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
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
