Tuesday, August 31, 2010

The Obama NLRB Starts Flexing Its Muscles

NLRB Some of the last cases in which Member Schaumber took part in are now coming out, and there's some interesting ones.  Here are a few notables:

UGL-UNNICO -- granting review of election decision as means to reconsider successor bar doctrine (i.e., the Board is getting ready to reverse MV Transportation's rebuttable presumption of majority to support and go back to its St. Elizabeth's Manor rule, which had a approximately six-month bar).  The Board also invited briefs on the issue.  Check out Schaumber's scathing dissent, which indicates amnesia affecting his memory of September 2007 among other things.

Independence Residences -- the Board addressed the effect NY State's law against an employer using state funds to encourage or discourage union activity on an election.  Assuming that the state law is preempted, the majority concluded that it did not justify overturning the election.  This was based on the ability to use funds to oppose a union and--the most convincing to my mind--the fact that concluding otherwise would be grounds for invalidating all elections in NY (at least the ones that unions won) as long as the state law was in force.  Here's the Board's news release on the case.

Lamons Gasket -- requesting evidence of parties' experience with Dana Corp. (in which the Bush NLRB restricted the voluntary recognition bar).  The bulk of the opinion is Schaumber and Hayes' defense of Dana on the merits, and Liebman's response in seeking more info (although her opposition to Dana is no secret).

What I find particularly interesting is the degree to which that Schaumber in particular objects to even the potential of reversing Board precedent.  The flip-flopping is a well-known aspect of Board law and both sides have always screamed some about it when they're in the minority.  But in some cases, the Bush Board reversed several decades of unchanged Board law, so his objection to flipping cases only a few years old sounds especially hollow.

Hat Tip:  Patrick Kavanaugh



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"his objection to flipping cases only a few years old sounds especially hollow."

Not quite so hollow, however, as the complaints about Dana. If the statistics cited by Liebman are correct --- and I have no reason to doubt them --- the high dudgeon of unions and their apologist over the "September massacre" is a suit than Obama's.

Posted by: James Young | Aug 31, 2010 6:35:07 PM

Correction: "a suit EMPTIER than Obama's."

Posted by: James Young | Aug 31, 2010 6:36:05 PM

File this under "elections have consequences." I am sure I will be reminded with this refrain when the FLRA inevitably swings the other direction.

Posted by: Per Son | Sep 1, 2010 7:14:59 AM

The complaints about Dana stem largely from the Board's unwarranted assertion that "there is good reason to question whether card signings ... accurately reflect employees' true choice regarding union representation." What is especially disturbing about the Schaumber and Hayes dissent is their apparent unwillingness to reconsider this assertion in the face of the empirical data that Dana itself has produced. The data indicate that 99% of the time, after workers were formally notified of their right to obtain an election following a card-check, they either took no action or voted to retain union representation. In light of this evidence, how can the Board possibly adhere to the view that there is reason to doubt whether card signings accurately reflect employees' true choice?

Posted by: Andrew Strom | Sep 1, 2010 7:16:50 AM

Oops . . . I meant NLRB.

Posted by: Per Son | Sep 1, 2010 11:44:13 AM

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