Labor Issues For Labor Day and Beyond

By Todd A. Leeson  

It has been an eventful summer for labor unions.  As we approach Labor Day, this article summarizes several recent developments involving unions.   

AFL-CIO Aggressively Supports John Kerry for President   

As you probably know, the AFL-CIO and its affiliated unions have been spending millions of dollars in their high-profile support of John Kerry.  According to AFL-CIO President John Sweeney, the “labor movement has never been more united or working harder for a presidential candidate.”  If President Bush is reelected, it will be another defeat for the AFL-CIO.  (Indeed, the AFL-CIO is being criticized by several competing union groups such as the New Unity Partnership (NUP).  NUP bluntly states that the AFL-CIO is out of touch and ineffective.  Look for a real shakeup in the union ranks if President Bush wins.) 

While Union Membership Continues To Decline, Unions’ Election Win Rate Increases   

The number of union elections held in 2003 was 2,333 which was down from 2,723 elections in 2002.  However, unions won almost 58% of all elections held in 2003.  In Virginia, there were 20 elections in 2003, down from 33 elections in 2002.  Last year, unions won 14 out of the 20 elections in Virginia (70%). 

While the overall picture for unions continues to be bleak, they still win more than half of all elections.  Company executives and supervisors cannot let their guards down.  Please ensure that your managers are trained in union free management and are on the lookout for any signs of union organizing at your company.  

Escalating Controversy on “Neutrality” and Card Check Agreements 

As you may know, the latest union organizing tactic is to exert pressure (often indirectly) on companies to agree to so called “neutrality” agreements, a component of which is to allow union recognition on the basis of a card check as opposed to a secret ballot election.  This practice has proven to be very controversial.    

Stay tuned as the Labor Board will provide some guidance on these issues in the near future.  In addition, there are competing bills in Congress.  The outcome of the November elections will also be critical as to this issue.  (As an aside, it is interesting to hear union leaders and Democrats argue that the best way to determine employee “free choice” is to deny them the right to a secret ballot election supervised by the NLRB.  In contrast to this view, 84% of union members surveyed by Zogby in June opined that workers should have the right to vote on whether they want to belong to a union.)   

NLRB and Courts Continue to Decide “Salting” Cases 

Another union organizing technique is to have paid union organizers apply for jobs with companies a union seeks to organize.  If the organizer is hired, he seeks to organize the employees from within.  If the organizer is not hired, he often files an unfair labor practice charge with the NLRB.  In a case decide July 30, the NLRB, in a 2-1 decision, concluded that the company lawfully refused to hire 9 union-affiliated applicants because the evidence showed that the company had “neutral hiring polices, uniformly applied,” such as hiring applicants likely to accept pay within a targeted wage range and hiring applicants referred by other employees.  American, Inc., 342 NLRB No. 76 (July 30, 2004).  As these cases are decided on the facts, please consult with your counsel if this is a matter that may impact your business.   

NLRB Concludes That Graduate Student Assistants Are Not Statutory Employees

There have been some union organizing campaigns by graduate students assistants at several colleges.  In July, the NLRB, in a 3-2 decision involving Brown University, concluded that graduate student assistants are not employees under the National Labor Relations Act.  Brown University, 342 NLRB No. 42 (July 13, 2004).  (In so holding, the Board overruled a case it decided in 2000).  This important decision should put an end to union organizing on college campuses by student groups.

NLRB Also Rules That Employees in a Non-Union Workplace are Not Entitled to Have a Co-Worker Present at a Disciplinary Interview

In another reversal of a controversial decision by the Clinton Labor Board, the NRLB in a 3-2 decision, overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), and concluded that employees who work in a non-unionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a co-worker accompany them to a disciplinary interview with their employer.  IBM Corp., 341 NRLB No. 148 (June 2004).



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