CDW Update

CDW Members:

The National Labor Relations Board and Department of Labor have been busy this week on several initiatives designed to promote the EFCA Agenda, and we wanted to update you on these important developments as well as some changes at CDW.

· NLRB Issues Proposed Rule on Posting Requirement On December 20, the NLRB released a Notice of Proposed Rulemaking (NPRM), which would require employers subject to the National Labor Relations Act (NLRA) to post a notice in the workplace informing employees of their rights under the NLRA.

Under the NPRM, employers would face various sanctions for failing to post the notice, including (1) being charged with unfair labor practice; (2) having the time limits for filing of other unfair labor practice charges against the employer extended; and (3) having the Board consider the failure to post the notice as evidence of unlawful motive in other unfair labor practice cases. The NPRM and the NLRB's fact sheet are available on the Board’s website and will be published in the December 21 Federal Register. President Obama issued an Executive Order in 2009 that required government contractors display such a poster. NLRB will use the same language as in the DOL poster, a copy of which is available here.

Board Member Brian Hayes (R) filed a dissent to the rulemaking, asserting “the Board lacks the statutory authority to promulgate or enforce,” the NPRM. The Board will take comments on the NPRM for 60 days.

· NLRB Announces Increased Enforcement Initiative On December 20, the NLRB Acting General Counsel issued a memorandum announcing a new enforcement policy against employers accused of unlawful conduct during union organizing campaigns.

The memorandum instructs regional NLRB attorneys to seek the following remedies in those situations: (1) that a management official from the company read or be present when Board official reads a notice announcing that the company violated the employees right to organize and the will not do so again in the future; and (2) grant the union access to the company bulletin board or electronic equivalent, including email or intranet, and a list of employee names and address to facilitate union communication with employees.

The memo also states that in cases where the regional attorneys find the employers' conduct had a particularly severe impact, the regional attorney may look to pursue additional remedies, including: "granting a union access to non-work areas during employees’ non-work time; giving a union notice of, and equal time and facilities for the union to respond to, any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election."

The new policy would expand the use of what have been traditionally extraordinary or exceptional remedies and, in some cases, introduces new remedies by stretching existing precedent. This builds upon the Acting General Counsel's September 30 Memorandum announcing the Board would be pursuing more injunctions in cases where it believes the employer violated the law during an organizing campaign. CDW will be monitoring the NLRB’s new policy and keep members apprised of further developments.

· CDW Sign on Brief in Roundy’s Next week, we will be circulating a draft and asking for groups to sign on to CDW’s brief in Roundy’s Inc. and Milwaukee Building and Construction Trade Council. At issue in the case is the extent to which an employer may deny non-employee union organizers access to the workplace, where the employer has allowed access to other non-employee individuals or groups, such as the United Way. It appears the Board may be looking at both physical access and electronic access via email, intranets, etc.

As you may remember, several of the "EFCA-lite" proposals, such as the one offered by soon-to-be-former Representative Sestak, would have provided unions with greater access to employer work sites. CDW argued against these proposals, rightfully claiming they would have violated employer property rights and allowed the non-employees to disrupt the workplace.

· DOL Releases its Semi-Annual Regulatory Agenda On December 20, DOL released its semi-annual regulatory Agenda, which provides some indication as to when DOL plans to publish proposed and final rules.

While many of the proposals are concerning, one particularly troubling to CDW members may be the Office of Labor-Management Standards plans to issue a proposed rule in June 2011 revising reporting requirements for costs related to employer communications to employees during organizing drives. Under current law, employers and consultants are not required to report activities classified as advice. DOL has said it intends to narrow the advice exemption.

A Change in CDW Leadership Lastly, I wanted to let you know that my tenure at the helm of CDW is coming to an end. On January 3, I’ll begin my new job as coalitions director for Kevin McCarthy, the House Republican Whip.

Geoff Burr, Vice President of Federal Affairs at Associated Builders and Contractors has stepped up and graciously offered to lead CDW; therefore, I am handing the keys over to Geoff so that the coalition can continue its important work in leading the employer community’s fight against the EFCA agenda.

Geoff is cc’d on this email, and all future CDW-related business should be taken up with him.

On a personal note, I’d like to thank everyone for their strong support of CDW, and activism in the fight to defeat EFCA. It has been a great opportunity to be part of such a successful coalition effort, and I hope I have the chance to work with you in the future.

Thanks,
Brian Worth

News Highlights

November 11, 2010 News Highlights

Top News:

WSJ: Labor Board's Recent Decisions Tilt in Favor of Unions

Nov 11, 2010

Unions are increasingly looking to the National Labor Relations Board to seek favorable workplace rulings, and the agency is showing a willingness to reopen matters previously decided in favor of employers.

Union leaders pushed earlier this year to get two new Democratic members on the labor-relations board, saying they needed to level the playing field with employers after years of decisions by the Republican-controlled board that unions said hampered their efforts to organize workers.

http://online.wsj.com/article/SB10001424052748704804504575606872095817474.html

CDW in the News:

Legislators, take note: Voters cross-check card check

By Brian Worth

Nov 10, 2010

The card check fight was also emblematic of larger concerns. According to a Coalition for a Democratic Workplace national poll conducted by WomanTrend and surveying those casting ballots on election day, Americans want big government and big labor to stop blocking job creation.

http://thehill.com/blogs/congress-blog/labor/128605-legislators-take-note-voters-cross-check-card-check

News of Note:

Union Card Checkmate

Wall Street Journal

Nov 9, 2010

Four states—Arizona, South Carolina, South Dakota and Utah—voted on "save our secret ballot" measures that would require secret elections and effectively outlaw card check as a means to certify a union. In Arizona and Utah the measures passed with 60% of the vote. In South Dakota the margin of victory was 79% and in South Carolina it was 86%.

http://online.wsj.com/article/SB10001424052748704353504575596790376536822.html

Card check, RIP

Las Vegas Review-Journal

Nov 5, 2010

The GOP takeover of the House -- not to mention the national repudiation of the Obama agenda undergirding Tuesday's election results -- means that "card check" is dead for now in Congress.

http://www.lvrj.com/opinion/card-check--rip-106751328.html

NLRB News:

The Fine Line Between Student and Employee

The Cornell Daily Sun

Nov 11, 2010

Last week's decision by the National Labor Relations Board to reconsider its position on allowing graduate student unionization awakened parties on both sides of an old debate: Should graduate students be considered employees, students or some gray area in between the two? Obviously, there is no easy answer, but the NLRB’s ruling will have a dramatic impact on every university.

http://www.cornellsun.com/section/opinion/content/2010/11/11/fine-line-between-student-and-employee

NYT: Company Accused of Firing Over Facebook Post

By STEVEN GREENHOUSE

Nov 8, 2010

In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page.

http://www.nytimes.com/2010/11/09/business/09facebook.html

George Will: 2010 a banner year for conservatives

Nov 11, 2010

Unionized public employees outnumber unionized private-sector workers, so unions desperately desire "card check" legislation. It would make it easier to herd private-sector workers into unions by abolishing the right to secret ballots in unionization votes. The 2010 elections made "card check" as dead as government subsidies for broadcast journalism may soon be.

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/10/AR2010111005499.html

Card Checkmate - WSJ Article

Card Checkmate

Voters in four states head to the polls to preserve honest union elections.

Big Labor's dream to end secret ballots in union organizing elections has faded in the 111th Congress, but now the battle turns to the states. Citizens in Arizona, South Carolina, South Dakota and Utah will vote on November 2 on ballot initiatives to block union "card check" elections in their states. Click here to read the entire article.

WSJ Article: Back Door Card Check

Back Door Card Check

Big Labor's man at the NLRB tries to rewrite labor law by fiat.

As Big Labor has realized it won't get "card check" legislation through Congress, it is turning to its secret weapon inside the Obama Administration—labor lawyer Craig Becker. And as many Senators feared when he was nominated, Mr. Becker is using his position on the National Labor Relations Board to bypass the will of Congress.... Read the entire article by clicking here.

Good News, Bad News

CDW Members:

As Congress returns for a brief legislative session, President Barack Obama gave us some good news and some bad news.

First, he stated, regarding EFCA, "The opportunity to get this passed right now is not real high."

While that may be good (if not obvious) news to hear from the president, he followed that up by noting that the principles of card-check organizing could be achieved without passing legislation. According to The Hill, “the president also pivoted to note that many of the problems in organizing rules that EFCA sought to address might be fixed through administrative action.”

You can read the entire story here.

As noted in our last CDW Update, the National Labor Relations Board (NLRB) has already begun its move to circumvent the legislative process and force the principles of EFCA on employees and employers via federal regulation. To read more about the Board’s recent rulings, click here.

CDW will continue to monitor the actions of the NLRB and other federal agencies, and keep you informed about any efforts to use the regulatory process to enact Big Labor’s EFCA-focused agenda.

Thanks,

Brian

Key NLRB Decisions Threaten Employee Rights

CDW Members:

With card-check legislation on its death bed, we have talked about the likelihood that Big Labor would turn towards the federal regulatory process in order to achieve the objectives they hoped to gain through the Employee Free Choice Act.

As we feared when President Obama placed former SEIU lawyer Craig Becker on the NLRB via recess appointment, EFCA supporters are trying to jam their agenda through the Board. This week, Becker and the Obama Board announced two decisions that attack workplace democracy.

In the first, (Right Aid Store #6473) the Obama Board announced that they will revisit the 2007 Dana Corp. decision, which provided important protections to employees facing so called "voluntary" card check agreements.

In the second decision, (Independent Residences, Inc.) the Board struck a blow against free speech by refusing to set aside a union representation election where New York state had unlawfully limited the employers' - but not the unions' - ability to communicate with employees about the advantages or disadvantages of unionization.

In both cases, Republican Board Members Peter Schaumber and Brian Hayes filed vigorous dissents.

While CDW has done a great job fighting EFCA legislation, we would be remiss if we failed to address Big Labor’s attempt to advance the principles of EFCA---sacrificing the rights of employees and employers at the altar of forced unionization---through other means, such as the NLRB.

CDW will continue to keep you apprised of these cases, and any other instances where the EFCA agenda is being advanced.

Thanks, and you can find more info below if you are interested in reading further about these two important Board cases.

Brief Summaries of NLRB Decisions

The Dana Corp. decision provided employees a 45 day window to petition for an NLRB secret ballot election if their employer decided to recognize a union based on card-check. If the Dana decision is reversed by the Board in Rite Aid Store #6473, many employees could be denied the opportunity to challenge a card check through a secret ballot election for years.

Concerned with the inherent flaws of card-check, the NLRB ruled in Dana Corp. that employees have a right, within 45 days, to file a petition for a secret ballot election to decertify the union or in support of a rival union, when an employer agrees to recognize a union based on card-check. The Dana decision also said the employer must post a notice advising the employees this right.

Since Dana was decided, the Board has held 54 secret ballot elections in the Dana 45 day periods. In 15 cases - 25% of those elections - the employees have rejected the card check recognition. As stated in the announcement from the Board, interested parties are encouraged to file briefs on this issue. The invitation to file briefs is here.

In Independence Residences, Inc., an employer sought to set aside a union representation election because a New York state law had unlawfully limited the employers' right to communicate with its employees about the union campaign. The New York law effectively prohibited employers from using any state funds they receive to communicate with employees about advantages or disadvantages of unionization. The employer in the case receives more than 99 percent of its $8 million budget from state funds, thus it was greatly restricted in its ability to communicate with its employees about the union campaign by the state law.

The Board rejected the employers' petition to overturn the election, even though under U.S. Supreme Court precedent the New York state law in question is preempted by the National Labor Relations Act because of the limits the state law imposes on employer speech and the debate over the pros and cons of union representation. As one court said about the New York law , "[i]t is difficult, if not impossible to see, however, how an employee could intelligently exercise [his or her representation] rights, especially the right to decline union representation, if the employee only hears one side of the story – the union’s.”

Brian Worth

Independent Electrical Contractors, Inc

OSHA publishes final rule on cranes and derricks in construction

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration today announced that it is issuing a new rule addressing the use of cranes and derricks in construction, which will replace a decades-old standard. Approximately 267,000 construction, crane rental and crane certification establishments employing about 4.8 million workers will be affected by the rule published today.

Click here to read the entire release.

CDW Message Regarding Recent Conway Statement

CDW Members………..

Just wanted to pass along this timely reminder that the supporters of EFCA have not given up in their efforts to force card-check and mandatory binding arbitration upon our nation’s job creators.

Please see the below comments by Jack Conway, a nominee for the U.S. Senate in Kentucky:

Jack Conway reinforced his desire to “make it as easy as we can” to pass card check, despite the fact that it would impede Kentucky’s workers right to a secret ballot. While he admitted that Kentucky has lost “100,000 manufacturing jobs in this state in the last decade,” Conway stood by his support for the flawed legislation, even as the interviewer pointed out that it was a “job killer.” CLICK HERE to listen to Conway’s interview.

Mr. Conway’s unequivocal support for EFCA serves notice that we cannot let up in our opposition to this onerous legislation, because Big Labor and their allies have not given up.

As Congressmen and Senators return to their districts during this long August recess period, they’re going to hear from our members companies, and countless other employers, that job creation is priority #1. Let’s make sure that part of that message continues to be the very real threat that a job-killing bill such as EFCA poses to our nation’s economy.

Thanks,

Brian

WSJ Article from 7/16

To Protest Hiring of Nonunion Help, Union Hires Nonunion Pickets

Jobless Recruits Get Minimum Wage 'To March Around and Sound Off'

WASHINGTON—Billy Raye, a 51-year-old unemployed bike courier, is looking for work.

Fortunately for him, the Mid-Atlantic Regional Council of Carpenters is seeking paid demonstrators to march and chant in its current picket line outside the McPherson Building, an office complex here where the council says work is being done with nonunion labor.

Read the entire article by clicking here.

CDW Letter on Electronic Voting

CDW Members:

Last week, we notified you that the National Labor Relations Board (NLRB) is looking into the feasibility of conducting organizing elections electronically, including possibly doing so in a manner that allows employees to vote from their home computer or some other remote location that cannot be fully supervised by the NLRB.

Since they can’t get EFCA or an EFCA alternative signed into law, Big Labor is turning to the Board to accomplish their goals. This push for remote, electronic voting is part of their effort.

Therefore, it is important that CDW and its entire membership directly comment on the potential threats to worker privacy, and thus the election process, caused by remote voting.

You can read CDW’s letter here. This letter has also been transmitted to the House and Senate.

WSJ Article: Obama's Union Favors

Obama's Union Favors

The latest rule change slams the airlines.

Two weeks ago, the AFL-CIO took down the huge banner calling for passage of "card check" legislation from the side of its Washington headquarters. Looks like the union federation knows its top priority—to eliminate the secret ballot in workplace elections—won't pass the Senate anytime soon. But don't worry, the Obama Administration is quietly giving Big Labor what it wants through the back door.....

To read the entire article click HERE.

Message to CDW Members

CDW Members:

CDW is continuing to bang the drum in opposition to EFCA. Our most recent print ad is being run in today’s edition of USA Today. You can see the ad here.

While EFCA seems to have slipped off the radar screens here in Washington, it is crucial that we not allow this legislation---or alternative versions of the bill---to gain any traction that could result in their passage by either house of Congress.

Recently, Senator Claire McCaskill (D-MO) said, regarding the Employee Free Choice Act, "I think there's a lot of negotiation that's going on about card-check." While Senator McCaskill acknowledged the possibility that card-check itself may be dead, her comments about ongoing negotiations on this issue are indicative of Big Labor’s continued efforts to strike a deal to move some version of EFCA. You can read the entire McCaskill article here.

Legislative Conferences

As most of our trade associations are moving into legislative fly-in season, we are strongly encouraging everyone to keep EFCA at the top of your organization’s list of legislative priorities.

And, if possible, please feel free to share any relevant intel on this topic, that is picked up during Hill visits when your members are in town.

Lobbying Committee

For those organizations with a DC-area presence, CDW’s Lobbying Committee will be meeting again at 11:00 am on Thursday, May 6. If you’d like to attend this meeting, please contact Rob Green (greenr@nrf.com) for more information.

Finally, since CDW was outspoken in our opposition to Craig Becker’s nomination to the NLRB, I wanted to share this Wall Street Journal story about the race to succeed Andy Stern at the SEIU. It is telling that one of the candidates to be Stern’s successor, Anna Burger, lays out a strategy that includes an effort to “push a labor-friendly majority on the NLRB.” Big Labor knows that they’re running out of time to pass their #1 priority, EFCA, so their fall back plan includes using the regulatory process to circumvent Congress. You can read the story here.

As always, thanks for all of your efforts to date, and keep up the good work.

Thanks,

Brian

New Safety Bulletin

There is a new safety bulletin focusing on 'Understanding Pipelayer Dynamics in Slope Applications' available at www.safety.cat.com.

WSJ Article: Crony Contracts

Crony Contracts

Want federal business? Better be a union shop.

There's almost a direct correlation these days between the Obama Administration's complaints about "special interests" and its own fealty to such interests. Consider its latest decree that federal contractors must be union shops....

Click here to read the entire article.

Another New CDW Ad

First, CDW has launched a new print ad this week. This ad ran on Thursday, March 25, in Roll Call and Politico, and will run the first week in April in USA Today.

Now that Congress and the White House have completed their work on health care reform, CDW wants to make sure that any momentum from their victory does not lead them to think that it would be a good idea to pivot to EFCA, or some EFCA alternative.

Becker Nomination

Senator Tom Harkin has stated that President Obama will use a recess appoint to seat Craig Becker on the National Labor Relations Board, and AFL-CIO president Richard Trumka has echoed this sentiment.

As you recall, Mr. Becker’s nomination received bi-partisan opposition during Senate debate in February, and his nomination failed to be approved by the Senate. CDW has once again opposed Mr. Becker’s nomination, and you can see our letter here.

For those of you wondering about Mr. Becker’s connection to CDW’s efforts to defeat EFCA and all related proposals, you’ll be interested in this quote from Stewart Acuff of the Utility Workers Union of America:

“If we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to theNational Labor Relations Board to change the rules governing forming a union through administrative action.... " Link to article is here

Thank you for your continued efforts to defeat the Employee Free Choice Act.

National Action Summit for Latino Worker Health and Safety

April 14-15, 2010
Houston, Texas

Agenda Now Available

The Department of Labor's Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health, in partnership with the National Institute of Environmental Health Sciences, are hosting the National Action Summit for Latino Worker Health and Safety April 14-15, 2010 in Houston, Texas. The agenda for this event is now available online and includes many of our keynote speakers including the opening address by U.S. Secretary of Labor, Hilda L. Solis.

For more information on the Summit or to register, click here or call 781-674-7374 or toll free at 800-803-2833.