LEGAL ALERT: NLRB Order Overturned in Shopping Mall Case

THE FOLLOWING LEGAL ALERT WAS WRITTEN AND SENT TO US BY JIM SULLIVAN AND CAITHLIN SULLIVAN (no relation), ATTORNEYS WITH THE BUCHANAN INGERSOLL & ROONEY

The U.S. Court of Appeals for the Second Circuit recently overturned a 2006 National Labor Relations Board (NLRB) ruling against the operator of an enclosed shopping mall in Watertown, New York. Salmon Run Shopping Center v. N.L.R.B., No. 06-4961 (2d Cir. Jul. 18, 2008). The NLRB held that the mall violated the law by denying the Carpenters Union permission to distribute two flyers to the public inside the mall. One flyer listed the benefits of union membership and the second flyer alleged that a non-union contractor doing work for a retailer/tenant of the mall did not pay "area standard" wages.

The Second Circuit took a much narrower view than did the NLRB of the so-called "discrimination exception" to a private property owner's right to deny access to its property. The NLRB held that the mall was denying the union access merely because it was a "union seeking to engage in labor-related speech." The Second Circuit, however, disagreed that the mall's actions constituted discrimination. The court noted that the material the union was distributing could fall under federal labor law protections, but stated non-employee union organizers are permitted on an employer's property for the purpose of protecting the interests of the employees they are seeking to organize, not the union's own interests. Because the union's intended audience was not employees of the mall or of its tenants, but rather was the general public, the court held that the union's right to distribute the pamphlets was extremely weak under federal law.

Through this holding, the Second Circuit joins the Fourth and Sixth Circuits in taking a narrow view of the discrimination exception to the trespass rule. The Fourth Circuit, for example, has held that proving discrimination in this context requires a union to demonstrate that the employer favored one union over another or permitted employer material while banning union material. Meanwhile the Sixth Circuit has held that permitting limited charitable or civic appeals while banning union distribution is unlikely to constitute unlawful discrimination.

Property owners, especially shopping malls, are regularly inundated with requests from organizations to distribute materials on their property. Owners need to be diligent and consistent in their treatment of unions and other organizations seeking permission to distribute literature. A key consideration is the targeted audience: When a union is targeting the general public instead of a specific group of employees working on the property, the owner's right to deny access will likely be greater. Inconsistent treatment, however, will open the door to unfair labor practice charges by unions that are denied access.

COLLECTIVE BARGAINING & MAJORITY RULE

by Charles Baird, Ph.D

Professor of Economics, Emeritus

On August 15 this year The New York Times reported that several major unions asked the National Labor Relations Board (NLRB) to force employers to bargain with them even when they represent only a minority of employees at a firm. Under the National Labor Relations Act (NLRA) an employer is forced to bargain with a union only if the union achieves majority support among its employees. Usually this majority support must be demonstrated in a NLRB-supervised secret ballot election.

In the private sector, labor unions are becoming economically irrelevant. In 2006 only 7.4% of the private sector workforce was unionized. The decline has been uninterrupted since the mid 1950s when the figure was 35%.

Although they are becoming economically irrelevant unions remain politically powerful as a special interest. For example, they have forced most Democrats in the House and Senate to support an amendment to the NLRA that would eliminate the requirement that majority support must be demonstrated by secret ballot. Instead, majority support would be assumed if the unions collect the signatures of a majority of workers. These signatures would be collected on a face-to-face basis by union organizers who don’t take kindly to not getting their way. Cynically, they call this measure the Employee Free Choice Act.

The attempt to get the NLRB to force employers to bargain with unions that do not have majority support is another attempt by unions to reverse their private sector decline. The unions expect that once they are in the door representing a minority, it will be easier to draft additional workers. If the NLRB doesn’t comply, the unions will likely force congressional Democrats to try to amend the NLRA to force minority bargaining.

Under the principle of “exclusive representation” if a union demonstrates majority support among workers it gets to represent all the workers in a firm – even the minority who don’t want union representation. I call this monopoly bargaining, for when a union has majority support it represents those who voted for it, those who voted against it, and those who didn’t vote. Individuals are forbidden to represent themselves. Unions defend this as “industrial democracy.” But democracy is a form of government, and unions are not governments. The terms and conditions of sale of one’s labor services are a private, not governmental, matter. One may choose to be represented by a union in such sales, but no one ought to be forced to do so.

The principle of freedom of association, embodied in the First Amendment, forbids government to prevent any person from associating with any willing other person (or group) for legal purposes. The word “willing” is crucial. Any A forced to associate with any B doesn’t have freedom of association. Any worker forced to associate with any union doesn’t have freedom of association.

In light of freedom of association the idea of minority bargaining, by itself, is not all bad. Of course, unions want to have minority bargaining when they don’t have majority support and monopoly bargaining when they do. But the logical flip side to permitting unions to bargain for a minority of workers who want union representation is that unions should not be permitted to bargain for a minority of workers who do not want union representation. All minorities should have freedom of association. This was the case before the NLRA, and it was called members-only bargaining.

In 1934 there was a serious strike threat in the automobile industry. The Auto Workers Union wanted the employers to grant them monopoly bargaining privileges. The auto companies agreed to bargain with the union about the terms and conditions of employment of union members, but they refused to bargain with the union concerning union-free workers. President Roosevelt, who thought a strike in the auto industry would damage the economy, imposed a strike-threat settlement based on members-only bargaining. Indeed, he went on national radio and proclaimed that members-only bargaining was the only form of collective bargaining consistent with freedom of association. A bit more than a year later he capitulated to union pressure and signed the NLRA which abolished members-only bargaining and imposed monopoly bargaining.

Mandatory good faith bargaining is another feature of the NLRA. Under normal contract law for a contract between private parties to be valid it must have been the case that all the parties consented to bargain with each other and, at the end of the bargaining, all parties must have consented to the terms of the contract. Coerced contracts are considered null and void. Under the NLRA this rule does not apply. If a union wants to bargain about something (except something that is illegal) an employer is forced to bargain on the subject. Moreover, the employer is forbidden to make any take-it-or-leave-it offers. The employer must compromise with the union. Failure to compromise is taken as proof of lack of good faith and is an “unfair labor practice.”

I have often argued that the NLRA ought to be repealed and replaced with legislation modeled on New Zealand’s 1991 Employment Contracts Act (ECA, which was repealed at the behest of unions in 2000). Under the ECA there was members-only representation. If a worker chose to be represented by a union, an employer would have to recognize the union as the worker’s representative. If the employer wanted to bargain for the worker’s labor services he would have to do so with the union. But the employer was not forced to bargain with the union or the worker himself. This is the only form of collective bargaining and union representation consistent with freedom of association. Alas, since American politics has become little more than a game of plunder of some for the benefit of others, we are stuck with the NLRA or worse for a long time to come.
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For more labor related news, go to EmployerReport.com

UNIONISM AT THE POINT OF A GUN: The Debate About Minority Unionism

It seems our blog MINORITY RULES: Unions' New Tactic to Try to Infiltrate Companies has drawn some well-thought out, as well as some irrational comments from a few of our readers--most notably from the collectivist ilk.

As most of our readers' comments (from both sides) center around the workers' rights argument only, none seem to care to comment on either the practical or philosophical justification of a government forcing an employer to recognize a minority (or, for that matter, a majority) union, which is the only way the minority unionism model could be even remotely considered, let alone be applied.

However, in response to their comments, here is where the workers would be trampled (by right and by practice) under this inane theory:

As stated on Monday, the unions' collective argument centers around employees' Section 7 Rights under the NLRA, which provide that workers can pick representatives of their own choosing...

Well, in order to do so, the workers must be convinced that a 'representative' can do better for them than they can (either individually or collectively) themselves. If this involves an external representative (i.e. a labor union), that means that the workers must be 'sold' some product that has no guarantee of actually working for them, right?

Because unions are legally allowed to mislead workers, selling workers on unions is easy (like taking candy from a baby). In fact, unions are legally alowed to make workers promises that even the organizers know are untrue. It happens all the time in today's union campaigns.

[The case law on union promises goes all the way back to 1953, for those who would argue that the sky is green.]

The hard part for the union, however, is delivering a product that actually works. Despite the fact that, after convincing workers that unions are the answer to all things bad in the workplace, unions fail today half of the time to ever get a contract for newly unionized workers. And, of the other half, how good are those contracts?

This means the union product is failing workers--and that's under the majority rules principle--after convincing workers (hook, line and sinker) to buy the product.

Caveat emptor, right, collectivists?

Now, think about it under the 'minority rules' principle of unionism being proposed.

What realistic arguments could a union organizer make to lure only a handful of workers into joining it? Either the organizer would have to be one hell of a persuader (and there are many who are), or the workers would need to be gullible enough to believe they'll have collective 'power' as a minority-represented bargaining unit.

Okay, notwithstanding the fact that today's organizers are specifically targeting workers who have limited abilities to speak English and even less understanding about unions and labor law, we'll give the workers the benefit of the doubt and suppose for a moment that the union's organizer is a good enough 'trickster' enough to make a convincing argument to a minority population of a workforce...What then?

Why would any employer agree to any proposal by a union representing only a minorty of its workers? And since a union's only real economic weapon is its ability to call workers out on strike, what good does that do?

What would this minority union do if the business owner said "no" to the minority union's demands?...Call its minority membership out on strike?

Go ahead. Then watch the minority-union leadership watch its minority membership get replaced. What has that achieved? And, wouldn't it ,therefore, seem that the minority-represented workers would have been been sold a bill of goods? Again, caveat emptor, right?

Oh, you say, the employer shouldn't be allowed to replace the workers who wish to withhold their services...We must pass a law to stop that.

Once that law is passed, unions will be able to strike to their collectivist hearts' content, right?

Or, you say, we must pass a law that binds the employer to whatever a government-appointed arbitrator decides, right?

Good. How long do you think that will last before capital says to labor 'see ya.'

But, you argue, they're already doing that!...

Yes, and have you thought about why?

Now, on to the philosophical side:

Does not the First Amendment (of which the NLRA's Section 7 Rights are based) apply to employers, as well as employees?

If workers have a freedom to associate, do employers not have the same right? If so, the freedom to associate also expressly implies a right not to associate, does it not? Does the Consitution apply only to one class and not the other? If this is the case, then one must argue, why should an employer be required to recognize any union (be it a majority or a minority) at the point of a gun (vis a vis the government)?

Before those "pro" readers, who are seemingly part of today's collectivist labor movement, get themselves into a tizzy about all that is implied in the above, consider this:

The founders of the modern labor movement never, ever wanted government intrusion into labor relations. But today's labor leaders, in their haste to have a collectivist society have all but abandoned their founder's principles.

One may ask, Why did labor's founding fathers eschew government involvement into labor relations? It's very simple: He who lives by the sword, shall die by the sword.

A word of caution: Be careful what you ask for, collectivists, you may get what it is you're asking for.

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For more labor-related news, go to EmployerReport.com

NO CARD-CHECK FOR THE UFCW? NLRB Processing Organizers' petition

This just in:

If unions are so damn good, why aren't all union organizers already unionized? Wait a minute! You mean they're not???

Apparently, Joe Hansen and his cronies at the UFCW have even more egg on their face because their NON-UNION union organizers want to unionize!

On November 27th, the General Organizers Association (a labor union in Monroe, Ohio) filed a petition with the National Labor Relations Board's Baltimore office to hold an election in order to represent the union organizers employed by the United Food and Commercial Workers (UFCW) out of Washington, DC.

Note The only Labor-Management (LM) report the Department of Labor has on the General Organizers Association can be viewed here (pdf).

Upon seeing this, several questions come to mind:

1. Will Joe Hansen and his fellow union bosses over at the UFCW conduct a card-check and invite the union in without these workers voting on it? OR...


2. Even though the UFCW wants to do away with secret-ballot elections, will the UFCW allow their union organizer-employees the luxury of voting in a secret-ballot election? AND...


3. If there is a secret-ballot election, will the UFCW bosses conduct an "anti-union campaign," just like they accuse corporations of doing?

Hmmm.

We'll just have to wait and see if the two-faced UFCW's actions mirror their public stance on letting workers pick a union without a secret-ballot in this case.

Vindication: NLRB rules IATSE & Actors Equity Lost the Joust

vin·di·cate – verb (used with object), -cat·ed, -cat·ing.

1. to clear, as from an accusation, imputation, suspicion, or the like: to vindicate someone's honor.
2. to afford justification for; justify: Subsequent events vindicated his policy.
3. to uphold or justify by argument or evidence: to vindicate a claim.
4. to assert, maintain, or defend (a right, cause, etc.) against opposition.
5. to claim for oneself or another.

We hate unfinished business. Unfinished business is a distraction that we seldom have time for. Well, this week some unfinished business is finally finished. A kingdom restored, a castle secure for the time being.

Since we were raised in, come from and are accustomed to encountering today's labor unions (which seem to be more prone than ever to lie, manipulate the truth, and replace reality with fantasy), to us, this saga is filled with more than its share of treachery, deceit, double agents and ignoble characters.

In the early fall of 2006, an NLRB election was held at a client that has knights and squires and swords and shields and kings and princesses and wizards and serfs and wenches and horses and other asundry things medieval. In the aftermath, wherein the Actors' Equity Association and IATSE (serving as joint petitioners) narrowly lost, the unions accused us of doing all sorts of sordid things to sway the votes of employees.

As we prefer to avoid fantasy and deal in the truth and facts, and having been involved in a few hundred election campaigns against bigger and more respected unions, it was interesting (to say the least) to hear the fantastical and preposterous things that the petitioners accused us of committing.

The unions filed a number of objections to the election and, in order to clear our names, reputation, as well as defend our client, we were required to testify at an NLRB hearing before a board agent who was nothing more than a dolt (at best).

[In fact, and as a side note, an attorney friend had said before the hearing that the board agent in question had "never met a union he didn't like." So we knew going in that objectivity was not on our side.]

Well, the hearing resulted in the board agent dismissing most of the objections, but sustaining one and, therefore, he ordered the election to be set aside.

What was the one thing the board agent stated that yours truly did? Allegedly, yours truly stated the company "would" drag out negotiations for more than a year and, therefore, created the impression that it would be futile for the employees to select the union as their bargaining agent.

Of course, it was bulls**t.

The meeting in question was a participatory exercise conducted, quite literally, thousands of times with workers to explain the language subjects that are part of a collective bargaining agreement. As part of the exercise, language articles such as union security clauses, dues check off, management rights and a host of other language articles are discussed and explained.

What's more, the discussion itself (involving a hypothetical employer, union an group of employees) culminates in an agreement before a year. This alone would seemingly negate the unions' assertions. However, not in the eyes of the union-friendly dolt of a board agent, as the illogic of the unions' claim was apparently way over his head.

[What was even more interesting is that the unions' witnesses could not even recall the definitions of the above-referenced topics that were explained to them a mere month and a half earlier--only that they were told the company "would drag out negotiations for more than a year."]

As stated above, the dolt ruled against us. So, the client's counsel rightly filed an exception (an appeal) to the dolt's decision to the NLRB in Washington, rather than give in to the subjectivity of a wrongly decided determination.

As was their right, the petitioners' counsel filed a brief to our client's exceptions.

Upon our reading the petitioners' Brief in Opposition the Employer's Exceptions... we were aghast at what we felt was a furtherance of pure fantasy, which prompted us to write a letter to the petitioners' counsel.

[Apparently, our letter struck a nerve, for we heard that the petitioners' counsel squealed like a pig.]

In the months that followed, it was often asked, when will there be resolution to this?

Patience, was our advice. The wheels of justice are sometime slow, we stated.

However, we too were beginning to wonder just how long it would take for the NLRB in Washington to issue its decision and rid us of this unfinished business.

Well, this past Tuesday, we received notification that the NLRB issued its decision, overruling the dolt of a board agent and finally certifying the election.

As reported in the Daily Labor Report, even dissenting NLRB member Dennis Walsh stated that yours truly "is an experienced antiunion consultant..."

[A back-handed compliment from a pro-union Board member?]

Walsh observed that "List said nothing to indicate that [the employer] would eschew the bargaining approach he laid out." [Emphasis added.]

That's what we've been saying for nearly a year!

Oh well. At last, we are vindicated. It is finished.

The Left & Their Lies...

There they go again! Whether you call it a deliberate misrepresentation of the facts, a fib, a lie, or just plain old Left-Wing Propaganda...the Progressives** are once again not telling the truth!

In today's People's Weekly World, as well as on the International Labor Communications Association website, under the heading "NLRB opens new attack on unions" the writers blatantly misrepresented a recent National Labor Relations Board decision as opening "the way for decertification of unions even before the first contract negotiated by a union and approved by the workers takes effect."

As our interest was piqued when we saw this wild assertion, we quickly investigated and realized these left-wing dolts don't know what they're talking about...and clearly, don't know the difference between a decertification election and a deauthorization election.

Here's the REAL scoop:

Back in October, 2005, a company called Convenant Aviation Security agreed to deny their employees the right to a secret ballot election and agreed to recognize SEIU 790 through the often coercive card-check process. The union gained recognition by getting 55% of the 1,010 employees to sign union authorization cards.

In December 2005, the Company and union reached a first contract and the union had the contract ratified with a vote of 378-229 (or 37% of the total bargaining unit).

The contract contained a Union Security Clause, also known as a forced dues clause or "union income security clause," which forces employees to pay dues to the union or be fired from their job.

A number of employees signed a petition seeking to remove the union security clause from the contract. The legal question that arose was whether the signatures gathered were valid, since a majority were gathered before the union had gotten its contract.

After the San Francisco region of the NLRB denied workers their right to vote on deauthorizing the union income security clause, they appealed to the NLRB in Washington. Nearly a year and a half later, the NLRB ruled:

After carefully considering the language of Section 9(e)(1), the legislative history behind that statutory provision, and Board law governing deauthorization elections, we believe that requiring the signatures underlying the showing of interest to postdate the effective union-security provision here would unjustly impede the right of employees to deauthorize a union shop

That's it...

No decertification...Just workers getting the right to choose whether or not their union should get the right to get them fired for refusing to pay the union.

End of story...

In the meantime, however, the wacky "progressive" writers at People's Weekly World, as well as International Labor Communications Association are either deliberately misleading readers or are too stupid to check the facts before writing their story.

In either case, it would appear that giving workers the right to choose where their money goes is somehow "anti-labor" as the PPW writer stated in his piece.

** Editor's note: the term "progressives" can literally be read as socialists, anarchists, leftists, communists, Democrats, Liberals, or whatever other moniker they choose to call themselves these days--and it often changes daily and by audience.

NYT on the Employee Free Choice Act: All the Pro-Union Lies Fit to Print

There is a blog worth checking out called The Union-Free Employer, ran by the attorneys at Kreitzman, Mortensen & Borden. Although we don't know them personally, we are fast becoming fans of their blog posts.

Their most recent one entitled NEW YORK TIMES ON THE EMPLOYEE FREE CHOICE ACT: ALL THE PRO-UNION LIES FIT TO PRINT? is an excellent piece that debunks much of the pro-union bunk (read bulls**t) that Congress has bought into, as well as the union 'spin' that the media is echoing from the halls of the AFL-CIO.

Included in the debunking is the oft-quoted Kate Brofenbrenner "study," which nearly all of the unions use in attempting to convince Congress (which they've succeeded thus far) and the public that companies are bad and the unions are being undermined at every step of the organizing way.

As you read their blog, there is another factoid that people seem to be missing in the EFCA debate and that is that unions are currently winning nearly 60% of the NLRB-conducted SECRET-BALLOT elections, according to NLRB stats from the last couple of years.

Enjoy their blog, then pass it along!