The National Labor Relations Board has posted the amicus briefs submitted in response to the NLRB’s review of a case that the board could use to justify a radical change in labor policy, the authorization of “micro unions.” (See our posts immediately below here and here.)

The case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9. The National Association of Manufacturers is a member of the Coalition for a Democratic Workplace, which submitted its amicus brief in alliance with the HR Policy Association.

To simplify the sides, employers and employer groups believe the NLRB is going too far in turning one specific labor dispute into a broader review of what legitimately constitutes a bargaining unit. Labor unions want a million units to bloom, allowing organizers to pick and choose small groups of employees whom they can more efficiently persuade and pressure into joining a union.

The employer’s brief: Specialty Healthcare and Rehabilitation Center of Mobile

The union’s brief: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, i.e., USW

Amicus briefs from labor unions:

• AFL-CIO
• Service Employees International Union
• International Union of Operating Engineers

Amicus briefs from employer groups:

• National Association of Waterfront Employers
• Georgia Chamber of Commerce
• International Foodservice Distributors Association
• Chamber of Commerce of the United States of America
• American Hospital Association and American Society for Healthcare Human Resources Administration
• American Health Care Association & National Center for Assisted Living and affiliates

Submitting a letter were three Republican members of the Senate Heath, Education, Labor and Pensions Comittee: Senators Mike Enzi, Orrin Hatch, Johnny Isakson (continue reading…)

President Obama visited a Fairfax, Va., family last September to promote his Administration’s agenda before the 2010 elections. Asked about the prospects for passing the Employee Free Choice Act, i.e., card check, the President said [our emphasis]:

Frankly, we don’t have 60 votes in the Senate. So the opportunity to actually get this passed right now is not real high. What we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.

The move (discussed below) by the National Labor Relations Board to redefine acceptable bargaining units and allow “micro unions” sure looks like the President’s plan put into action, doesn’t it? Don’t pass a law, don’t even hold a formal rule-making procedure, just solicit amicus briefs and then issue a ruling that overturns decades of precedent and rewrites labor law.

Three U.S. Senators have registered their objections to the NLRB’s attempt to circumvent the policymaking branch of government, Congress. In a March 8 letter to the board, Sens. Mike Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA) wrote:

As United States Senators and members of the Health, Education, Labor and Pensions (“HELP”) Committee, we have a vested interest in the outcome of the underlying case. When an independent government agency, acting within its discretion, creates policy that conflicts with federal statute, or attempts to circumvent the legislative or rulemaking process, Congress must weigh in to ensure constitutional boundaries are not crossed. What we have learned from various stakeholders is that the decision in Specialty Healthcare could result in changing the determination of appropriate bargaining units in every workplace under the Board’s jurisdiction. We believe such a major change should only be done by amending the statute, which is the exclusive province of Congress.

The Senators acknowledged that the board can at times change policy through adjudication, i.e., ruling on a case, and it would be appropriate to seek amicus briefs in those circumstances. However, that process should not be a substitute for formal rulemaking, they argued.

The NLRB voted 3-1 to go ahead with its review in the Specialty Healthcare case, with the three votes coming from the Democratic members: Chairman Wilma Liebman, former labor lawyer Mark Pearce, and former SEIU and AFL-CIO counsel Craig Becker, a recess appointee. In his dissent, the sole Republican on the board, Brian Hayes, delineated how the majority’s overreach in entering the policymaking realm. Indeed, neither of the two parties in the case sought the broad review the board is undertaking. Hayes concluded: (continue reading…)

The National Labor Relations Board is opening the door to a new and radical reinterpretation of labor law, allowing the formation of “micro unions” that could force employers to deal with multiple bargaining units at a single workplace. If the scheme is pushed through, labor organizers could approach small groups of employees to form unions, even though the majority of workers at a job site would oppose unionization. The multiplying of bargaining units at a single business location would create enormous management problems and grant a few employees the ability to disrupt business operations through a labor action. Big Labor loves the idea.

The case, Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, involves the attempt of the Steelworkers to organize a group of certified nursing assistants at a nursing home. The employer, Specialty Healthcare, maintained that the only appropriate unit consists of all nonprofessional service and maintenance employees.

The NLRB’s Regional Director sided with the Steelworkers, finding the smaller bargaining unit acceptable, and Specialty Healthcare appealed. Rather than rule on its own, the NLRB sent out a request for amicus briefs to comment on what constitutes an appropriate bargaining unit. This unusual step strongly suggests to us that the board’s three-member Democratic majority wants to use the case to overturn precedent and allow creation of these small “micro unions.”

Not surprisingly, the apparent intellectual instigator of this exercise is Craig Becker, the radical labor theoretician and former SEIU and AFL-CIO counsel. (Becker serves on the board as a recess appointment, having failed to win Senate confirmation.) In another NLRB case, Wheeling Island Gaming, Becker argued for letting a casino’s poker dealers form their own bargaining unit, supposedly because they had separate and distinct interests from blackjack dealers and craps and roulette operators. Even his fellow Democratic board members, Chairman Wilma Liebman and former labor lawyer Mark Pearce, thought he went too far. Correction (3:20 p.m.): Chairman Wilma Liebman, a fellow Democrat, and former Republican appointee William Schaumber, disagreed. The NLRB order is here.

The Coalition for a Democratic Workplace (CDW), to which the National Association of Manufacturers, and the HR Policy Association have filed an amicus brief (download here) raising strong objections to any attempt by the NLRB to overturn longstanding precedent. From the CDW’s news release, “Activist NLRB To Hear Case On Special(ty) Interests“:

At issue in Specialty Healthcare is whether Big Labor may organize by cherry picking groups of workers that support the union without providing many co-workers who may oppose the union an opportunity to vote. Such a ruling would reverse over 50 years of standards for bargaining units. (continue reading…)

In the continuing staffing up of Cabinet agencies, the White House last week announced the appointment of Mary Beth Maxwell to be a senior advisor to Labor Secretary Hilda Solis, with liaison responsibilities to Vice President Joe Biden’s Middle Class Task Force.

AP summarizes: “President Barack Obama has appointed a key union activist as senior adviser to Labor Secretary Hilda Solis, another sign of the influence that organized labor wields in the Obama administration.”

Maxwell has been the executive director of American Rights at Work, a union front group* that has financed much of the advertising in support of the Employee Free Choice Act — or more accurately, attacking business as greedy exploiters of the working man and women. The political scuttlebutt before Solis’ nomination as Labor Secretary was that Maxwell might fill the post. (See this Wall Street Journal blog post.) Solis served on American Rights at Work’s board of directors.

We’re in low, low dudgeon about appointments like Maxwell’s. Of course a Democratic White House is going to put labor allies in positions of power at the Department of Labor. And being named as a liaison to a PR effort looks like the very definition of a sinecure as opposed to being put in a substantive position of power.

* We refer to American Rights at Work as a “union front group” just as a dig. Its hack writers are always referring to the Coalition for a Democratic Workplace as a front group for corporations, etc., when the group — in which the NAM is an active member — is clear about its membership. CDW opposes the Employee Free Choice Act.

If anything, the Coalition for a Democratic Workplace should be called a “corporate upfront group.”

* American Rights at Work describes itself as a non-profit. Yes, but the group is also registered as a lobbying organization. See its latest disclosure. So we’ll now call them a “union front group and lobbying outfit.”

The Coalition for a Democratic Workplace, to which the NAM belongs, has begun running TV spots in Maine distinguishing the positions of the two U.S. Senate candidates on the Employee Free Choice Act, i.e., card check. Incumbent Sen. Susan Collins, a Republican, is running against Rep. Tom Allen, a Democrat.

From the CDW’s release:

Union special interests have made support for the EFCA, or “card check” bill, a top priority for candidate support this election year. Under the EFCA, workers would effectively lose their right to a private ballot when deciding whether to be represented by a union. The private ballot would be replaced with a “card-check” scheme where a union is organized if a majority of workers simply sign a card; the workers’ signatures are made public to their employer, the union organizers and their co-workers. The bill passed the U.S. House of Representatives but was blocked in the Senate in June 2007. Labor union leaders have promised to re-introduce the legislation next year.

“The people of Maine need to know that workers could effectively lose their right to cast a private ballot in a union election. The next U.S. Senate will have to make a decision about the anti-worker Employee Free Choice Act,” said Brian Worth with the Coalition for a Democratic Workplace. “We will continue to provide information to Maine citizens about where the candidates stand on private ballots,” added Worth. In addition to informing Maine citizens, the ad will ask candidates to support the right to private ballots. Candidates in Maine do not need to give in to union pressure.

Once the legislation’s effect — the destruction of secret-ballot elections -is known, the public overwhelmingly rejects the anti-democratic card check. Indeed, the CDW’s polling in Maine found that more than three in four voters say that a federally supervised election featuring secret ballots is the best way to ensure an employee’s rights.

There’s a separate website for the Maine CWD campaign, right here: http://maine.myprivateballot.com.

First organized labor argued for the Employee Free Choice Act by claiming union membership is the path to a better life. Card check would simplify the creation of a union. And that was the argument.

Realizing that they were getting hammered by the truth that the Employee Free Choice Act would eliminate secret-ballot elections, labor unions then turned up the rhetorical heat. When someone pointed out that card check would destroy the secret ballot in the workplace, labor responded, “Liar! Liar! You’re a liar!” And claim that card check would allow the unions to still call for an election, even though in any realistic world organizers would never demand a vote they might lose. (This Shopfloor post explains why.)

So when ads started running in Minnesota about the Senate candidate Al Frank’s support for killing secret-ballot elections, the Minnesota DFL (the Democratic-Farm-Labor Party) filed a complaint with the Minnesota Office of Administrative Hearings (Star-Tribune story). The party claimed the ads by the Coalition for a Democratic Workplace — to which the NAM belongs — and the separate Minnesotans for Employee Freedom violated state law against disseminating false campaign material.

But the DFL didn’t even bother trying to argue why the ads were false. They just claimed it.

Administrative Law Judge Barbara L. Nielson has now dismissed the complaints. From her memorandum accompanying the order of dismissal to the complaint against CDW.

For purposes of a prima facie determination, the Complainant must detail the factual basis to support a claim that the violation of law has occurred. Here, the Complainant has not alleged with any specificity why the statements at issue are factually false. The Complaint merely asserts that the statements are false and “contrary to the facts,” without providing any further information.

The dismissal of the complaint against the Minnesotans for Employee Freedom is available here.
CDW’s news release is here.

Labor strategy summarized: Deflect, deceive, bluster, abuse, litigate.

Lose.

(Hat tip: Michael D. Brodkorb)