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.

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.

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.

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

Follow LaborUnionReport on Twitter.

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.
__________________

“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.

Introducing the NLRB Scorecard

As the union-controlled National Labor Relations Board kicks into high gear following the unilateral recess appointments of SEIU Assoc. General Counsel Craig Becker and union attorney Mark Pearce, we're going to start keeping score.

Were calling this the NLRB Scorecard and have set up a separate page (here) on our blog to update on a regular basis.

The NLRB Scorecard will be an unofficial tally keeper, keeping count of the number of cases the union-board hands to unions, as opposed to providing unbiased rulings for either employees and employers.

Hopefully, through doing this, our prediction that the union-controlled NLRB is now merely a tool of union bosses will be proven wrong...though we doubt it.
__________________

“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.