U.S. CHAMBER OF COMMERCE 100 Years - Standing Up for American Enterprise

Tilting the Playing FieldSignificant Developments in U.S. Labor Law

WORKFORCE FREEDOM INITIATIVEU.S. CHAMBER OF COMMERCE

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Union Challenges Declining Membership

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Union Challenges

Declining Private Sector Membership

U.S. CHAMBER OF COMMERCE 100 Years - Standing Up for American Enterprise

2008 Elections: Unions spent $450 million on political activity.

2012 Elections:• Unions reportedly spent $400 million.• Spent additional $100 million on two ballot initiatives.• AFL-CIO established their own “Super PAC.”• The AFL-CIO made 80 million phone calls, knocked on 14

million doors, sent 75 million pieces of mail.• Registered 450,000 new union members to vote.• 65% of union members nationwide voted for Obama. In

Ohio, this rose to 70%.• This does not include activities by unions outside the AFL-

CIO, such as SEIU and the Teamsters.

Union Political Activity

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The head of the National Nurses Union said that unions “played an essential role in reelecting President Obama,” and the Congress and the President now need to “stand with the people

who elected them…”

Union Political Activity

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2007-2010: Unions look to Congress for changes to labor law. Push for the Employee Free Choice Act.

Post-EFCA: Unions look to regulatory agencies.• The National Labor Relations Board (NLRB)• The Department of Labor (DOL)• The National Mediation Board (railroads and airlines)

Goals:• Limit employers’ ability to contest organizing

campaigns.• Lower the bar for union organizing.

Legislative Change vs. Regulatory Change

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The NLRB Five member agency charged with conducting

union elections, ruling on disputes between unions and employers.

Board currently at three members, all Democrats. Two Democratic members were given dubious

recess appointments. Currently being challenged in court by the U.S. Chamber and others.

Recess appointees terms expire when Congress adjourns at the end of 2013. Chairman Pearce’s term expires in August.

If Board falls below three members, it loses its quorum.

NLRB also has a general counsel, currently held by “acting” GC since Senate has not confirmed. Serving indefinitely under the Vacancies Act.

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The NLRB

The NLRB sets policy in three ways:• Rulemaking: posting notice,

expedited elections.• Case decisions: Specialty

Healthcare, Panera Bread, DR Horton, Supply Technologies, Costco, Parexel, Banner Health Care, Piedmont Gardens.

• Enforcement directives and litigation: Boeing case, social media policies, concerted activity.

Employers concerned the NLRB is overstepping its authority, reversing long-established precedent, acting as an agent of union interests rather than neutral arbiter.

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NLRB Rulemaking

Posting Notice• Board issued a rule requiring employers to post

notices of union rights. Poster gave little emphasis to workers’ rights to opt out of union activity.

• US Chamber sued, judge blocked the rule.

• Federal contractors must still post OFCCP notice.

Expedited Elections• Board issued a rule to reduce time for union

elections. Could cut campaign period from 38 to 10 days.

• US Chamber sued, rule overturned on technical grounds.

• Board can simply reissue rule with three votes.

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Anticipated NLRB Rules Expedited Elections

• Board likely to re-propose expedited election rule.

Expedited Elections Part II• Additional measures to speed up elections.

• Requirement to turn over to union organizers workers’ home phone numbers and personal e-mail addresses.

Cyber Card Check• Proposal to institute off-site electronic voting.

Could depress turnout, expose workers to intimidation.

• Congress blocks the rule through appropriations rider.

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NLRB Case Decisions Specialty Healthcare, Panera Bread

• Unions can organize very small groups of workers — mini-unions.

• Bargaining units now recognized based on the extent to which unions have already recruited workers.

DR Horton, Supply Technologies• Prohibits arbitration agreements that preclude class

actions.

• Could allow class actions in the arbitration setting.

• Arbitration agreements must specifically mention NLRB remedies.

Concerted Activity• Numerous employer policies on confidentiality,

social media found illegal (Costco, Banner Health Care, Piedmont Gardens).

• Possibility that an employee might engage in concerted activity can result in an unfair labor practice charge (Parexel).

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Potential NLRB Case Decisions

Union Access• Employer cannot deny unions access to employer

property if access given to other groups (girl scouts, Red Cross, etc.).

• Board may rule that unions gain access to employer e-mail systems.

Supervisors• Board may overturn previous ruling that broadened

definition of supervisor.

• Restricting number of supervisors broadens the pool of workers eligible to unionize, reduces assets employers can deploy during organizing campaign.

Employee Meetings• In a dissent in the 2 Sisters case, former NLRB Member

Craig Becker argued that mandatory staff meetings are inherently coercive.

• Board may look for a case to make such meetings illegal.

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General Counsel Enforcement

Boeing• Boeing opens new plant in South Carolina. Union in

Washington state files complaint.

• NLRB sues Boeing, claiming that SC plant meant to retaliate against the union. Seeks to force Boeing to move work to Washington state.

• NLRB drops case when union and Boeing reach new contract.

Social Media• General Counsel looking at employer policies on workers’

use of social media (facebook, twitter, etc.).

• GC finding many policies overly broad, impede Section 7 rights.

Concerted Activity• Taking broad view of what may restrict concerted activity.

Combing through employee handbooks.

• Even policies encouraging workers to be courteous to each other and to customers being read as impeding Section 7 rights.

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Department of LaborPersuader Regulations• Will limit “advice” exemption.• No attorney-client privilege.• CEO may be liable for failure to file

reports.• Will deter employers from engaging

during union campaigns.Increased Enforcement• Soften up employers for organizing

campaigns.• “Shaming” employers, emphasis on

criminal prosecution.• Alliances with pro-union groups.• Crackdown on independent contractors.

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Other IssuesHigh Road Contracting• Could be done by Executive Order.• Add “labor standards” to scoring bids for government

contracts.• “Labor standards” could include paying a living wage,

providing health and pension benefits and providing paid sick leave.

• These benefits would have to be provided to firm’s entire workforce, not just those working on a contract.

• Card check and neutrality to be added?Unionization as a Civil Right• Add the “right to organize a labor union” under Title VII

of the Civil Rights Act.• Complaints could quickly move from the NLRB to Federal

Court.• Would allow for compensatory and punitive damages,

attorney fees, discovery, jury trials.

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What We Can Do• Get educated on the issues

– www.WorkforceFreedom.com & www.USChamber.com

• Take Action - Contact your Members of Congress and urge them to Support Good Legislation via www.WorkforceFreedom.com portal:

• Visit Congressional district offices and Town Hall Meetings.

• Ask Candidates Where They Stand.

• Submit comments on regulations.

• Stay involved with your state and local chamber and the U.S. Chamber.

U.S. CHAMBER OF COMMERCE 100 Years - Standing Up for American Enterprise

WORKFORCE FREEDOM INITIATIVE

U.S. CHAMBER OF COMMERCE