h

John F. Bowen Charles E. FeussFebruary 17, 2011

UNIONIZATION CONTINUES ITS DECLINE!

Twin Cities Labor Relations Roundtable

TWIN CITIES LABOR RELATIONS ROUNDTABLE

34.7%

6.9%

Twin Cities Labor Relations Roundtable

NLRB IN THE NEWS!“Impartial” Labor Board Exposes Very Pro-Union Agenda

• Board Member Mark Pearce advocated that the NLRB adopt Canadian-style “quickie” five or ten day union representation elections (Oct 22, 2010 Suffolk University Law School)

• Board Schilling for Card Check? NLRB challenged States that enacted “Secret Ballot Amendments” to guarantee that employees have the right to vote on union representation

• House Committee Holds Hearings on Recent NLRB ActivityHouse Committee on Education and the Workforce held hearings on February 11

“Board has abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.” Opening Statement, Chairman Rep. Phil Roe (R-TN)

Twin Cities Labor Relations Roundtable

NLRB IN THE NEWS!“Impartial” Labor Board Exposes Very Pro-Union Agenda

• NLRB Chair Wilma Liebman on February 11, 2011 in response to the House Committee Hearings:

The most significant “emerging trend” at the NLRB is that the agency is coming back to life after a long period of dormancy.

• Board Member Wilma Liebman in 2004 in response to Bush-era Board decisions:

Although the Board should overturn precedent in order to address changingcircumstances, a mere change in the composition of the Board does not justify “kneejerk or reflexive” actions to overturn Clinton-era board rulings. . . . The Board majorityhas treated recent precedent as having the jurisprudential force of a post it note.

Twin Cities Labor Relations Roundtable

AN UNPRECEDENTED EXPANSION OF POWER BY THE NLRB

Since President Obama’s appointees assumed control of the Labor Board earlier this year, we have seen an extraordinary expansion of NLRB power and authority.

Primer on the NLRB• Federal agency in charge of administering the NLRA

• Five member panel composed of presidential appointees who serve staggered five-year terms

• Chair Wilma Liebman | Marc Pearce I Craig Becker | Brian Hayes• Pending nomination for Terence Flynn

• NLRB General Counsel (also appointed by the president)• Lafe Solomon

• Regional Offices of the NLRB• 51 Regional, Sub-regional, and Resident offices

NLRB AUTHORITY

Twin Cities Labor Relations Roundtable

• Decision Making Authority: Primary source of Board authority comes though issuing decisions interpreting and enforcing the Act• Needs cases to come to it through the appeals process from cases decided at the

Regional level• Political body – Precedent tends to shift as Presidential administrations change• Liebman Board: “Notice and Invitation to File Briefs”

• Signaling to labor unions the Board’s desire and intent to change precedent• NLRB Rulemaking authority

• Historically – rarely exercised• General Counsel

• Independent from the Board, but . . .• Responsible for Regional investigation and prosecution of ULP charges• Supervises Regional Representation cases• Establishes Board legal policy through GC Memoranda

Twin Cities Labor Relations Roundtable

GENERAL COUNSEL MEMORANDA

• GC Memorandum 11-05: Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) Cases (Jan 20, 2011)

• GC Memorandum 11-04: Revised Casehandling Instructions Regarding the Use of Default Language in Informal Settlement Agreements and Compliance Settlement Agreements (Jan 12, 2011)

Auto default upon default

• GC Memorandum 11-01: Effective Remedies in Organizing Campaigns (Dec 20, 2010)

Employer humiliation tactics as a means to achieve “labor peace”

• GC Memorandum 10-07: Effective 10(j) Remedies for Unlawful Discharges in Organizing Campaigns Expanded use of injunctions

Twin Cities Labor Relations Roundtable

RECENT NLRB DECISIONS

• JR Flooring, Inc., 356 NLRB No. 9 (October 22, 2010)Employer must distribute remedial notices electronically whenthat is a customary means of communicating with employees

• Jackson Hospital Corp., 356 NLRB No. 8 (October 22, 2010)Daily compounding of interest in backpay awards, modifying the 50-year rule ofassessing interest on a quarterly basis

• Parexel International, 356 NLRB No. 82 (January 2011)Board determined that the firing of an employee who complained about wagediscrepancies was a “pre-emptive strike” against potential concerted activity, andtherefore unlawful under Sections 8(a)(1) and (3) of the Act

This not based on anything that the employer did, but on what the Board perceived tobe the employer’s intent!

Huge expansion of “protected concerted activity” under Section 7.

Twin Cities Labor Relations Roundtable

NLRB “SOLICITATION OF BRIEFS”SIGNALING THE OVERTURNING OF PRECEDENT

• NLRB TO RECONSIDER SUCCESSOR BAR DOCTRINEBoard Will Likely Overturn MV Transportation and Return To Precedent Established By Clinton Board in Elizabeth Manor

• BOARD TO RECONSIDER PROCEDURES FOR VOLUNTARY RECOGNITIONLiebman Board Will Likely Overturn Dana Corp Decision and return to “voluntary recognition bar” doctrine

• BOARD TO EXPAND UNION ACCESS TO EMPLOYER PROPERTY• Roundy’s Inc. and Milwaukee Building and Trades Council

If you allow girl scouts, you must allow the union organizer!

• NLRB TO CHANGE APPROACH TO BARGAINING UNIT DETERMINATIONS IN LONG-TERM CARE FACILITIES

Review use of “community of interest” factors in non-acute care facilities

,

Twin Cities Labor Relations Roundtable

NLRB RULEMAKING AUTHORITYNEW “ORGANIZING RIGHTS” POSTER

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.• Bargain collectively through representatives of employees’ own choosing

for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Twin Cities Labor Relations Roundtable

NEW “ORGANIZING RIGHTS” POSTER

QUESTIONS?

John F. Bowenjfbowen@johnfbowen.com

Charles E. Feusscfeuss@felhaber.com