the National Labor Relations Board for the term of five years expiring December 16, 2014, vice Dennis P. Walsh, to which position he was appointed during the last recess of the Senate.

If at first you don't succeed...

hat-tip
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

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For more news and views on today’s unions, go to LaborUnionReport.com.

With or Without EFCA, a Union-Run NLRB Makes Business Jumpy

The job-destroying and hallucinogenically-named Employee Free Choice Act (EFCA) may have suffered a near-fatal blow with the election of Scott Brown to the Senate in February, but employers are not without concern regarding the impact that a union-friendly administration may have on their businesses.

Unfortunately, with unemployment high and businesses unwilling (or unable) to hire, if President Obama was trying to bring America back from the brink of economic disaster by creating a climate that is 'pro-business,' he sure missed the mark with last month's recess appointment of SEIU lawyer Craig Becker to the National Labor Relations Board.

To say the new union-run NLRB has the business community concerned is an understatement. As Politico reports:

Republicans and the business community have better-grounded reasons to worry about what will happen at the NLRB, which has a long history of overruling itself when the White House changes parties.

[snip]

Union leaders have sought, through the proposed Employee Free Choice Act, to create an alternative method to organizing that would allow workers to sign cards expressing their desire to join a union. Now that Becker is on the board, Isakson is working with colleagues to draft legislation that would make it a federal law — rather than a regulation — to require unions to hold organizing elections.

In an interview, NLRB Chairwoman Wilma Liebman said that at best, the NLRB could tinker around the edges of current organizing rules by expediting union elections. But even that would have to be done through a process called rulemaking, which the board hasn’t exercised in decades.

Liebman spooked the business community last year when she organized staff educational sessions on that process. She told POLITICO that she did that in anticipation of passage of the Employee Free Choice Act, after which the NLRB would be required to write implementation rules.

“Now, it doesn’t look like we will have a labor reform law passed,” she said, referring to the successful GOP filibuster of the legislation.

Still, Johnson is keeping the business community on edge by warning that the NLRB could try to act on its own, even though Liebman, a 12-year board veteran, says it can’t, and that, as chairwoman, she doesn’t intend to move in that direction.

“Rulemaking is not something you snap your fingers and you do. My recommendation is, if we try it, we stick our toe in the water with something small and discreet. Wholesale, radical, sweeping reform,” she said, “is quite unrealistic.”  [Emphasis added.]

Regardless of its smallness or its discreetness, the push to expand unions through regulatory fiat is something that, in this economic climate, causes many businesses to think twice about hiring.  As a result, any momentum an economic recovery could be getting is merely slowed.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

UPDATE: NLRB finds Operating Engineers Guilty of Unlawfully Fining Member $2500

In its second published ruling (PDF here) since it became legally staffed with a quorum, President Obama's National Labor Relations Board issued a decision finding the International Union of Operating Engineers violated the rights of IUOE member Mark Overton by fining him $2500 for reporting a safety violation.

The single issue in this case is whether the Respondent violated Section 8(b)(1)(A) of the Act by fining employee Mark Overton $2500 because, in compliance with the Charging Party Employer’s safety rules, which are incorporated by reference in the parties’ collective-bargaining agreement, Overton reported a safety violation by another employee to the Employer. The judge found the violation as alleged.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.

Read the rest here.

The decision was issued by members NLRB Chairman Liebman, as well as members Schaumber and Pearce.

For more on union fines, go here.

Cross-posted to the NLRB Scorecard.

UPDATE: Following the posting of this blogpost earlier this afternoon, the NLRB removed the aforementioned case from its website.  If the case is not republished in the next few days, we will remove this post.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

SCOTUS Asks a Question on NLRB Case Three Weeks Later?

Unusual?  It certainly appears so:

The Supreme Court on Friday afternoon ordered lawyers in a case argued March 23, testing the powers of the National Labor Relations Board, to file new briefs on the effect of new appointments to the Board.  The order, requiring briefs to be filed simultaneously on April 26, is here.  The case is New Process Steel v. NLRB (docket 08-1457).  The question at issue is spelled out here.  On March 29, Solicitor General Elena Kagan notified the Court that President Obama had made two appointments to the Board, but did not comment on the effect that might have on the case.  The case involves the Board’s authority to make decisions with only two members taking part; the Board’s full membership is set at five.

This may prove interesting.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

Craig Becker's New NLRB Page

Craig Becker's bio page is up on the NLRB's website.  There's no picture yet, but here's the text:

Craig Becker was sworn in as a Board Member on April 05, 2010, following his recess appointment by President Obama.

Craig Becker has served as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For 28 years, he practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.

With Andy Stern leaving the SEIU, all the photo albums must be getting one last teary-eyed look.
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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

NLRB issues complaint against UFCW: Union behemoth refused to recognize employees' right to quit union

The United Food & Commercial Workers, the mega-union that represents grocery workers in many states, has refused to recognize employees' right to quit the union, according to a complaint issued by the National Labor Relations Board.

Fry's Food Stores of Arizona and the United Food & Commercial Workers Union Local 99 violated labor laws by refusing to recognize an employee group's efforts to quit the union, according to a complaint issued March 31 by the National Labor Relations Board.

The ruling could make it easier for some 30,000 UFCW members in Arizona to quit the union.

Union spokeswoman Ellen Anreder said the UFCW plans to fight the complaint. A Fry's representative did not return calls seeking comment.

The action stems from unfair-labor-practices charges filed in December by the National Right to Work Foundation on behalf of seven Fry's employees. The charges allege that the workers resigned their union memberships in writing at various times in fall 2009, as the organization was preparing to strike against grocers Fry's and Safeway.

The union refused to acknowledge the resignations and continued to collect dues, which were deducted from the workers' paychecks by Fry's, despite written notices rescinding the authorization, the charges state.

We've written before of the UFCW in Arizona, including its attacks on Arizona-based grocer Basha's.

For more information on the United Food & Commercial Workers, go here.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

A Hollywood Republican: Craig Becker Is Now the Deciding Vote on the NLRB

Though we did not realize there was such a think as a "Hollywood Republican," apparently there is at least one and he happened to write a great post about President Obama's unilateral appointment last weekend of SEIU strong-man Craig Becker to the National Labor Relations Board in which he closes with this:

I don't think I'm disturbed as much about Craig Becker as I am about Obama. Becker is a hired gun paid to represent very powerful union bosses. I understand that he believes he should do whatever it takes to push his agenda on behalf of his clients, just as any lawyer would. No, I'm much more concerned about Obama. The American people did not elect a President to exclusively represent union interests. They did not elect Obama to create a fourth branch of government called SEIU. It's been two months since the State of the Union address in which Obama proclaimed "that's why we've excluded lobbyists from policymaking jobs". Does Obama really think that the American people have a memory of less than 8 weeks? Unbelievable.

You can read the rest of a Hollywood Republican's post here.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

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Recuse Thyself, Mr. Becker...

This is rich, too rich...

On the SEIU's Craig "Demon Pass" Becker's potential conflicts of interest, the battle is beginning.

From the Wall Street Journal:

No sooner did President Barack Obama exercise his recess-appointment powers to put labor lawyer Craig Becker into a seat at the National Labor Relations Board than a group that has challenged unions said it will ask Becker to recuse himself from 12 pending cases before the board.

The National Right to Work Legal Defense Foundation said Becker, who has served as counsel for the Service Employees International Union and the AFL-CIO, should not hear cases in which the foundation is providing legal aid to workers, because Becker directly opposed the group while serving as counsel for the SEIU and because his prior writings demonstrate a bias against the group.

“We just don’t think he’s going to be able to impartially adjudicate cases involving the Foundation’s attorneys,” said Nick Cote, a spokesman for the group. He cited several writings, including a 2005 article that Becker co-wrote in the Berkeley Journal of Employment and Labor Law in which the foundation is referred to as “funded by the most anti-union fringe of the employer community.” [Emphasis added.]

Given that Becker worked for the SEIU and the AFL-CIO (a federation that consists of 57-individual unions), as well as the fact that Becker is the only known NLRB member to have gone straight from union hack advocate to the NLRB, we are hard-pressed to see where there is not a conflict of interest involving any case that has one of his union bosses as a party.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Follow LaborUnionReport on Twitter.

For more news and views on today’s unions, go to LaborUnionReport.com.

Cross-posted.

Image Credit: Labor Pains