• The 2004 national elections were marked by unprecedented efforts of both labor unions and business organizations in their appeals to voters. AFL-CIO President John Sweeney claims that 65% of union members voted for Kerry, as opposed to 33% for Bush. Ninety percent of union members surveyed in “battleground states” reported that they had received information from their union in the mail, 66% received phone calls, 45% received workplace flyers, and 31% had union contacts in the workplace. The business community’s voting efforts were led by the National Association of Manufacturers and the Business-Industry Political Action Committee, which encouraged employers to communicate directly with their employees about legislative issues. Federal election laws bar companies from sending to non-management employees communications that endorse specific candidates or political parties. The U.S. Chamber of Commerce made some five million phone calls and sent about 34 million messages through the regular mail and e-mail to potential voters. The National Federation of Independent Business, an advocate for small businesses, was also very active and effective in the “get out the vote” campaign.

• Political sparring over “card-check” recognition agreements between employers and labor organizations will continue in the next congressional term. Card-check recognition is a means by which unions are recognized without an election. The NLRB has agreed to decide the legality of such agreements, particularly as they affect subsequent decertification petitions that seek an election by secret ballot. The NLRB decision will probably be issued in the spring of 2005. The Employee Free Choice Act (S. 1925/H.R. 3619), which would require employers to recognize unions when presented with a majority of authorization cards, had the support of all of the Democrat presidential candidates last year but is expected to go nowhere. The Secret Ballot Protection Act (H.R. 4343), introduced by Representative Charles Norwood (R.-Ga.), would require union recognition only through secret ballot elections conducted by the NLRB, and it is expected to suffer the same fate. The AFL-CIO reported that more than 80% of its newly organized employees in 2002 were secured through the card-check process.

• The NLRB finds that seven Minnesota hospitals illegally refused to hire striking nurses. The nurses were seeking temporary employment. Members Liebman and Meisburg found that the hospitals did not have a “legitimate and substantial business justification” for their actions and had expanded a bilateral labor dispute by “introducing a new front of economic warfare.” All nine hospitals in Minneapolis-St. Paul were unionized, but they bargained separately, and seven had agreed to terms. Nurses at the other two hospitals went on strike, and some applied for temporary positions at the other seven hospitals. The seven hospitals refused to hire the striking nurses because (1) the hospitals did not want to strengthen the strike; and (2) the hospitals were concerned that the struck hospitals would increase wages and then employees would defect from the seven hospitals to take jobs with the two hospitals paying higher wages. The Board majority rejected the rationale of the seven hospitals. The case did not turn on traditional anti-union animus, but rather upon third-party intervention.

•A federal judge clears the way for a lawsuit against the Teamsters and UNITE HERE based on the unions’ using employee license plate numbers to obtain home addresses and make visits during an organizing campaign. The suit, filed in Philadelphia by eight employees of Cintas Corporation, alleges that the unions violated the Driver’s Privacy Protection Act of 1994. The judge rejected union arguments that the NLRB had primary jurisdiction over the dispute.

• The NLRB reverses an ALJ’s decision finding that a New Jersey trucking company violated the NLRA by claiming to be in “financial distress” while failing to respond to union demands for financial information to justify the claim. The Supreme Court has long ago ruled that when a company asserts an inability to pay, it must supply books and records to justify that position if such are requested. In reversing the ALJ, the NLRB majority of Chairman Battista and Member Meisburg distinguished a claim of “financial distress” from that of an “inability to pay,” concluding that an inability to pay means that the company “presently has insufficient assets to pay or that it would have insufficient assets to pay or that it would have insufficient assets to pay during the life of the contract that is being negotiated.”

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