Noel Canning ruling a setback for Obama and NLRB

Efforts by the Obama administration to pursue an aggressive pro-union agenda via the National Labor Relations Board (NLRB) suffered a major setback earlier today. A three-judge federal appeals court in the Noel Canning case unanimously found that recent recess appointments of NLRB board members violated the Constitution, ruling that "Because none of the three appointments were valid, the Board lacked a quorum and its decision must be vacated."

If today's ruling is upheld by the Supreme Court, to which the Obama administration is expected to appeal the case, it would be a long-awaited victory for Republicans and business organizations who have long objected to the Board's growing reach into non-union workplaces and increasingly pro-union rulings. It would also be vindication for Senate Republicans who have sought to check the administration's political agenda via the confirmation process which the recess appointments bypassed.

In the case, attorneys for Noel Canning, a Washington State canning and bottling company, argued that NLRB seats were filled in violation of the Constitution, Article II, Section 2, Clause 3, which allows Presidents to fill posts by recess appointments only when the Senate is in recess. Their position was that because the Senate was still meeting in pro forma session when the Obama administration filled vacant NLRB seats via recess appointments, three of five seats were improperly appointed. This would mean the Board would not have a legitimate quorum of at least three members and would therefore have no power to make rulings such as the one which Noel Canning appealed. The three Board members whose appointments were challenged by the suit were:

NLRB overturns major precedent regarding union dues

Even though recent right-to-work decisions in Indiana and Michigan present the potential for large numbers of workers to opt out of paying union dues as a condition of employment, a recent ruling by the National Labor Relations Board will allow unions another avenue to collect union dues.

Issuing a ruling in WKYC-TV, Gannet Co., Inc., the Board ruled that even when a union agreement expires, employers should still collect union dues from employees' paychecks. This goes against a long-standing precedent which dates back fifty years, which allowed employers to stop collecting union dues when a collective bargaining agreement ends.

This ruling will give labor unions another incentive to drag out contract negotiations and less incentive to negotiate in good faith with employers. But prolonged labor contract negotiations do come with a risk to workers, as evidenced by the decision of Boeing to open a production facility in South Carolina and the decision to close Wonder Bread. But as union dues are the lifeblood for organized labor, which has seen it's numbers continue to decline in recent years, this kind of ruling is one that means they can keep collecting money, even when they're not delivering results for their members.

An article on the Employment Law Daily website discussed the Bethlehem ruling:

In Bethlehem Steel, the NLRB, relying on the proviso to Sec. 8(a)(3) that “nothing in this Act shall preclude an employer from making an agreement with a labor organization to require as a condition of employment membership therein,” held that an employer acted lawfully in unilaterally ceasing to honor a contractual union security clause.

The Board ruled that this new opinion would only apply to future cases.

Unions busted for union-busting - yes, really

This is pretty funny stuff. Unions getting busted for trying to bust union organization efforts by the NLRB:

It was just a few months ago when Obama’s National Labor Relations Board ruled that the International Brotherhood of Teamsters union had engaged in union busting and ordered the union to stop harassing its own union organizers for wanting their own union.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkersand–again, the Obama labor board is having none of it.

The Teamsters even hired lawyers and even appealed losing their case - but ultimately lost.

You can't make stuff like this up.

Senator Tim Scott: Major NLRB critic moves to the Senate

If there's anything one can be sure of about the appointment of South Carolina Congressman Tim Scott to replace Jim DeMint, who is resigning from the Senate to lead the Heritage Foundation, is that he's not going to be any friendlier to the National Labor Relations Board (NLRB) or organized labor than DeMint was.

If anything, Scott's record in the House suggests he'll be even more vocal on these issues than DeMint. WScott sponsored three bills in the last session of the House related to the NLRB and union activity in workplaces:

• H.R. 1976 and 2587, both sponsored by Scott, would bar the NLRB from directing companies to close or move plants or jobs.
• H.R. 2810 - The “Employee Rights Act”, would require the use of secret balloting to unionize a workplace and require a renewal vote every three years. It would also set guidelines on how these elections are to be conducted.

While in the House, Scott received very low scores on scorecards issued by three labor unions:

• AFL-CIO: Voted with them on just one out of 20 votes in 2012 and received a zero score in 2011.
• AFSCME: Zero score
• SEIU: Voted against their position on 8 out of 9 bills, no score assigned

With the direct impact of the NLRB being felt in South Carolina, where it moved to try to block Boeing's expansion in Charleston, as well as threatened to block the state from enacting legislation to codify the 2010 referendum allowing workers to decide workplace issues via secret ballot, it's not likely that Scott will back off his stance when he crosses over to the Senate next month.

Labor unions shut down Hostess, no more Twinkies

If you're looking for Twinkies or Ding-Dongs on your grocery shelf in the near future, you can forget it - and you can thank labor unions for making it happen.

Struggling to get out of bankruptcy, Hostess - the maker of snack foods like Twinkies, Ding-Dongs and Wonder Bread - announced the decision to close the company after negotiations over wage and benefits packages broke down and labor unions went on strike.

A news release posted on the company's strike information website explained the issues that factored into the decision to close the company, which had been in business for nearly a century:

Low turnout greets union meeting for Boeing workers in Charleston

Some might say that having 75 to 100 people turn out at a meeting to introduce Boeing employees to the International Association of Machinists labor union is a sign of progress.

That is unless you consider that the number of those who attended the meeting was a mere 1.3 to 1.6 percent of the company's Lowcountry workforce of 6,100 - far short of the number needed to organize the facility and not much more than the number who voted in favor of blocking the decertification of the facility when just several hundred worked there three years ago (a vote the IAM lost in a 68-199 vote).

But for all we know, they may have just attended for free food and drinks.

In any event, in spite of the very low turnout for the meeting, which followed a mailing to Boeing employees, the union plans to hold more meetings in the future to attempt to get back into the facility. Given the nastiness that erupted last year over Boeing's decision to open the plant in Charleston and the presence of the union in Boeing plants elsewhere, it seems likely they'll be back.

IAM & Boeing: When "No" doesn't really mean no

Having been booted from the Charleston Boeing facility, and then losing a major NLRB battle to keep the plant from opening, the International Association of Machinists and Aerospace Workers labor union is back in Charleston, trying to get into the facility that didn't want them.

The Charleston Regional Business Journal is reporting that the union did a mass mailing to Boeing workers to invite them to a Question-and-Answer session being held in the Lowcountry next week.

Obviously they don't think that "no" really means "no".

Don't let these guys take your daughter on a date.

Employee handbook rulings expand NLRB's reach into non-union workplaces

Employers who think that having a union-free workplace will protect them from National Labor Relations Board (NLRB) actions should think again. The federal labor agency has been broadening its reach into examining employer practices in non-union workplaces with no union activity taking place.

One area which is drawing increased scrutiny from the NLRB is the content of employee handbooks, as indicated by recent rulings issued by the board (Banner Estrella Medical Center, 358 NLRB No. 93, Hyundai America Shipping Agency Inc. 357 NLRB No. 80 and Karl Knauz Motors, 358 NLRB No. 164).

Unless the November elections result in a shake-up of the Board, employers and HR staff responsible for writing and maintaining the content of employee handbooks may want to scrutinize these documents for potential troublespots.

Stalking and violence - legal for labor unions

It's well-known that labor disputes can result in violence against persons and property in workplaces in the United States. But what isn't as well known is that in some cases, the courts and the laws are giving labor unions license to harm and harass companies and workers, according to a report issued by the U.S. Chamber of Commerce's Workforce Freedom Initiative.

Entitled "Sabotage, Stalking and Stealth Exemptions: Special State Laws for Labor Unions", the report looks at how both courts and some states have turned a blind eye to threatening and dangerous behaviors, going against the growing concerns over combating violence and threatening behaviors in the American workplace.

The report begins by tracing the history of state exemptions to a 1973 ruling by the U.S. Supreme Court (United States v. Enmons, 410 U.S. 396) which held that ruled that violence in pursuit of union demands cannot be prosecuted under federal law, arguing that violent activities, when used during a strike by workers of the Gulf States Utilities Company, did not meet the standard of "wrongful" conduct needed to convict in a federal extortion case. From there, a number of states are called out for giving unions a pass on threatening and violent conduct in workplaces.

Unions and NLRB still pushing over Poster issue

While court rulings earlier this year put the National Labor Relations Board's (NLRB) workplace poster mandate on ice, an appeal of the National Association of Manufacturers ruling is expected to be heard in the D.C. District Court of Appeals in September. Since these rulings were issued, a number of actions taken in support of the policy both by the agency and those in support of the rule, presenting new challenges for employers and those seeking to curtail the ability of the agency to act as an advocate for labor unions.

The poster rule suffered two setbacks from rulings which barred the agency from mandating employers post a notice that was considered by many to be free advertising for labor unions. In National Association of Manufacturers v. NLRB and Chamber of Commerce v. NLRB, federal courts in Washington D.C. and South Carolina both ruled the agency could not require employers to post such notices. 

Earlier this month, a Friend-of-the-Court brief filed by the AFL-CIO, Change to Win, and Professor Charles Morris, a retired professor from the Dedman School of Law at Southern Methodist University in Dallas sought to support the NLRB's push for the employer mandate, arguing the poster and other notification processes were within the scope of the agency's authority and were essential to it's ability to help workers who sought to organize unions in their workplaces. In the brief, they warn that "as union density has declined, the need for workers to have an independent source of information about their rights has never been greater".

Supreme Court reins in union political fundraising - again

A ruling by the Supreme Court last week continues years of rulings by the Court which have reined in the ability of labor unions to collect funds for political activities from workers. Last week's ruling in the case of Knox v. Service Employees International Union, Local 1000 continues that trend, calling into question a union practice of collecting the money from workers for political activities. 

In the Knox ruling, the Court held that the method used by the service employees' union to collect special fees for campaigning against two referendum questions in California in 2005 violated those workers First Amendment free speech rights. The court issued two rulings on separate issues in the lawsuit: 

• In a 7-2 ruling, the court concluded that the union did not give proper notice to non-union members before making the deductions.
  
  
• In a 5-4 ruling, the court ruled that the method used by the union to allow non-union members in the state's "agency shop" workplaces to "opt out" of such special fees was insufficient to protect their First Amendment rights, ruling that non-members should be sent a notice giving them the chance to "opt in" to the special fees.

The case was initiated by eight California civil servants in response to a 2005 "special assessment" imposed by SEIU officials to raise money to campaign against four ballot proposals, including one that would have revoked public employee unions' special privilege of using forced fees for politics unless an employee consents. The plaintiffs argued that employees who refrained from union membership who were forced to pay union dues as part of the state's agency shop workplaces were given no chance to opt out of paying the SEIU's political assessments.

Foreign automakers keeping UAW out of plants

While labor unions have done well at organizing work forces at United States-based automakers, they've struggled to get into foreign automaker facilities in the United States. According to a recent MSNBC story:

While the UAW continues to represent Detroit’s Big Three manufacturers, it has all but completely failed to gain representation rights for the so-called transplant lines now run by virtually all the major foreign-owned automakers, from BMW to Toyota to Volkswagen.

UAW president Bob King sees these efforts as crucial to the survival of the labor union, warning "If we don't organize these transnationals, I don't think there's a long-term future for the UAW, I really don't". Last year, it was reported the UAW was considering going after Volkswagen and Daimler plants and now is reportedly looking at attempting to organize a Nissan plant in Mississippi. But the track record of organizing these companies plants isn't good.

Major union effort in SC Midlands fails

In one of the largest efforts in recent years by labor unions to organize a South Carolina workplace, workers handily rejected an effort by union organizers to organize workers at the Intertape Polymer Group plant in Columbia

The union lost the vote with 142 employees voting against the union, 97 voting for the union and 3 challenged votes. This rejection is another moment in what has been a long and contentious relationship between the company and the United Steelworkers Union. 

In watching labor union activity in South Carolina in recent years, union organizers have typically sought to score easy wins by focusing on small employers, usually with less than fifty workers, and overwhelm them. While some of these efforts succeeded, larger efforts, such as this one and the effort to organize the first Charleston Boeing plant, have gone badly for labor unions in recent years.

Federal court strikes down NLRB poster rule

In a setback to NLRB efforts, a federal court overturned the labor agency's notice posting rule.  Ruling in the case Chamber of Commerce of the United States v. NLRB, the court found the agency "exceeded its authority in violation of the Administrative Procedures Act", blocking the agency from requiring employers to posters which would have served as advertising for labor unions in the workplace.

According to Gray Geddie, Ogletree Deakins’ former chairman and the attorney who argued the case, "the court preserved the role of the NLRB as a quasi-judicial arbiter of employee rights, rather than an advocate for unions and unionization".

It still remains to be seen if the federal agency will now delay implementation of the notice posting rule until appeals are resolved, or whether the plaintiffs will be forced to apply to the court for a permanent injunction to prohibit enforcement of the rule on a nationwide basis.