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First steps taken to form new “trans-national” union
On April 18, 2007, the United Steel Workers, Amicus and the Transportation & General Workers Union (“T&GWU”) announced that they have taken formal steps toward the formation of the first trans-Atlantic union. In a ceremony in Ottawa, the unions signed an agreement to form a merger exploration committee, which is charged with preparing for a formal merger within one year. If formed, the new union will be called Unite (not to be confused with UNITE-HERE), and will represent approximately 3.4 million people in the United States, Canada, the United Kingdom, and the Republic of Ireland, and will be the world’s largest union.

Before March 2007, Amicus was the U.K.’s second-largest trade union and its largest private-sector union. Amicus was formed in 2001 by the merger of the Manufacturing Science and Finance Union and the Amalgamated Engineering and Electrical Union. On March 8, 2007, Amicus and the 800,000 member T&GWU, the largest “general” union in the U.K., announced their plan to merge effective May 2007, forming the largest trade union in the U.K. and Ireland.

The Steelworkers union has merged 12 times with smaller unions since 1942 and since 2004 has actively sought strategic alliances with unions in other countries. In 2005, the Steelworkers signed such an agreement with Amicus. This sort of "globalization" of labor is not unexpected and will continue to be a cause for concern, especially in unionization efforts among employees in the U.S. whose employers are foreign-based corporations with unionized operations in their homelands.

On the other hand, a wise consistency is a very good thing
Ralph Waldo Emerson once said, “a foolish consistency is the hobgoblin of little minds.” However, a recent labor decision highlights the importance of consistency in enforcing no-solicitation policies.

In Cellco Partnership d/b/a Verizon Wireless, the Board found that the company violated the NLRA by selectively enforcing its no-solicitation policy against an employee who asked co-workers to sign union authorization cards during working time. The Board noted that the employer allowed employees to sell Girl Scout cookies, food, and candy at work. To see a copy of the decision, click here.

(Although the Board in Cellco found that the reprimand for solicitation was illegal, it upheld a reprimand issued to the employee for using inappropriate language while soliciting. Because the employee used profane and insubordinate language about a supervisor in a “large open area full of cubicles in close proximity to each other occupied by both supervisory and non-supervisory personnel,” the Board found that the employee’s language would “reasonably tend to undermine [the] supervisor’s ability to maintain order and respect.”)

NLRB hears oral argument on whether companies can ban union-related e-mail
May an employer prohibit the non-business use of its e-mail system, as it (theoretically) does its telephones, message machines, fax machines, photocopiers and other communications equipment? The Administrative Law Judge in Guard Publishing Company, d/b/a The Register-Guard said no – at least, not when the employer allows other non-business uses of its e-mail system. (The U.S. Court of Appeals for the Fourth Circuit has reached the same result in another case. For a copy of the Fourth Circuit decision, click here.)

But now the NLRB has taken the rare step of hearing oral argument on this issue in the Guard Publishing case.

In arguments heard on March 27, counsel for the newspaper argued that the company’s e-mail system is private property and that it has the right to regulate and restrict its use. Further, the company argued, there is no Section 7 right for employees to use a company’s e-mail system for non-business purposes.

The union argued that, when employees are allowed to use an employer’s e-mail system to send non-business messages, they have the right to use the system to communicate about union or other protected concerted matters. The union conceded that employers should be able to require that such e-mail usage take place only during non-working time.

Interestingly enough, the union’s position was more employer-friendly than that of the General Counsel, who urged the Board to find presumptively illegal policies prohibiting the use of employers’ communications systems for any non-job-related purposes absent a showing of special circumstances. When asked for an example of such special circumstances, the Counsel for the General Counsel cited small server capacity. The General Counsel argued that this approach satisfied the test enunciated by the U.S. Supreme Court in Republic Aviation, which required that employers’ business interests be balanced against employees’ interests in communicating in the workplace.

Because of its serious implications, Constangy will be monitoring this case closely. To see a copy of the original decision of the Administrative Law Judge, click here. To see the Republic Aviation decision, click here.

Deauthorization petition may be supported by pre-contract signatures
In a case of first impression, the NLRB has held that an employee’s deauthorization petition was properly supported by signatures of unit employees that were obtained before the execution of the collective bargaining agreement. To see a copy of the decision, click here. Deauthorization, which is not the same as decertification, means that employees are no longer required to pay agency fees under a union-security provision in a collective bargaining agreement. (Decertification means that the union is no longer the majority representative of employees in the relevant bargaining unit.) Representation, decertification, and deauthorization petitions must be supported by at least 30 percent of the bargaining unit employees.

Supreme Court seeks Solicitor General’s opinion regarding California “labor neutrality” law
On April 16, 2007, the U.S. Supreme Court invited the Solicitor General to provide his input on whether California’s so-called “labor neutrality law” is preempted by the NLRA. The California law prohibits employers’ use of state funds to assist or deter union organizing efforts by their employees. Employers who receive $10,000 or more in state funds are subject to the controversial statute, which has been the subject of three published opinions by the U.S. Court of Appeals for the Ninth Circuit. Most recently, the full Ninth Circuit held that there is no preemption.

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