A former member of the National Labor Relations Board today reaffirmed the NLRB’s authority to punish companies that close facilities, eliminate jobs and relocate to escape union contracts, but said the board’s recent complaint against Boeing does not fall under that “runaway shops” category under federal labor law.

Cleveland attorney Peter Kirsanow, who served as a Republican appointee on the NLRB in 2006-2007, addressed the board’s actions in a blogger briefing call this afternoon sponsored by the National Association of Manufacturers.

On April 20, the NLRB’s acting general counsel, Lafe Solomon, filed a complaint against The Boeing Company, accusing it of commiting an unfair labor practice by building new production facilities for the 787 Dreamliner in South Carolina instead of the Puget Sound region. As a remedy, Solomon seeks to force Boeing to build production facilities in Washington State, even though the company has already invested an estimated $2 billion in South Carolina and hired 1,000 employees.

Kirsanow explained that in typical “runaway shop” cases, an employer decides not to bargain with a union about the company’s decision to move from an existing unionized location to a non-union one: “In such a circumstance, if the employer failed to bargain with the union where labor costs were a consideration, then he has committed an unfair labor practice. And there IS a restoration remedy, that is, the board has the right and ability to order the employer to resume or return to the status quo and continue bargaining with the union.”

But Boeing’s construction of a new production line in North Charleston, S.C., did not transfer existing union jobs or move equipment from Washington, Kirsanow said. In fact, the International Association of Machinists and Aerospace Workers have added some 2,000 union jobs in the Puget Sound area.  Kirsanow continued: (continue reading…)

The National Labor Relations Board continues pose many challenges to employers and employees alike with its recent actions involving several cases and proposed rulemakings. Just last week the National Association of Manufacturers submitted formal regulatory comments to the Board that question its authority to issue regulations that would require almost all employers to post or otherwise communicate a biased notice of unionization rights to their employees.

Now the Board continues to hear cases that could set troubling legal precedent and shift longstanding interpretation of labor law. One such case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, 356 NLRB No. 56 (2010). This case is important because it is “representation case”, meaning that there will be no opportunity for direct judicial review and the Board could begin applying its decision immediately in other cases.
The Board’s ruling is expected to reverse 50 years of case law by radically changing the standard for determining an appropriate bargaining unit for all of the estimated six million workplaces covered by the National Labor Relations Act. The key issue is whether employees performing the same job at a single facility presumptively constitute a bargaining unit for organizing purposes, irrespective of any commonality those employees share with other employees outside the proposed unit.

Former NLRB member and labor law expert extraordinaire Pete Kirsanow recently commented on the impact of this case in National Review Online’s The Corner blog. In his piece, Kirsanow explains how this case could ultimately skew U.S. labor law to make it much easier for labor unions to organize workplaces.

Kirsanow identifies other implications. The case could:

• Increase the probability that a workplace will have multiple bargaining units representing different classifications of employees; e.g., one unit of, say, two set-up men, another unit of six press operators, yet another unit of three welders, a separate unit of four packers, etc. etc.
• Increase the probability that a company’s employees will be represented by — and the company must bargain with — multiple unions, e.g., the UAW in one part of the plant, the Teamsters in another, and the SEIU in a third.
• Increase the probability that an employer would have to manage separate work schedules, grievance procedures, wage schedules, and benefits packages for various bargaining units in a single workplace.
• Increase the man-hours a company spends on personnel matters such as discipline, grievances, arbitration, and bargaining.
• Reduce management’s flexibility in matters such as hiring, work assignments, transfers, promotions, layoffs, and overtime.
• Reduce productivity and increase costs
• The Board has historically applied a clear set of standards to determining a unit appropriate for bargaining – this case would turn those standards upside down. We hope that board will adhere to longstanding precedent when determining this case.

More responses to the Washington Post’s editorial criticism of the Coalition for a Democratic Workplace and the NAM and Chamber for refusing to “compromise” on the Employee Free Choice Act.

From James Sherk, Heritage Foundation, in today’s Foundry blog, “What Employer Advantage?”:

[As] I have written before, labor law heavily tilts the scales in favor of unions during organizing drives:

• Unions control the election timing, so workers do not vote until union support peaks.
• Employers rarely learn of the organizing drive until unions ask for an election, so unions have months to build support while employers have just one month to present the other side.
• Employers may not ask employees if they support the union. Unions may ask employees how they will vote and focus their efforts on persuading undecided workers.
• The law severely restricts employer speech while allowing unions to say almost anything they want. Employers may not promise to improve working conditions if workers vote down the union. The union may promise anything it wants, even if it knows it cannot keep those promises.
• Employers may not even ask workers what problems they have in the workplace and why they want a union. Unions can ask workers about anything they want.
• Unions may not campaign while workers are on company property and on company time. However the company must give unions the addresses of every worker and unions can visit workers at their homes. Employers are legally prohibited from visiting workers homes to campaign.

And from Peter Kirsanow, former NLRB member, “EFCA Compromise Nonsense“:

First, the idea that the EFCA amendments presently being floated constitute a “compromise” is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The “compromise” is merely a recognition among Democrats that they can’t muster the needed support for EFCA from within even their own ranks.

Second, the allegedly “unfair barriers” to unionization that the WaPo laments were in place 50 years ago when unions represented 35% of the private-sector workforce. They were in place 30 years ago when 24% of the workforce was unionized. And they’re essentially the same today when only 7.5% of the workforce is unionized. Did the WaPo run an editorial decrying the unfairness of the system when unions were in ascendance?

The Post started its editorial with a plea that it be heard on the issue because the paper had been critical of the labor movement in the past. When you lead off with a “we have, we hope, some standing,” that’s a pretty clear signal of a weak argument to follow.  Who cares what standing you have? The issue of any editorial is whether you make your case.

Peter Kirsanow, Cleveland attorney and former member of the National Labor Relations Board, has some thoughts on what Senator Specter’s switch means to prospects for the Employee Free Choice Act and organized labor’s politicking this Congress. From The Corner:

Specter’s announced opposition to card check gave cover to a few Democratic senators to express reservations concerning the provision. Now that Specter’s a Democrat and  a Democrat-only cloture vote is a numerical possibility (i.e., should Franken prevail), the pressure on Democrats to pass EFCA (with card check) increases. They can no longer give Labor the excuse that Republicans can block cloture.

 

It wouldn’t be surprising to see Specter conclude that the economy is, in fact, beginning to improve — far sooner than most economists had expected. That would permit him to reconsider his opposition to card check.

 

Even less surprising would be some movement on an EFCA bill containing quickie elections and equal access.

Peter Kirsanow, a Cleveland attorney and former member of the National Labor Relations Board, is a keen observer of both the legal and political aspects of the Employee Free Choice Act, so we take his latest commentary at National Review’s The Corner seriously. It’s speculation, to be sure, but worth considering.

Kirsanow suspects the references in Senator Specter’s announcement about “equal access” could be the signs of what labor would call a “compromise” in the making.

From “The EFCA-Lite Trap“:

The timing of Senator Specter’s remarks is interesting. When EFCA was reintroduced in both Houses two weeks ago, Senator Harkin repeatedly invoked “equal access,” as if to signal a possible compromise based on that concept. Almost contemporaneously, Representative Sestak (D, Pa.) introduced an alternative bill that featured equal access. Last weekend, compromise proposals were floated that incorporated some of the elements Sen. Specter would be willing to consider, including equal access. And SEIU president Andy Stern (possibly the most influential EFCA supporter) is quoted in the current issue of Business Week as understanding that EFCA might need to be changed to secure passage.

It’s doubtful this flurry of activity is mere coincidence. The EFCA campaign is about to proceed to another level. Employers should be prepared to address the implications of quickie elections, equal access, and limited-interest arbitration — the combination of which would amount to “EFCA Lite.”

The elimination of secret-ballot elections was the big drag on EFCA’s prospects for passage. Now that card check may be off the table, EFCA opponents have lost their most effective talking point. Consequently, wavering senators may now be more inclined to vote for the remaining provisions of EFCA, plus quickie-election/equal-access provisions that make union organization almost as easy as card check.

Senator Specter’s announcement merely concludes Round Two.

Kirsanow is reading too much into the flurry, we think. Rep. Sestak (D-PA) introduced his bill (H.R. 1355) a week before card check, had no cosponsors, heard from the unions and cosponsored EFCA (H.R. 1409). Not really a factor.

Business groups like the NAM and our allies at the Coalition for a Democratic Workplace are NOT declaring victory and surrendering the playing field to organized labor on the bill. The unions, meanwhile, will set their sites on Senate elections 2010 in an attempt to get to 62 or 63 Senators and then ram the bill through.

Yes, efforts will likely continue to pass other bargaining-related legislation this Congress. Still, it’s our sense that Sen. Specter’s decision now frees up organized labor and their congressional allies to pursue other parts of labor’s agenda — things like paid family and medical leave, comparable worth and even new ergonomics standards. Even while the Employee Free Choice Act was being fought over prior to its introduction, organized labor was winning many legislative fights — such as inclusion of Davis-Bacon wage provisions in the stimulus bill. Card check remains a fight, but different battlefields are coming into view.

The so-called Employee Free Choice Act takes center stage this week on America’s Business with Mike Hambrick.

President-elect Barack Obama cosponsored this bill as U.S. Senator and organized labor has made its passage a top priority. Senator Saxby Chambliss (R-GA) is on the program to share his strong opinion on the bill, which would eliminate secret ballot elections in the workplace when unions attempt to organize a business.

Senator Chambliss said of the bill, “That’s the most dangerous piece of legislation that we may deal with in the session of Congress and I expect we will have it on our plate early in the process.” Chambliss also talked about his recent run-off victory in Georgia.

Here to explain some of the finer details of the Employee Free Choice Act is attorney Peter Kirsanow.  This former member of the National Labor Relations Board says the legislation contains provisions beyond the secret-ballot-attacking “card check” that could cause major headaches to business owners in America

The Employee Free Choice Act isn’t the only troubling labor bill on the horizon.  The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act are also approaching.  With innocuous sounding names these bills sound good and just, but that just isn’t the story.  Here to explain what these bills could do to employers across America is Congressman John Kline (R-MN).

Back again for part two of a discussion on China’s economy and global impact is Atlantic Monthly’s James Fallows.

Find out about a small business that is doing very well by finding a large market by exporting.  We’ll speak with Ray Heelan, President of Allegheny Coupling Company in Warren, PA, to find out how to best start an exporting relationship with other countries

In our regular segments, Renee Giachino of American Justice Partnership gives us the latest on tort reform and commentator Hank Cox recalls “The Way It Was.” And the National Association of Manufacturers President Gov. John Engler will close the program with “The Last Word.” For more on America’s Business go to www.AmericasBusiness.org.

Cleveland attorney Peter Kirsanow, a former member of the National Labor Relations Board, reads the Washington Post editorial based on yesterday’s visit by President-elect Barack Obama and finds his comments on the Employee Free Choice Act not that reassuring…at all.

From “Employee Free Choice Act—Current State of Play“”

While Congress may try to accommodate Obama by not raising this contentious issue early in his administration, Democrats in Congress are under considerable pressure to take up EFCA as soon as possible. Just a few days ago, one union alone (the Service Employees International Union) announced that it was committing $50 million toward, among other things, passage of EFCA.

Unions understand that the planets won’t align for them like this again. This may be their last best opportunity to reverse the steep decline in private sector union membership. They’ve spent extraordinary resources in support of candidates favorable to the labor agenda and they’re lobbying Congress furiously to get EFCA passed. They won’t back down.

Now, Obama’s “willingness to consider other mechanisms” may indicate that some of the amendments to EFCA I’ve discussed previously might be in play. But even those amendments would radically change the labor landscape in a way that will present profound challenges to employers. Consequently, most alert employers are continuing to both make preparations for EFCA’s passage and lobby senators (Republicans and right-to-work/red-state Democrats) to defeat it.

EFCA is the proverbial freight train coming down the tracks. It may have slowed momentarily, but if employers don’t work incessantly to halt it, it will have a big impact at the first junction or the next.

Marc Ambinder at The Atlantic posts excerpts of the Obama-Post transcript, and in our reading he does seem more favorable to EFCA than we got from the Post’s interpretation. He seems to dismiss business’ argument that card check would harm the economy out of hand.

Kirsanow is a guest this week on America’s Business with Mike Hambrick, talking about card check. (The program will be up this afternoon.) He’s really kept up a steady stream of high-quality commentary on EFCA and labor’s agenda at The Corner, including “Laboring under Obama.”

At National Review’s The Corner, there are several good posts refuting organized labor’s claim that the Employee Free Choice Act will still allow secret-ballot elections. In theory, yes. In the real world, of course not. Never, ever.

House Majority Leader Steny Hoyer tried to sell the unbelievable argument in the otherwise obfuscation-free interview Sunday on Fox News. (Passage here.) Former NLRB member Peter Kirsanow responds here.

Rep. Hoyer’s assertion on Fox News Sunday that EFCA wouldn’t eliminate secret ballot union elections but would present merely an alternative method for union certification is accurate. It’s also wildly disingenuous. No union, upon obtaining the requisite 50% +1 of union authorization cards, is going to petition for an election when at that point the union can be instantly certified under EFCA.

Hoyer knows perfectly well that employees may act differently in the privacy of the voting booth than when asked to sign a card in the presence of co-workers and union agents. Unions know this, too. That’s precisely why EFCA would cause the extinction of secret ballot union elections.

The good news for EFCA opponents is that if this is Hoyer’s best defense of EFCA, he knows the bill’s got problems.

See also these comments.

In a separate post, Kirsanow makes the important point that the “card check” component of the Employee Free Choice Act is not the only objectionable provision, and indeed, the binding arbitration requirements also make the legislation unacceptable.

For some time, experts close to the EFCA debate have maintained that the strategy of EFCA proponents was to compromise on either the bill’s card check provision or the mandatory arbitration provision in order to enhance the probability that at least one of those provisions would pass. Some contended that mandatory arbitration was always the principal goal of EFCA supporters.

Doubt it has ever been the principal goal, but binding arbitration is clearly a priority for labor. We covered that part of the debate here.

A former NLRB member and now labor lawyer, Peter Kirsanow blogs over at NRO’s The Corner , noting the NAACP’s endorsement of the Employee Free Choice Act and pointing out some of the consequences of a card check system that its proponents  might not have considered.

Joe is one of 7 blacks out of 38 workers at a casting plant. He doesn’t have much seniority because he just came to the plant after working for the last 12 years at a bearings manufacturer that recently closed.

 Joe suspects most of his co-workers don’t want a union because they’ve seen other plants in the area shut down operations and move to states with lower average labor costs. Joe’s in favor of the union because he thinks it will mean higher wages for someone like him.

 Joe’s the only black employee on second shift. At lunch one day, a co-worker approaches him and in front of everyone in the break room asks Joe to sign an authorization card. Joe begins to reach for a pen but hesitates when he senses his co-workers watching him. He declines to sign.

 EFCA could put any employee in the uncomfortable position of making a public declaration that might be opposed by his employer, co-workers, or union organizers. The fact that the employee is new or a minority in the workplace doesn’t do much to lessen that discomfort. You’d think that if any organization would recognize that fact it would be one that purports to advance the interests of minorities.

It’s unfortunate that groups like the NAACP who have been such adamant champions of protecting voting rights would now wish to  abandon the secret ballot, in the process exposing workers to intimidation in the workplace.

Other news items related to the misnamed Employee Free Choice Act (EFCA) have popped up recently.

• Peter Kirsanow follows up his recent post on NRO’s The Corner with additional information on the impact of the binding arbitration language in the so-called Employee Free Choice Act. Kirsanow highlights that if EFCA passes, federal arbitrators will set the terms of the first labor agreement, preventing workers from having a true contract. Rather, it will be a binding measure that employees will be forced to accept.

• Thomas McClanahan with the Kansas City Star analyzes the economic impact if EFCA passes. McClanahan attests that under EFCA productivity is sure to drop and economic growth will be hindered.

UPDATE (4:50pm)

• The third piece in Kirsanow’s series in NRO’s The Corner discusses the Canadian model of labor law. Under the Canadian system, provinces can choose to employ card check. Kirsanow points out that since 1980, most Canadian provinces have abandoned card check and have moved to secret ballot elections.