• In November 2010, voters in four states (Arizona, South Carolina, South Dakota, and Utah) passed Constitutional amendments that either guarantee or require secret ballot elections when determining questions related to union representation of employees. In response, NLRB General Counsel Lafe E. Solomon wrote to each State Attorney General to advise that the newly enacted statues infringed on Section 7 rights under the NLRA, and he threatened to sue on preemption grounds. The Attorneys General jointly replied and informed General Counsel Solomon that they were prepared to defend the amendments which they believe do not interfere with the NLRA. Solomon then backed off his threat to sue asserting that there may be “a basis upon with this matter can be resolved without the necessity of costly litigation.”
  • Senators Orrin Hatch (R-Utah) and Mike Enzi (R-Wyo), along with every Republican Senator (47 in total), sent a letter to President Barack Obama calling on him to rescind the nomination of Craig Becker to the NLRB. The Republican Senators´ concern is that Becker, a former union attorney who has served on the panel since his appointment in mid-2010, has made the panel, which currently is comprised of four members, three Democrats and one Republican, more polarized. This is not the first time Becker is up for confirmation. He was first nominated by President Obama in 2009, but Republican opposition contributed to a failed cloture vote and Becker was ultimately appointed via Presidential recess appointment power to a term that will end at the end of the Senate´s 2011 session. There are five seats on the Board total, and President Obama recently nominated an NLRB lawyer, Terence F. Flynn, for the one Republican seat, which is a currently vacant seat.
  • The United Steelworkers union is organizing to oppose right-to-work laws and ballot measures that are expected to be at issue in at least 11 states this year. If passed, these laws would render union security clauses unlawful.
  • The National Mediation Board´s current rule on elections, which was changed last year, provides that a simple majority vote is all that is required for a union to prevail in a representation election in the airline and railroad industries. Representative Phil Gingrey of Georgia introduced H.R. 548 which would repeal the new rule.
  • The NMB eliminated the option of submitting a silent or blank write-in vote for representation either online or over the phone. The NMB also deleted the provision in its representation election manual that provided that if there was a tie between votes in favor of and against representation, there would be a runoff.
  • The House of Representatives conducted a hearing on “Emerging Trends at the National Labor Relations Board.” Issues discussed included the Board´s decision to overrule case precedent despite the fact that the Board does not have a full panel of five Senate-confirmed members; the Board´s recent decision allowing “bannering” at job sites; NLRB General Counsel Lafe E. Solomon´s decision to confront four States Attorneys General about recently passed Constitutional amendments which the Board believes are preempted by the NLRA and the U.S. Constitution; and the Board´s recent invitation for the filing of amicus briefs in support of pending cases. Also discussed was a proposed rule that would require employers subject to the NLRB to post a statement in the workplace which informs employees of their rights under the NLRA; a January 21 memorandum written by General Counsel Solomon which takes the position that “the board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator;” and the resource strain that Solomon´s initiative to increase the frequency of certain Section 10(j) cases might cause.
  • Representative Tom Price (R–GA) proposed that an amendment to the fiscal year 2011 budget bill providing that “none of the funds made available by this Act may be used to pay the salary and expenses of personnel to carry out and implement the National Labor Relations Act.” Proposals were also made to cut the NLRB´s budget by approximately 18 percent, or $50 million dollars. If the NLRB´s budget is cut to this degree, the agency stated that it may furlough employees for three months and otherwise curtail agency operations. Any House approved bill, though, still must gain Senate approval. President Obama has stated that he will veto such a bill if it gets to his desk.
  • If the Wisconsin legislature passes Senate Bill 11, state and local employees, with the exception of state troopers, local law enforcement, and fire safety workers, will see significant changes to their bargaining rights. As written, the legislation will limit collective bargaining to wage increases; cap increases to the amount set by the consumer price index unless public referendum approves a greater increase; limit all future contracts to one year; freeze wages until new contracts are ratified; require annual votes to maintain union certification; bar employers from collecting union dues; prevent workers from being required to pay union dues even if they are a union member; and repeal the collective bargaining rights of some state employees.
  • The Ohio Senate passed S.B. 5, which dramatically limits public workers´ ability to bargain wages and benefits and outlaws strikes by any public sector employees in Ohio. The bill goes to the Ohio House of Representatives next, which is expected to approve the bill, and Governor Kasich has announced he will sign it into law.