Two and a half years ago, the International Longshoremen's Association was digging in for a strike that could have crippled shipping along the Atlantic and Gulf Coasts. The strike didn't happen. Yet the union power that led to the impasse remains. The Manhattan Institute has some ideas about how to avert future such showdowns. Last month it published a paper, “Held Hostage: U.S. Ports, Labor Unrest, and the Threat to National Commerce,” arguing that strikes and slowdowns, or the threat of them, impose high costs. Written by Institute Senior Fellow Diana Furchtgott-Roth, the report cites federal labor law as the main culprit, concluding Congress should shift responsibility for collective bargaining oversight from the National Labor Relations Board to the National Mediation Board.
If the year 2014 had a main theme, it was, as in 2013, the unions' pursuit of legal advantage. The results were mixed. Unions scored victories at the National Labor Relations Board, but they tasted defeat in the courts, most notably in their effort to unionize private home care providers in Illinois and overturn a Wisconsin law reining in public-sector costs. In another bitter pill, the United Auto Workers last February lost a representation election at the Volkswagen plant in Chattanooga. As for dipping their hands in tills, national union leaders generally behaved themselves, but many local bosses, office employees and business agents did not.
The National Labor Relations Board lately appears to believe that if an aspect of labor law isn't broke, fix it anyway. Unions certainly are comfortable with that. On December 15, the NLRB published a final rule that would dramatically shorten the duration between a union's filing of a petition to represent workers and the holding of a vote. This 'ambush' or 'quickie' election rule, under the guise of promoting fairness and efficiency, would throw roadblocks in front of an employer seeking to respond to union organizer arguments. The board issued its preliminary rule last February after a Washington, D.C. federal court in May 2012 had struck down a similar mandate on procedural grounds. Last Monday, January 5, a coalition of trade groups filed suit to block the rule, set to take effect on April 14. As before, at stake is the right of workers to choose whether to belong to a union.
The National Labor Relations Board has changed in size and composition several times during the Obama administration, but one thing has remained constant: its pro-union majority. Labor officials lately are feeling pretty glad about that. On December 11, the NLRB ruled 3-2 that employees with access to an employer e-mail system can use that system for union organizing during "nonworking time." The ruling, Purple Communications Inc., overturns a 2007 NLRB decision, Register Guard, which held that a company has the discretion to ban non-business-related e-mail interactions among workers, including union-related ones. The board insists the impact of its newest ruling is "limited." Yet unions, especially the Communications Workers of America, see a clear victory along with an expansion of organizing opportunities. And they're probably right.
When it comes to organizing German-owned facilities in the U.S., the United Auto Workers can't be accused of shyness - or it would seem, transparency. For the past several months, the union, led since early June by its new president, Dennis Williams, has been stepping up its campaign to represent Mercedes-Benz workers in central Alabama. The UAW, still smarting from its election defeat this February at the Volkswagen plant in Chattanooga, Tenn., is aware that victory is unlikely. To overcome disadvantage, organizers apparently have been resorting to misinformation. They've been telling workers that federal law bars them from discussing pay and working conditions unless they belong to a union.
Under federal law, workers have as much right to leave a union as they do to form one. Yet that principle may not necessarily apply in California. For at least the past year a de facto alliance between the United Farm Workers (UFW) and a state agency, the California Agricultural Labor Relations Board, has been making it very difficult for employees of a major grower, the Fresno-based Gerawan Farming, to decertify the UFW as their bargaining agent. And the workers are signaling their frustration. On August 26, hundreds of Gerawan workers marched on the board's Visalia regional office to demand a count of a decertification vote held last November. The board's justification for its inaction is that Gerawan broke the law in various ways. Yet there has been no investigation of the UFW-driven allegations.
When does being employed by a contractor also mean being employed by the corporation with whom it contracts? The National Labor Relations Board currently is reviewing this issue in a potential landmark case. If the board rules in favor of a Teamsters local in California, unions everywhere could have a powerful organizing weapon. The union had filed a petition back in July 2013 to represent workers at a San Francisco Bay Area recycling plant. A labor contractor, Leadpoint Business Services, handles hiring, wages and other personnel issues at the plant on behalf of the plant owner, Browning-Ferris Industries (BFI) of California Inc. The union wants the board to classify Leadpoint and BFI as a dual employer for collective bargaining purposes.
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.