In the NLRB’s report, Lafe E. Solomon, the Acting General Counsel states

Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, the coercive impact of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

In four cases cited in the report, the NLRB concluded that employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases, the NLRB found that the employees’ posting activity was not protected concerted activity.

The NLRB also determined in one case that a union engaged in unlawful coercive conduct when it interrogated employees at a nonunion jobsite about their immigration status, recorded the interrogations, and posted an edited version of the recording on YouTube and the Union’s Facebook page.

In five cases, the NLRB concluded that the employers’ social media policies were unlawfully overly-broad. Lastly, in one case, the NLRB found that an employers’ rule restricting employee contact with the media was lawful because the policy could not reasonably be interpreted to prohibit employees from speaking on their own behalf with reporters.

Employers should review this report before taking any adverse action because of an employee’s social media posting or creating a new policy concerning social media.

The NLRB’s report is available here.

Loparex LLC owns multiple production facilities scattered across the country where it manufactures polycoated and silicone-coated papers and films.  Among its locations, Loparex owns and operates a small manufacturing plant in Hammond, Wisconsin.  When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace.  Then, when the company announced several controversial employment policies a small group of employees renewed their efforts to unionize the plant..

Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex’s parking lot, but they were stopped by company officials.  Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.  When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy.  Management also discouraged employees from talking about the union during working hours.  Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.  Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. 

Loparex’s actions were brought to the attention of the NLRB, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act,§ 8(a)(1), 29 U.S.C. § 158(a)(1). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. The ALJ, in November 2008 found that Loparex had violated the Act in several ways:  (1) by promulgating its bulletin board policy because of antiunion animus; (2) by announcing unlawfully broad constraints on employee communications relating to unionization; and (3) by treating shift leaders as though they were supervisors under the Act.  Loparex eventually petitioned the court to set aside the Board’s decision. 

Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Loparex generally permitted employees to use bulletin boards for a variety of non-work purposes but shut off access in response to union organizing activity.  Accorining to the Court, the critical question was whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Here the ALJ and Court of Appeals found that while the policy itself was facially neutral, Loperex failed to provide evidence that it was not implemented in response to the organizing efforts.  The same thinking led the Court to find that the constraints on employee communications were unlawful.  By purporting to restrict distribution in non-work areas, during break times, Loparex stepped over the line.  “[A] rule is presumptively invalid if it prohibits distribution on the employees’ own time.”

Finally, Loparex, in the midst of the union organizing activities, decided to re-classify its shift leaders as “supervisors” within the meaning of the Act and thus prohibited from engaging in union activities.  To prove that employees qualify as statutory supervisors, an employer has the burden to prove: “(1) [the employees] hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.”  Loparex argued that shift leaders qualified as supervisors because they had the authority to responsibly direct employees and assign them work.  The Court did not agree.  The shift leaders’ method of assignment was routine and clerical in nature; therefore, the Board acted within its authority when it concluded that Loparex’s shift leaders did not exercise the requisite independent judgment to qualify as supervisors under the Act.

Loparex v. NLRB, Case Nos. 09-2187, 09-2289, U.S. Court of Appeals for the Seventh Circuit, December 31, 2009.

Contributed by Michael Wilson Stoker

Suzi Prozanski, a copy editor at the Register-Guard, a newspaper published by the Guard Publishing Company, was disciplined for sending union-related e-mails on the company’s computer system in violation of company policy.  The Register-Guard’s e-mail policy prohibited use of the company’s communications systems to “solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”  Despite this policy, Register-Guard employees often used the e-mail system for personal purposes—for example, to send birth announcements and party invitations—and were not disciplined.

In addition to being a copy editor, Prozanski was also president of the union that represented about 150 Register-Guard employees.  In May 2000, Prozanski sent an email on the company’s e-mail system to union employees to “set the record straight” regarding a company e‑mail warning employees to avoid a union rally that would supposedly attract anarchists.  Prozanski’s email suggested that the company’s e-mail was not entirely accurate.  Prozanski received a disciplinary warning the following day stating that she had violated the company’s e‑mail policy.  In August 2000, Prozanski sent company employees two more emails, one encouraging them to “wear green” to show support for the union’s position in contract negotiations, and another asking for volunteers for an upcoming union parade.  Prozanski received another disciplinary warning following the two emails.  In September, the union filed a charge with the National Labor Relations Board (“NLRB”) alleging unfair labor practices.

The NLRB asserted that the company had violated the National Labor Relations Act (“NLRA”) by “maintaining, promulgating, and enforcing an overly broad no-solicitation policy” and by “discriminatorily enforcing” the policy.  The Administrative Law Judge (“ALJ”) found that the company had not violated the NLRA by maintaining its no-solicitation e-mail policy, but that it had violated the Act with respect to disciplining Prozanski for both the May and August e‑mails.  The ALJ determined that Register-Guard had applied its no-solicitation policy in a discriminatory manner by prohibiting union-related e-mails while allowing other non-work related e-mails.  On review, the NLRB agreed with the ALJ’s determination that the company had engaged in an unfair labor practice by disciplining Prozanski with respect to the May e-mail, but that the August e-mails did constitute solicitations because although the company permitted personal e-mails, there was no evidence that the company allowed employees to solicit other employees “to support any group or organization.” 

On appeal to the D.C. Circuit, the union argued that the company applied its e-mail policy in a discriminatory manner with respect to both the May and August e-mails.  The court began by stating that “a valid no-solicitation rule applied in a discriminatory manner or maintained for discriminatory reasons may not be enforced against union solicitation.”  The court found that there was substantial evidence to support the determination that the company’s discipline of Prozanski with respect to the May e-mail was discriminatory.  The court stated that the company’s no-solicitation policy did not cover the May e-mail because the e-mail was not a “call for action;” rather, it was simply an attempt to clear up the facts surrounding an earlier communication.  Further, the court found the fact that the company permitted other non-work related e-mails was evidence that the company was discriminating against union-related content.

With respect to the August e-mails, the court found that the NLRB’s determination was not supported by substantial evidence.  The court agreed that the e-mails constituted solicitation, as they “called for employees to take action in support of the Union,” but the evidence showed that the company permitted personal e-mail solicitations for things such as sports tickets and similar items.  The court noted that the company’s policy did not distinguish between such individual solicitations and solicitations for groups and “outside organizations.”  The court also found significant that the only employee e-mails that had ever led to disciplinary action by the company were the union-related e-mails at issue.

Contributed by Claudia L. Guzman

A.T. Massey Coal Company, the parent company of Spartan Mining Company, acquired the assets of Cannelton Industries and Dunn Coal and Dock (Cannelton/Dunn) in a bankruptcy.  Spartan Mining does business as Mammoth Coal Company (Mammoth).  After Massey assigned these assets to Mammoth, the subsidiary took over operation of the mining facilities on the Cannelton/Dunn property.  Mammoth interviewed and hired most of the non-bargaining unit employees.  In contrast, interviews and offers were not extended to laborers who were members of United Mine Workers of America (UMWA).  Mammoth hired inexperienced employees from its nearby property, in spite of labor shortages there as well.  UMWA filed an unfair labor practice charge with the NLRB.  After investigation, the General Counsel filed a complaint with the Board against Mammoth for violating the National Labor Relations Act (NLRA).

After an extensive 16-day evidentiary proceeding regarding the complaint, an administrative law judge (ALJ) found Mammoth had violated the NLRA.  According to the ALJ, Mammoth violated §§ 8(a)(1) and 8(a)(3) of the NLRA, 29 U.S.C. §§ 158(a)(1), (3), by “discriminatorily refusing to hire union employees of Cannelton/Dunn in order to avoid obligation to recognize and bargain with the union.”  There was support for prima facie discrimination, including circumstantial evidence and overt anti-union statements by Mammoth officials.

The ALJ order included broad relief, immediate employment offers and back pay for discriminatees, recognition and bargaining with the union, rescission of unilateral changes to employment terms and conditions, and remission of all wages and benefits Mammoth would have paid absent discrimination.  Both sides filed exceptions to the recommended order and the matter remains before the Board.

In the interim, the Board sought temporary injunctive relief under § 10(j) of the NLRA, which provides the Board a means to seek a court order temporarily enjoining asserted unfair labor practices.  Due to problems meeting its quorum of three members, the Board delegated powers to its General Counsel.  For personal reasons, the General Counsel recused himself and delegated his power to the Deputy General Counsel. 

After an evidentiary hearing, the district court found that limited injunctive relief was “just and proper” under § 10(j).  The court relief granted in part and denied in part, relief requested by the Board.  It ordered Mammoth to order employment to the alleged discriminatee employees, but it refused to order Mammoth to recognize and bargain with the union, post notices of the district court’s order throughout the workplace, or rescind any unilaterally imposed employment conditions.  The court found these additional measures unnecessary to preserve the Board’s remedial powers in the case.  Both sides appealed.

While the appeals were pending, Mammoth moved for a stay of the district court’s order that it offer employment to the alleged discriminatee employees.  Before the court could act on the motion, the company withdrew the motion.  After offering positions to all the discriminatees, it had been able to hire all who sought employment without terminating any employees.

Mammoth made three arguments regarding the district court holding.  First, the company argued that neither the district court nor the appeals court could decide the case because the Board improperly delegated the power for § 10(j) relief to its General Counsel.  Secondly, Mammoth asserted that the district court committed reversible error in applying an improper standard in deciding whether to grant the § 10(j) injunction.  Finally, they contended that even if the reversal (of the second argument) was not required, the district court abused its discretion in granting the Board injunctive relief.

The Court of Appeals upheld the District Court on all three points.  First, it found that the Board may lawfully delegate § 10(j) authority to the General Counsel pursuant to § 3(d) of the NLRA.  Secondly, using the four-factor equitable test of Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), the appeals court sided with the district court.  The Fourth Circuit found that no language in § 10(j) compelled a departure from the traditional four-part test for equitable relief.  Finally, the appeals court agreed with the district court’s discretion in granting limited § 10(j) relief.

In addressing the Board’s cross-appeal, the appeals court found no error in the district court holding.  The district court awarded limited injunctive relief to the Board and denied further injunctive relief.  The § 10(j) relief only “authorizes interim injunctive relief ‘reasonably necessary to preserve the ultimate remedial power of the Board and is not to be a substitute for the exercise of that power.’”

Contributed by K.C. Osuji

Despite ruling that the NLRB lacked authority to issue its ruling, the case was not a complete victory for the employer — the D.C. Circuit remanded the case in question to the NLRB for consideration once a quorum was present.

During contract negotiations between the Tampa Tribune (“Tribune”) and the union representing pressroom employees, Gregg McMillen, a pressman, made a derogatory remark about the company’s Vice President, Bill Barker.  The comment was made to two pressroom supervisors in response to a letter that Barker had sent to pressroom employees concerning his view on the union’s role in delaying the negotiations.  McMillen’s comment was relayed to the Tribune’s management, who decided to terminate him for violating the Pressroom Office Rule against abusive or harassing language.  At the termination meeting, McMillen was refused union representation.

Following his termination, McMillen filed charges with the National Labor Relations Board (“Board”) for violations of the National Labor Relations Act (“Act”), including failure to allow for union representation at the meeting and termination for engaging in protected concerted activities.  The Administrative Law Judge (“ALJ”) dismissed both charges, stating that McMillen was not entitled to union representation, and that although McMillen was engaging in protected activity when he made the statement, the statement was so “profane, offensive and personally denigrating” that it fell outside the bounds of the Act.  On appeal, the Board reversed the ALJ’s ruling on the termination charge.

On appeal to the Fourth Circuit, the Tribune made three arguments.  First, that the Board had improperly overturned credibility determinations made by the ALJ; second, that McMillen was not engaging in a protected activity when he made the statement; and third, that even if McMillen’s activity was protected, his statement was so egregious as to fall outside the bounds of the Act. 

The Fourth Circuit rejected the argument concerning the ALJ’s credibility determinations.  The court stated that the ALJ’s finding that McMillan’s statement was the reason behind his termination was not a credibility finding; rather, it was a conclusion of law that was not entitled to special deference.  With regard to the Tribune’s second argument, the court held that it would not overturn the Board’s decision that McMillen was engaging in a protected activity.  The court stated that although the activity “skirts the outer bounds of that which can be considered concerted activity,” it was not sufficient to overturn the Board’s decision as wrong as a matter of law.

Turning to the Tribune’s final argument, the Fourth Circuit held that even if McMillen was engaging in a protected activity, he lost the protection of the Act by the profane nature of his statement.  The court stated that protected activity under the Act can lose its protected status if it is “egregious or flagrant.”  In determining whether an employee’s conduct is egregious enough to forfeit the Act’s protection, the court reiterated the four-factors that a court should consider:  (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by an unfair labor practice. 

In evaluating McMillen’s conduct against these factors, the court agreed with the Board’s determination that the first two factors weighed in McMillen’s favor, and that the fourth factor weighed against him.  As to the third factor-the nature of his outburst-the court found that the Board had erred in concluding that McMillen’s statement was not so egregious as to forfeit the Act’s protection.  The court pointed to the “lack of concurrence” between McMillen’s comment and Barker’s letter regarding the negotiations, stating that the comment was an “ad hominem attack” in response to a letter that was issued legally by the company.  The court emphasized the lawfulness of the employer’s action as additional weight against finding that McMillen was protected by the Act.

Contributed by Claudia L. Guzman

The VLW Blog has a link to the affidavit of the Greenbrier’s CFO here, which outlines the numbers.  According to the CFO, the resort’s labor costs take up more than 70 percent of its revenues while the average in the industry for labor is 40 percent or less.  The resort plans to ask the bankruptcy judge to allow it to reject the labor contracts under Sec. 1113 of the Bankruptcy Code if it cannot renegotiate the contracts.

The rejection of labor agreements and pension plans through the bankruptcy process is likely to incease as more companies fail in these difficult economic times.  With situations like this unfolding, is it really the time to be putting in place pro-union legislation such as the “Employee Free Choice Act”? 

As noted in our earlier post here, the EFCA would do away with secret ballot elections for workers to decide whether to be represented by a union and replace it with a “card check.”  In addition, if the company and union fail to reach an agreement within a specified period of time, the parties would have to submit to mandatory arbitration of the labor agreement, which would result in wages, benefits and other terms and conditions of employment being dictated to the employer by a government official.

Here is the text of the House bill (H.R. 1409).  Highlights in red; our comments (opinions) in blue.

A BILL

To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Employee Free Choice Act of 2009′.

SEC. 2. STREAMLINING [FACILITATING] UNION CERTIFICATION.

(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).  [THIS IS THE HEART OF THE MATTER -- IF A MAJORITY OF THE EMPLOYEES IN THE UNIT SIGN CARDS, THE BOARD MUST CERTIFY THE UNION.  THE NLRB "SHALL NOT DIRECT AN ELECTION."]

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include–

(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.’.

 (b) Conforming Amendments-

 (1) NATIONAL LABOR RELATIONS BOARD- Section 3(b) of the National Labor Relations Act (29 U.S.C. 153(b)) is amended, in the second sentence–

(A) by striking `and to’ and inserting `to’; and

(B) by striking `and certify the results thereof,’ and inserting `, and to issue certifications as provided for in that section,’.

(2) UNFAIR LABOR PRACTICES- Section 8(b) of the National Labor Relations Act (29 U.S.C. 158(b)) is amended–

(A) in paragraph (7)(B) by striking `, or’ and inserting `or a petition has been filed under section 9(c)(6), or’; and

(B) in paragraph (7)(C) by striking `when such a petition has been filed’ and inserting `when such a petition other than a petition under section 9(c)(6) has been filed’.

SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:

(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

 (1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.’.  [THIS IS THE PROVISION THAT WILL ALLOW LABOR ARBITRATORS TO SHOVE LABOR AGREEMENTS DOWN THE THROATS OF COMPANIES THAT ARE UNABLE TO REACH AGREEMENT WITH THE UNION WITHIN THE SPECIFIED TIME PERIOD.  IN OTHER WORDS, GOVERNMENT EMPLOYEES WILL BE TELLING COMPANIES WHAT COMPENSATION AND BENEFITS TO PROVIDE THEIR EMPLOYEES -- FOR A PERIOD OF TWO YEARS.]

SEC. 4. STRENGTHENING ENFORCEMENT.

(a) Injunctions Against Unfair Labor Practices During Organizing Drives-

(1) IN GENERAL- Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended–

(A) in the second sentence, by striking `If, after such’ and inserting the following:

(2) If, after such’; and

(B) by striking the first sentence and inserting the following:

(1) Whenever it is charged–

(A) that any employer–

(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;

(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or

(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7;

while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or

(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B), or (C) of section 8(b)(4), section 8(e), or section 8(b)(7);

the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.’.

(2) CONFORMING AMENDMENT- Section 10(m) of the National Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting `under circumstances not subject to section 10(l)’ after `section 8′.

(b) Remedies for Violations-

(1) BACKPAY- Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking `And provided further,’ and inserting `Provided further, That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,’.

(2) CIVIL PENALTIES- Section 12 of the National Labor Relations Act (29 U.S.C. 162) is amended–

(A) by striking `Any’ and inserting `(a) Any’; and

(B) by adding at the end the following:

(b) Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.’.  [NOTE THAT BOTH THE NEW CIVIL PENALTIES OF UP TO $20,000 AND THE LIQUIDATED (DOUBLE) BACK PAY REMEDIES APPLY TO UNFAIR LABOR PRACTICES TAKING PLACE "WHILE EMPLOYEES OF THE EMPLOYER ARE SEEKING REPRESENTATION BY A LABOR ORGANIZATION" IN ADDITION TO AFTER RECOGNITION OF THE UNION.  IN OTHER WORDS, THE DECK IS STACKED AGAINST EMPLOYERS TRYING TO DO ANYTHING TO EDUCATE THEIR EMPLOYEES ABOUT THE DRAWBACKS OF A UNION OR TO PREVENT COERCION IN CONNECTION WITH SIGNING OF CARDS.]

More to come as the bills move through Congress.

UPDATE:  More reading — EFCA Supporters Embarassing At Hearing.

We previously commented on the EFCA here — Prepare Now for the Employee Free Choice Act.  The Wall Street Journal has an article today here on the wavering support for the bill in the Senate.

Here is the OpenCongress blog summary of the legislation:

Some of the other big news of the week will be tomorrow’s introduction (in both chambers) of the Employee Free Choice Act. At stake is the practice of card check, one of the ways employees can organize a labor union under existing law. However, the National Labor Relations Board will only certify those unions that are organized by secret ballot.

The Employee Free Choice Act would modify the card check provision, requiring the NLRB to certify unions if a majority of employees sign a card supporting the formation of a union. Pro-union advocates say the existing process of organizing by secret ballot leaves employees open to intimidation by employers, while opponents claim employees’ rights to a secret ballot would be stripped away. Both sides are weighing in heavily with advertising, and there is speculation there are not enough votes in the Senate to approve the bill.

We’ll get the bill online as soon as possible, but you can see last year’s version (which is identical in scope) and read about the efforts surrounding the EFCA in the 110th Congress at the OpenCongress Wiki.

Several blogs have posts on this topic this week:

Connecticut Employment Law Blog

Manpower Employment Law Blawg and here also.

We will post updates on the EFCA as it moves forward.

The Connecticut Employment Law Blog has commentary here.

The Manpower Employment Law Blog has commentary here.

The EEOC Press Release regarding its new Acting Chair is here.

The NLRB Press Release is here.

In Fitzgerald v. Barnstable School Committee, the Court held that Title IX of the Education Amendments of 1972 does not preclude the filing of a separate action for alleged unconstitutional gender discrimination in schools.  Justice Alito wrote the opinion for a unanimous Court. The opinion is here.

In Locke v. Karass, the Court held that public sector unions may use non-member agency fees for litigation expenses outside the bargaining unit.  The opinion is here.

Tomorrow Is “FMLA Day” – Is Your Company Ready? — Ohio Employer’s Law Blog

Top NLRB Precedents In Jeopardy Under An Obama Labor Board — Law.com

Virginia Hospital Workers Sue For Lost Wages — Richmond Times Dispatch

The item in the article that caught our attention was a comment that unions may have already started seeking employees’ signatures on authorization cards in anticipation of the EFCA’s enactment.  Once signed, the union authorization cards are good for a year.  If unions have begun collecting cards already, employers may be presented immediately with a card majority and be forced to recognize a union under the EFCA. 

The article suggests that employers consider speaking to employees about the EFCA and the affect that signing cards might have on them.  This is a good idea.  Employers have traditionally started education campaigns about the drawbacks of a unionized workforce only after being presented with a petition.  Under the new EFCA regime, it will be too late to conduct any kind of employee education once a majority of employees have signed cards.  Even companies that have not traditionally considered unions to be an issue in their workforce should consider adding to their 2009 HR agenda employee education programs regarding unionization.  Employers who do not get ahead of the curve now may be faced with union recognition and mandatory arbitration of proposed collective bargaining agreements before they know what hits them.

UPDATE (12.24.2008):  The Pennsylvania Labor & Employment Blog has a post on union authorization cards here.