Court Strikes Down Controversial NLRB Poster Requirement

This issue has been kicked back and forth in the court system in the last couple of years. There finally appears to be some closure, much to the relief of America's business community. The Hill reports:










NLRB Keeps Charging Ahead Blindly

In the regulatory mess that is Washington today, the leader of the ridiculous pack just might be the National Labor Relations Board.

With union membership continuing to decline to historically low levels, the NLRB has apparently determined it will do whatever it can to help slow the erosion. It has shown no pretense of fairness in its decisions over the past four years with its rulings also often having major impacts on non-union employers.

In January, a U.S. Court of Appeals threw out three of President Obama's NLRB appointees, raising questions about the legality of recent rulings. Those same people have now been renominated by the President, so the drama continues.

The latest partisan action regards union dues expenditures. The National Association of Manufacturers (NAM) provides this summary:

A case currently before the NLRB could significantly alter the current way in which employees can exercise their Beck rights to object  to union dues’ expenditures.  According to the U.S. Supreme Court, in the Beck decision, employees can object to a portion of union dues’ expenditures if the dues are being used to fund political activity not related to collective bargaining or contract administration.  In a recent case, the United Nurses and Allied Professionals (Kent Hospital) and Jeanette Geary, however, the NLRB decided an employee, who objected to the union’s expenditures, did not deserve to have any verification showing proof how the union was spending its funds.
The Board’s new idea would unfairly and unnecessarily stack the deck against employees who have to pay dues, but disagree with the union politically.  Under the proposal, any lobbying activity the union would engage in on Capitol Hill, down to state and local seats of government, would go unchecked.


Double Standard Approach Not Helping Teamsters

Having worked in Democratic politics, my take on labor in America has certainly been influenced. Without getting too deep in the woods, I think there is definitely a time and place for organization in some industries — and a functional coexistence between a union and an employer can be a healthy thing if both sides act responsibly. The unfortunate aspect of that, however, is that sometimes union tactics become so aggressive — and even hypocritical – they hinder their relevance and hardly endear anyone to their cause. Red State takes a look at a recent Teamsters strategy that even had the National Labor Relations Board irritated. As the author of the post points out, their actions seem to punish the very workers they purport to help.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkers and–again, the Obama labor board is having none of it.






The case didn’t end there, however.







Make Sure NLRB Can’t Come Down on Your Social Media Policy




Your social media policy cannot limit free speech



Union Misdeeds, Part II: Maximum Wages Prevent Individual Awards

Employers attempting to reward union employees for jobs well done are being prohibited from doing so by union contracts. This post asks: Why should unions have the power to turn down a raise on a worker’s behalf? Heritage’s The Foundry blog explains:

Union contracts do not just set the minimum compensation that workers can earn; they also set maximum wages.

Employers may not pay employees more than their union has negotiated. Unions typically base pay on seniority and job classifications—not individual effort or productivity. Workers cannot bargain individually for more. By law, hard-working union members get the same pay as those who slack off.

The National Labor Relations Board (NLRB) strikes down attempts to raise wages without union permission. The Brooklyn Hospital Center rewarded its best nurses with $100 gift cards. The NLRB told the hospital to cease and desist. The Register Guard Publishing Company gave a bonus commission to employees who sold advertising contracts that the company wanted to promote. The NLRB also ordered them to stop.

Union contracts should not prevent workers from earning raises. The Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act corrects this problem. It amends the National Labor Relations Act to eliminate the wage ceiling. The RAISE Act allows employers to pay deserving employees higher wages for their work without facing unfair labor practice complaints. The Senate may vote on the RAISE Act as an amendment to the farm bill.

The RAISE Act would benefit employers and employees by allowing companies to offer performance pay to reward productivity. Unsurprisingly, employees work harder when their employers reward their hard work. Research shows that the average worker’s earnings rise 6–10 percent when they can get performance pay. Companies pay these higher wages out of the higher revenue their productivity generates. Both sides win.

Forbidding employers from paying individual union members higher wages makes no sense in today’s economy. Workers want their achievements recognized, and employers want to reward productivity. The RAISE Act lifts the seniority ceiling and allows union members to get ahead. Why should unions have the power to turn down a raise on a worker’s behalf?

Effort to Slow NLRB ‘Ambush’ Fails

OK, there wasn’t much chance the amendment was going to pass the U.S. Senate and, if somehow it did, it would have been vetoed by the White House. But it was worth the old college try, as they say, and it did shine the spotlight once again on the runaway actions of the National Labor Relations Board.

The amendment was an attempt to overturn new regulations that dramatically reduce the time between union organization efforts and the actual election in that workplace. In other words, unions will still be able to make their case for why their presence would make sense during their organizing effort, but employers will have precious little time to respond prior to a vote taking place.

Currently, worker votes typically take place 45 to 60 days after a union gathers enough signatures to warrant an election. Under the new regulations, those votes could take place within a matter of a few weeks, or even days.

Indiana senators Richard Lugar and Dan Coats supported the resolution to overturn the NLRB action. The 54-45 vote to disapprove, however, was along party lines with the exception of one vote.

Lawmaker reactions were swift, calling the rule an "ambush" on employers:

Senator Roy Blunt (R-Missouri): "By speeding up union elections and removing important safeguards that ensure a fair election process, this unnecessary rule will restrict job creators’ free speech rights and limit workers’ opportunities to hear both sides of the argument to unionize — an issue critically important to their livelihood.


Mike Enzi (R-Wyoming), Senate Health, Education, Labor and Pensions (HELP) Committee ranking member: “This vote was an important opportunity to send a message to the NLRB that their job is not to tip the scale in favor of one party or another, but to fairly resolve disputes and conduct secret ballot elections."

Lindsey Graham (R-South Carolina): The National Labor Relations Board seems hell bent on changing processes across the board, more for political reasons than for substantive reasons." 

Advice for Employers and Employees About Social Media Use

Every week, it seems like there’s another story or controversy surrounding a business and its use of social media. Whether it’s an ill-advised Tweet, improperly disciplining an employee for social media use or an employee venting irresponsibly, the gray area in this arena seems to be spreading like a (computer) virus. offers some tips on what you should consider when it comes to social media use. Keeping these concepts in mind may keep you out of trouble in the future:









If you’d like more information on this topic, the Indiana Chamber offers the Indiana Employer’s Guide to Monitoring Electronic Technology in the Workplace – 3rd Edition (authored by attorneys from Ogletree Deakins).

NLRB April 30 Posting Requirement Blocked for Now

The National Labor Relations Board’s posting requirement that was set to take effect on April 30 has been postponed… AGAIN. The U.S. Court of Appeals for the District of Columbia Circuit Tuesday issued an injunction prohibiting enforcement of the rule until an appeal of a lower court’s decision upholding the rule (but voiding some penalties) has been decided. Oral arguments in the case are currently scheduled for September.
Tuesday’s ruling follows last Friday’s decision by a federal court in South Carolina that struck down the posting requirement, leading to confusion over what is now required. Implementation of the posting requirement is now on hold until further notice.

Laffer: Right-to-Work a Beneficial Economic Tool for States

A few Chamber staffers joined hundreds in attendance at today’s Economic Club of Indiana luncheon featuring Arthur B. Laffer, an economist, author and former member of President Reagan’s Economic Advisory Policy Board (though he also asserted that Bill Clinton was "a great president"). When asked about right-to-work legislation, he lauded Indiana’s efforts to become the 23rd right-to-work state. Back in May, he co-wrote an editorial on the issue in the The Wall Street Journal. An excerpt:



A recent New York Times editorial justified the NLRB decision by arguing that unions are suffering from "the flight of companies to ‘Right-to-Work’ states where workers cannot be required to join a union." That’s for sure, and quite an admission. We’ve been observing that migration pattern for years, but liberals have denied it’s actually happening—until now.

Every year we rank the states on their economic competitiveness in a report called "Rich States, Poor States" for the American Legislative Exchange Council. This ranking uses 15 fiscal, tax and regulatory variables to determine which states have policies that are most conducive to prosperity. Two of these 15 policies have consistently stood out as the most important in predicting where jobs will be created and incomes will rise. First, states with no income tax generally outperform high income tax states. Second, states that have right-to-work laws grow faster than states with forced unionism.

As of today there are 22 right-to-work states and 28 union-shop states. Over the past decade (2000-09) the right-to-work states grew faster in nearly every respect than their union-shop counterparts: 54.6% versus 41.1% in gross state product, 53.3% versus 40.6% in personal income, 11.9% versus 6.1% in population, and 4.1% versus -0.6% in payrolls.

For years, unions argued that right-to-work laws were bad for workers and for the states that passed them. But with the NLRB complaint, they’ve essentially thrown in the towel. If forced unionism is better for the economy of a state, why would the NLRB need to intervene to keep Boeing from leaving Washington? Why aren’t businesses and workers moving operations to heavily unionized places like Michigan, New York, Ohio and Pennsylvania and fleeing states like Georgia, Tennessee, South Carolina and Texas?

In reality, the stampede of businesses from forced-union states like Washington has accelerated in recent years. A 2010 study in the Cato Journal by economist Richard Vedder of Ohio University found that between 2000 and 2008 4.8 million Americans moved from forced-union states to right-to-work states. That’s one person every minute of every day.

Right-to-work states are also getting richer over time. Prof. Vedder found a 23% higher per capita income growth rate in right-to-work states than in forced-union states, which over the period 1977-2007 amounted to a $2,760 larger increase in per-person income in those states. That’s a giant differential.

So now the unions concede that this migration is indeed happening, but they say that it is unhealthy and undesirable because workers in right-to-work states are paid less and get worse benefits than the workers in union states. Actually, when adjusting for the cost of living in each state and the fact that right-to-work states were poorer to begin with, a 2003 study in the Journal of Labor Research by University of Oklahoma economist Robert Reed found that wages rose faster in states that don’t require union membership.

Employers that move away from forced-union states mainly do so not to scale back wages and salaries—although sometimes that happens—but to avoid having to deal with intrusive union rules, the threat of costly work stoppages, lawsuits, worker paychecks going to union fat cats, and so on.

Obama’s NLRB Appointments Raise Concerns About Board









