The National Labor Relations Board has provided unions with a variety of favorable rulings during the Obama years, but perhaps none as dramatic as one last Thursday. On August 27, the NLRB, in a 3-2 vote, concluded that Browning-Ferris Industries (BFI) of California Inc. qualifies as a “joint employer” alongside another firm, Leadpoint Business Services, with which it had contracted to handle labor operations at a Bay Area recycling plant. As such, both companies must negotiate with a Teamsters affiliate should the results of a representation vote last spring reveal a union victory. The ruling could force many large employers to the bargaining table over labor issues which they have little or no direct control, while sharply raising business costs for contractors, franchisees and temp agencies. And it isn’t just the Teamsters who are rejoicing.
By now it is settled judicial opinion: A private-sector union can’t force nonunion employees under contract to pay dues for purposes beyond collective bargaining. The U.S. Supreme Court cogently expressed this view in its landmark 1988 ruling, Communications Workers of America v. Beck. Yet it is almost as if the decision never happened. A new law journal article by prominent Right to Work attorney Raymond LaJeunesse, Jr. explains why. He points a finger not only at the unions, who at least act out of recognizable self-interest, but more importantly, at the ostensibly nonpartisan National Labor Relations Board. The NLRB, he argues, using a variety of tactics, over the years has acted more as a de facto advocate for unionism than as a guardian of the public trust. And the situation has gotten worse under President Obama.
Some would call it punting. Others would call it common sense. Both summations might apply. On Monday, August 17, the National Labor Relations Board unanimously ruled that scholarship football players at Northwestern University cannot form a union. In overturning a March 2014 regional NLRB decision, the board concluded that allowing union organizing at one campus, but not at others, would be disruptive. The ruling read: “Our decision is primarily premised on a finding that because of the nature of sports leagues…it would not promote stability in labor relations to assert jurisdiction in this case.” While the decision is a rebuke to the players’ request, its scope is narrow. By declining to rule on whether student-athletes qualify as “employees,” the board has kept the door open for similar cases.
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.