Union bosses and their allies in the federal government are trying to enact Card Check through regulation.

Federal regulators appointed by the Obama administration at the National Labor Relations Board (NLRB) and Department of Labor (DOL) have proposed two new regulations that threaten employers’ ability to seek and retain legal counsel and properly discuss union-organizing drives with employees. The effect will be to make a mockery of real elections and impose Card Check by regulation. 

These actions and more at the NLRB are the impetus of the Protecting Jobs from Government Interference Act (HR 2587). Working with the Coalition for a Democratic Workplace, NSCA is pleased to provide you with an easy way to contact federal agencies and your members of Congress and tell them to stop Card Check by regulation, stop the NLRB’s outrageous prosecution in the Boeing case and stop "micro-unions." Click here to contact Congress.

Combined, these proposed rules would:

• Dramatically decrease the time employers have to speak with their employees about union representation, potentially shortening the entire arcane election process to just 10 days from the current median of 38 days (NLRB);
• Effectively block small businesses from obtaining legal and other advice about how to talk to employees during a union organizing drive (DOL);
• Ensure that many attorneys will be unwilling to assist employers under new rules that could force both client and counsel toward disclosing vast amounts of private financial and other data (DOL); and
• Unfairly tip the scale toward union organizers and leave employees without enough information or time to make a real decision in a real election (NLRB).

Simultaneously, you can tell your legislators about these harmful proposed regulations and other pending attacks on business, such as decisions that would allow for micro-unions (which are designed to let organizers pick pro-union employees but disenfranchise those who may vote to remain union-free) and ask them to support  legislation that would prevent the NLRB from telling private employers where they can operate or create jobs.

Only a forceful reply by America’s job creators can convince the administration to put away these costly, bureaucratic and unfair rules so that we can return to focusing on our companies and creating jobs.

Provide comments on Proposed Rules by the National Labor Relations Board and the Department of Labor.

Summary of NLRB Proposed Rules:
On June 21, 2011, the NLRB proposed a rule on "ambush elections." Under the proposed rule, the NLRB would conduct representation elections in as few as 10 days after the union files a petition, as opposed to the current median of 38 days between petition and election. The reduced time frame would leave employers barely enough time to secure legal counsel, with little to no opportunity to talk to employees about union representation or respond to promises union organizers may have made to secure union support, even though many of those promises may be completely unrealistic.

Summary of Department of Labor Proposed Rules:
A day earlier, on June 20, 2011, the DOL released it proposed "gag rule." The proposal would reverse 50 years of established law and require employers to disclose an otherwise confidential agreement when a consultant, lawyer, association or seminar presenter provides the business with materials used for communication with employees about unions, such as policies or prepared speeches, or revises drafts of such documents written by company management. This would be the case even if the consultant, lawyer, association or seminar presenter never actually interacts with the employees. Failure to report or filing false or incomplete reports could result in civil and criminal penalties. The disclosure requirements are intrusive and designed to intimidate businesses, particularly small businesses, from relying on counsel or other consultants to assist in communicating with employees about unions.

National Labor Relations Board Cases:
Lastly, one case pending before the NLRB that may have a particularly negative effect on the economy is Specialty Healthcare. In that case, the NLRB is considering reversing decades of established law and allowing "micro-unions." This would make it easier for unions to organize by permitting them to form smaller bargaining units that often exclude those similarly situated employees who oppose unionization, effectively disenfranchising them.

Under current law, bargaining units must include employees that share a community of interest. Smaller units are only permissible where the employees in the proposed unit have interests that are "sufficiently distinct from those of other employees to warrant the establishment of a separate unit." This prevents proliferation of small, "fractured units."

If the NLRB decides in Specialty Healthcare to permit micro-unions and fractured units, businesses would be required to manage multiple small units of similarly situated employees with increased chances of work stoppages, and potentially different pay scales, benefits, work rules and bargaining schedules. This would greatly limit an employer's ability to cross-train and meet customer and client demands via lean, flexible staffing as employees could not perform work assigned to another units. Employees also would suffer from reduced job opportunities as promotions and transfers would be hindered by organizational unit barriers. The potential negative effect of the Specialty Healthcare case to workers, businesses and our economy is dramatic and almost certain to drive many small employers out of business.

Boeing Case:
On April 20, 2011, the NLRB filed a complaint against The Boeing Company for creating work in South Carolina and demanded the work be transferred to Puget Sound, Washington. If successful, the NLRB’s action may destroy an estimated 1,000 South Carolina jobs and have a chilling effect on job creators across the country. Under current law, the NLRB has more than a dozen remedies at its disposal to hold employers accountable for unlawful labor practices, including the authority to order a private company to relocate or transfer existing or planned employment.

The legislation amends the National Labor Relations Act to prohibit the NLRB from ordering any employer to relocate, shut down or transfer employment under any circumstance. Further, upon enactment, the limitation on the NLRB’s authority will apply to all cases that have not reached final adjudication before the board.

For more information on Card Check, please review:

• Legislation (112th Congress)
• Legislation (111th Congress)  
• National Labor Relations Board 
• Captive Audience Meetings 
• Coalition for a Democratic Workplace

 National Labor Relations Board (NLRB) — NEW!

While Card Check/EFCA is not expected to pass in legislative form in this current Congress, many components of the bill are expected to be raised at the NLRB and could prove to be detrimental to NSCA members. 

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NSCA recently signed onto the Coalition for a Democratic Workforce amicus brief, a document that is filed in court by an indirectly related party. These comments are in reference to Case 16 RD-1597 (Rite Aid Store #6473) within the NLRB, of which a decision is being made on voluntary Card-Check agreements. The arguments stated in the brief on behalf of the coalition include:

1. The right of employees to make a free choice concerning representation must not be subordinated to the promotion of labor stability.
   
   *  Employee free choice is the essential predicate to labor stability. 
   *  A secret ballot election conducted by the National Labor Relations Board is the best method for determining employees’ freely chosen collective bargaining representative. 
2. Voluntary recognition pursuant to neutrality/Card Check agreements should not be accorded bar status equal to that of Board-conducted elections. 
3. The Dana policy is a rational modification of the Keller Plastics Eastern voluntary recognition bar that recognizes the realities of contemporary industrial relations. 
4. No compelling reason has emerged since issuance of Dana to justify modifying or overturning the decision. 

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With the passage of EFCA highly unlikely during the 2010 legislative session of the U.S. Congress, Big Labor and the administration are focused on using the federal regulatory process to achieve the objectives they hoped to gain through Card Check.

Additionally, President Obama placed former Service Employees International Union (SEIU) lawyer Craig Becker on the National Labor Relations Board. This recess appointment provides EFCA supporters with an opportunity to pass their agenda through the NLRB. Throughout the fall of 2010, Becker and the Board are working fast to pass or revisit previous decisions that will move part of the EFCA agenda.

Two decisions that attack workplace democracy have already been made:

• In the Rite Aid Store #6473 case, the Board announced it would revisit the 2007 Dana Corp. decision, which provided important protections to employees facing  "voluntary" card check agreements.   
   
• In the Independence Residences, Inc. decision, the Board struck a blow against free speech by letting a union representation election stand in which New York state unlawfully limited the employer's – but not the union's – 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 the Coalition for a Democratic Workplace (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. 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 to support 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 employees of 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 employer's 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 by state law in its ability to communicate with its employees about the union campaign. 

The Board rejected the employer's 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 it imposes on employer speech and the debate about 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.” 

Updated September 3, 2010

Card Check Legislative Initiatives

112th Congress

• HR 2587: Protecting Jobs From Government Interference Act
• Press Release: Republicans Introduce Legislation to Prevent NLRB From Dictating Location of American Jobs
• CDW Testimony at the NLRB Hearing on its Proposed "Ambush Election" Rule
• News: July 22, 2011: Another Manufacturing Giant Goes Under Microscope of National Labor Relations Board
• News: July 19, 2011: UAW Local Files Union-Busting Complaint Against Bell Helicopter

111th Congress

H.R. 1409 and S. 560, the "Employee Free Choice Act" bills often referred to as "Card Check" or “EFCA,” would change how unions are allowed to organize workers in the U.S. and could negatively affect systems contractors.

This legislation would be harmful to systems contractors who have maintained a strong, steady business not controlled by labor unions. The bill includes three main changes that would affect systems contractors:

• The ability to maintain a secret ballot vote for participation in union organizations could be changed to open voting.  
• Business owners could see harmful financial repercussions due to new binding arbitration contracts if there is a delay in benefits negotiations. Essentially, owners would lose control of business decisions, from salaries and vacation time to insurance. These decisions would be made by the union or by the federal government in a dispute.  
• Employers would also see financial penalties during negotiations with labor unions or the federal government and harsh penalties on back-pay violations.

Furthermore, Big Labor is working to pass portions of EFCA through the rulemaking process of the National Labor Relations Board. Several rulings have been re-opened and decided; others are expected to be reviewed again in an attempt to pass certain measures through a non-democratic process.

More than 30 states have introduced variations of Card Check.  Other tactics include limiting the ability to hold captive audience meetings or eliminating private ballots unless you are a state or municipal worker.

Several versions of Card Check legislation have been introduced, and a variety of negotiations have been discussed, in order to pass legislation. While passage does not seem likely during the 111th Congress, some of the versions and options include the removal of the Card Check provision but would highlight other provisions, including:

• Mandatory binding arbitration in labor contract negotiations or any effort that would deprive workers and employers of a voice in the approval or rejection of their own contracts;  
• Financial penalties on employers during the negotiation process and harsh penalties on back-pay violations;  
• “Quickie” elections that would limit the ability of employers to properly educate their employees on union organizations as well as limit free speech and debate on every citizen's right; and  
• “Union Access” provisions, including solicitations by non-employee union organizers during the work day and in the community, as well as at-home solicitations, which are illegal for employers.

This legislation could cause harmful financial repercussions for business owners and lead to a decrease in your workforce in a time when job growth and economic stability are of the upmost importance.

Updated May 13, 2010

Card Check "Compromise" Means Workers Rights Are Compromised

EFCA alternative is still EFCA

Last week, the Coalition for a Democratic Workplace (CDW) said that efforts by unions to trump up a so-called "compromise" on the Employee Free Choice Act (EFCA) would further violate worker rights and place yet another undue burden on small businesses. With growing bipartisan opposition to card check legislation, labor unions and their allies are scrambling to cut a deal that would keep the EFCA alive. 
 
The New York Times reported on July 17 that a small group of Democratic Senators was working on an alternative version of EFCA that would not include the Card Check provision. As reported, this new EFCA would swap Card Check for "quickie" or ambush elections and allow unions to access employees during the work day, while restricting employer free speech during an organizing campaign.
 
"Unfortunately, the EFCA alternatives that give unions unprecedented workplace access are another attack on worker privacy, opening the door to harassment by union organizers at work as well as at home," said Brian Worth, CDW chairman. "Furthermore, these variations on Card Check do considerable harm to small businesses, putting unnecessary government burdens on their ability to create new jobs."
 
The Times article also referenced union support for EFCA's controversial mandatory binding interest arbitration provision, which would stifle growth and job creation by forcing small businesses to operate under a contract crafted by government-appointed arbitrators.
 
"The biggest losers under the binding interest arbitration scheme are small business owners, who will be subject to government arbitrators essentially deciding how their businesses will run and workers who would be denied a vote on the contract," Worth said.
 
Backroom deals to save EFCA under the guise of compromise are irrelevant at this point for workers and small businesses. There is no difference between the anti-worker Card Check scheme and ambush elections, which would penalize small businesses and workers. They both deny workers the opportunity to hear both sides of the debate before a secret ballot election is held. For small business employers who are focused on running their businesses, ambush elections deny them the time to ensure that the process is fair. Additionally, allowing professional union organizers on the jobsite is equally as troubling. Current laws already allow employees who support the union to campaign on company property and for paid union organizers to contact workers outside the workplace, such as at an employee’s home. Conversely, employers are not allowed to contact employees during non-work hours.
 
While Card Check’s future remains uncertain, there is no question about the determination of Big Labor to include the anti-worker provision in the final version of EFCA. In response to The New York Times story, Service Employees International Union (SEIU) President, Andy Stern, said, "As we have said from day one, majority signup is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority signup provision in the final bill or by amendment in both houses of Congress."

Captive Audience Meetings

Captive Audience meetings are defined as an employer-sponsored meeting with its primary purpose being to communicate the employer's opinion concerning religious or political matters. Political matters are defined as political party affiliation, or a decision to join or not join any lawful political, social or community group or activity, or any labor organization.
 
Legislation proposed in 2009 in Connecticut did not pass, but would have banned employers from requiring employees to be at these meetings. The National Labor Relations Act gives the employer the right to hold a meeting with employees more than 24 hours before a union election is held as long as no threatening actions are taken. In addition, this bill would have limited the open communications many small business owners appreciate with their employees for fear of the reprimands and potential financial ramifications that these conversations could lead to.