• On the 120th Labor Day since its institution in 1884, union leaders are using political action, structural reform and new organizing tactics in a desperate attempt to increase dwindling numbers. Some examples: the American Federation of State, County and Municipal Employees has pledged $40 million to election efforts; the AFL-CIO, $44 million; and the Service Employees International Union, a whopping $65 million. The in-kind contributions made by unions toward voter registration and getting voters to the polls are huge. Democrat Vice Presidential candidate John Edwards assured the AFL-CIO Executive Council in August that he and John F. Kerry would support organizing neutrality and card-check recognition legislation, and a ban on permanently replacing strikers. The Democrat platform reflects union positions on outsourcing, job creation, and health care benefits, in addition to pro-union legislation.

• A federal court upholds reinstatement of employee who made specific threats of violence to his supervisors. The Company refused to follow the arbitrator’s direction and sought to have the award vacated because it violated “the well-established public policy of not permitting violent individuals to return to the workplace.” Even though the arbitrator had found that the employee had violated the Company’s code of conduct and that the employee’s statements “were wrong,” and had ordered the employee to submit to a psychological evaluation for fitness to duty at the Company’s request, he ordered reinstatement without back pay. The Company contended that OSHA guidelines and other authority established that workplace safety and the prevention of violence was a “well defined dominant” public policy. The reviewing judge disagreed, finding that OSHA had not promulgated any express rules that require an employer to terminate an employee who has made verbal threats. He also apparently believed that this scenario would not be covered by OSHA’s general duty clause.

• The NLRB set aside an election won by the United Auto Workers in Michigan, finding that three union supporters had manhandled and physically intimidated waiting voters. The record showed that as many as 30 voters were in the area when three members of an in-plant organizing committee, wearing union t-shirts and buttons, came into the voting area. Rather than taking their place in line, they moved up and down the line of voters talking with them. They grabbed an individual and moved him up in line and shoved another, and briefly interrogated one employee regarding how he planned to vote, and interrogated another for more than 15 minutes. Despite this outrageous behavior that clearly inhibited voters’ free choice, an NLRB hearing officer in Detroit had recommended certifying the union. But the three-member NLRB panel saved the day: “These are serious acts of physical coercion that cannot be dismissed as mere campaign bravado or overzealous partisanship. Not only were the two employee victims likely to be intimidated by the employee misconduct, but so also were the numerous other voters who were present when it occurred.” Observation: If those in the voting line for a secret ballot vote had instead been at a union hall and confronted in the same manner by UAW persuaders to sign cards for representation – their union cards would have to be credited if union-sponsored legislation now before Congress were to become law.

• A recent ruling by the NLRB faults a Pennsylvania manufacturer in its layoff and recall of employees after a union election, and underscores the restrictions placed on an employer’s unilateral actions when first organized and before a contract is concluded. The selection of employees for layoff was found discriminatory and back pay ordered as the appropriate remedy, but the Board also found that the failure to bargain about the layoff decision (and seek union views as to alternatives to layoff) and the methodology of returning those on layoff to work (perhaps using a different order) were separate violations. They were to be remedied by reinstatement of the laid-off employees with back pay from the date of the layoff to the date of a proper offer of reinstatement, less any interim earnings.

• A prohibition against union handbilling by employees of other company locations in the parking lot of the site of another employer plant location has been held unlawful by the NLRB. A union election petition that encompassed employees at three company plants led to a scheduled election. During the campaign, some of those employed elsewhere appeared at one of the plants and were barred by its manager from its employee parking lot, thus limiting the employees’ access to employees of the sister plants. The union lost the election, and in response to election objections and charges, the company cited security concerns. Two Board members ruled that the offsite employees had a “free speech” right to handbill in the parking lot at their own employer’s facility, and the employer “failed to present a business reason sufficient to justify prohibiting their access to the parking lot.” In his dissent, Chairman Battista argued that the Company had long prohibited parking lot access to persons not employed at that facility, and thus the restriction was not aimed at denying employees a right to engage in union handbilling but was rather developed “solely in response to its security concerns.” He would have struck the balance in favor of property rights versus free speech, especially in light of the fact that the handbillers had other means to convey their message.

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