The National Labor Relations Board has been a model of instability these last half-dozen years. And the drama, though temporarily resolved last July, won't likely end soon. Last Thursday, June 26, the Supreme Court unanimously ruled in Noel Canning v. NLRB that President Obama exceeded his authority in making three "recess appointments" to the NLRB on January 4, 2012 during a Senate break which, in the eyes of the Court, did not qualify as a recess. "The Senate is in session when it says it is," wrote Justice Stephen Breyer. Yet the ruling was not a full defeat for Obama. By 5-4, the four liberals on the Court, joined by Justice Anthony Kennedy (in photo), also ruled against the near-elimination of presidential recess authority and thus undercut a circuit court ruling in January 2013.
An employer presumably sets the rules as to who uses its e-mail accounts and for what purposes. But that presumption might not hold if the users are union organizers. On April 30, the National Labor Relations Board (NLRB) posted a notice soliciting comments on an October ruling by an Administrative Law Judge, Purple Communications Inc., that an employer has the discretion to deny the use of its e-mail system for organizing. If the NLRB reverses the decision, which is likely given its current 3-2 pro-union majority, it would be handing unions a potent organizing tool, and more broadly, restricting employer property rights. A victory by the Communications Workers of America in this case would overturn a 2007 board decision protecting an employer's right to bar the usage of its e-mail for organizing.
Do college athletes qualify as employees? The nature of labor relations in this country could be seriously altered with a "yes" answer. And the National Labor Relations Board has agreed to consider the question. Last Thursday, April 24, the NLRB announced it would review an appeal by Northwestern University of a ruling by the board's Chicago regional office that NCAA Division I men's football and basketball scholarship athletes at private schools, as "employees," may unionize. A major force in this case, Kain Colter, a recent Northwestern quarterback, argues that since college athletes are pro all but in name, they deserve collective bargaining rights. In its appeal, filed on April 9, the university countered, and with good reason, that the decision ignored key facts.
The United Auto Workers is a union that likes a good fight. But even its leaders recognize a lost cause - for now. This morning the union withdrew its appeal to the National Labor Relations Board challenging a secret ballot election held in mid-February that would have enabled it to represent workers at the Volkswagen assembly plant in Chattanooga. Despite having committed VW management to silence via neutrality agreement, the UAW lost by 712 to 626. The union immediately claimed the results were invalid as a result of undue interference by anti-union Tennessee public officials. On February 21, the UAW filed a request with the NLRB to overturn the vote. Yet today it dropped its suit.
It's hard to imagine a blurring of the line between amateur and professional sports more flagrant than the National Labor Relations Board Chicago regional office ruling last Wednesday that Northwestern football players, as "employees," are eligible to unionize. Cheerleaders for the decision include the United Steelworkers and the NFL Players Association. This is to be expected. Unions envision more members, dues and bargaining power. Though the NLRB decision applies only to athletes on scholarship at private institutions, only the naïve would believe it won't influence practices at state schools - or the willingness of unions to organize players at either.
A fair election campaign operates on the principle of a "level playing field" - while neither side is guaranteed victory, each should have an equal opportunity to state its case. The National Labor Relations Board has an unusual interpretation. On February 5, the NLRB reissued a rule that would curtail the ability of nonunion employers and employees to oppose union organizing drives. This 'quickie' or 'ambush' election rule, is a near rewrite of its 2011 rule change that briefly made it onto the books before being struck down on procedural grounds by a federal court in May 2012. Here, as before, the allowable time frame for opponents of a union drive to express their views would be reduced from 42 days to as few as 10 days.
By any reasonable assessment, the odds are against the United Auto Workers. But the union is going ahead anyway with its effort to nullify a vote by Volkswagen assembly plant workers in Chattanooga, Tenn. to reject UAW representation. On Friday, February 21, only hours before expiration of the seven-day deadline, the union filed an appeal with the National Labor Relations Board (NLRB) to overturn the election, decided by a 712-to-626 margin. The outcome was a bitter pill to swallow. A victory would have served as a springboard for organizing drives at foreign-owned auto plants elsewhere in the South.
All eyes, it seemed, were on Tennessee. The stakes were enormous. If the United Auto Workers got to represent employees at the Volkswagen assembly plant near Chattanooga, which opened in 2011, it could create more organizing successes throughout the South. That gambit now is on hold. Last Friday, February 14, the announcement from VW came: Plant employees, by a 712-to-626 margin, voted to reject UAW representation. In choosing to remain nonunion, the majority expressed their preference for resolving wage, benefit and working conditions issues through a German-style 'works council' rather than formal collective bargaining; VW headquarters has instituted such councils at virtually all its plants around the world.
Though union membership as a share of American workers continues its long decline, union officials in 2013 showed they're not the sort to stand on the sidelines, especially in the legal realm. Organized labor was unusually active last year in using the courts and Congress to press their interests. Their ultimate weapon: immigration amnesty/surge legislation. Eight members of the Senate, four from each party ("the Gang of Eight"), solicited advice exclusively from supporters of open borders in hopes of achieving their idea of "comprehensive reform." The Senators unveiled the measure in April and passed it by 68-32 in June, Yet the bill, deservedly, has stalled in the House. Drafted in secret, with no hearings or debate, it represents a corruption of the political process.
Membership in the United Auto Workers has declined dramatically these past few decades. But its officials at last may have found a way to recapture the glory days: Team up with the Germans. Last month, Sen. Bob Corker, R-Tenn., alleged that an activist board member of Volkswagen Group forced the Wolfsburg, Germany-based automaker to disclose that it was negotiating with the UAW to unionize its Chattanooga assembly plant. This factory, like other foreign-owned plants in the South, is nonunion. The powerful German union, IG Metall, and VW management are backing the UAW's campaign to change that. The UAW recently announced that a majority of workers there had signed cards indicating their desire to join.