For the past 50 years, NCA has been working diligently on Capitol Hill as the voice of the private club industry. We have patrolled the halls of Congress fighting to protect clubs, and we have educated members of Congress about the value our industry provides to their constituents. Along the way, we have learned some valuable lessons about the way things work in Washington, D.C.
One of the most important lessons we have learned is that regulatory agencies are sometimes even more important to our industry’s success (and failure) than any bill introduced in Congress. With the House of Representatives controlled by Republicans and the Senate controlled by Democrats, it is even more important to watch those regulatory agencies, because that is where most of the work is being done.
With Congress gridlocked, one regulatory agency has begun to ramp up its activities in ways that could negatively impact the way private clubs do business. The National Labor Relations Board (NLRB or Board) is a five-member agency charged with overseeing union organizing elections and resolving disputes between unions and management. It also has the power to create regulations and to initiate lawsuits if it feels workers’ rights have been violated.
What makes this so problematic for our industry is that a majority of the Board strongly supports unions and, accordingly, simplifying the union organizing process. The prospect of regulations and case law precedents that broaden unions’ scope and activities does not help most clubs’ bottom-line. Unfortunately, we have seen exactly these kinds of results from the NLRB in the past few months.
Proposed Regulations
To begin, the Board has just issued a proposed regulation requiring every business in the United States to display a new employee information poster. The regulation will ensure that all employees know their rights during a union organizing campaign and that they will know what constitutes an unfair labor practice during said campaign.
This proposed rule is troubling because such a notice was only previously required when a business was actually going through a union organizing campaign or if it had been accused of some unfair labor practice. Now every club—whether or not it is going through a union drive or has ever had an allegation of wrongful conduct—will be required to display this poster.
Not only does the poster provide general information about union organizing, but it also provides specific examples of what constitutes unfair labor practices by an employer. Interestingly enough though, nowhere on the poster is there any discussion regarding employees’ rights to decertify a union, nor is there any information regarding what constitutes inappropriate union practices during an organizing campaign. The failure to include this information shows just how one-sided the Board has really become.
Naturally, NCA’s concern with this regulation is not that clubs must display a new poster in their employees’ break room. The real concern is with the unintended consequences likely to arise because of that poster. This regulation will expose club employees to more information about unions, which could increase union organizing drives. Additionally, there will be a greater chance that a disgruntled employee may file an unfounded claim against a club simply because of the poster’s extensive discussion of “unfair labor practices.”
In response to this proposed new rule, NCA and our allies on the Coalition for a Democratic Workplace submitted comments to the Board expressing our concerns. However, it is unlikely that any substantive changes will be made. Thus, when this rule is finalized within the next 60 days, clubs may learn first-hand the full extent of the NLRB’s impact.
Legal Precedents
Not only does our industry have to be mindful of the regulations issued by the Board, but we must also be wary of the legal precedents it hands down.
In a case filed against a supermarket chain, the Board sued because the business refused to provide union organizers access to the company’s property for organizing activities. This right to exclude such activities from a business’ property had been granted to businesses under a 2007 ruling from the Board. However, the current Board is very different from its 2007 iteration, and it has claimed that the chain unlawfully discriminated against the union because it allowed other, non-union organizations on the property for various activities. The Board’s rationale is that since the business let others on the property, it should allow the union there, too.
Should the Board find for the union, it would mean that allowing the United Way or the Red Cross on your property, for whatever reason, could mean you would have to open your property to union organizing activities as well. While a decision in this case has not yet been reached, there is little doubt that the Board fully supports expanding union organizers’ access to employees. As such, we expect clubs will soon have less right to exclude organizers from club property.
In a case filed against a health care provider, the Board is actively reviewing whether smaller employee bargaining units should be allowed to unionize. Under current law, an appropriate employee group for unionization purposes is one with employees who have the same “community of interests”—for example, all wait staff in a private club. With this lawsuit, the Board is hoping to break that down into even smaller subsets by allowing all employees who perform the “same job at a single facility” to be considered an appropriate employee group.
Should smaller subsets be approved, it would take fewer votes to secure a majority during a union organizing campaign. It would also mean that, for example, a club’s pool area wait staff could organize even when the fine dining wait staff decided against forming a union. With the Board already working to ease the union organization process through the proposed regulations, it is likely that smaller-sized bargaining units will be approved.
In an amazing move, the NLRB has just recently sued the Boeing Company for deciding to open a second plant in South Carolina, rather than opening another plant in Washington State, where it is headquartered. The allegation is that Boeing built its new plant to avoid using union workers because of past union activity in its Washington facilities. As such, Boeing’s decision was characterized as a “retaliatory action,” and the Board has alleged that Boeing is unlawfully transferring work from its union workers.
While Boeing did decide to build another plant in a less union-friendly state, the claim fails to consider the significant economic benefits the state of South Carolina provided to Boeing, motivating it to build there. Additionally, the claim that the company is transferring work is completely unjustified because not one Washington worker will lose his job.
If the Board rules in favor of the union, this will mean that companies will lose their right to make independent business decisions without first discussing the matter with their employees’ union representatives. The NLRB—whether under Democratic or Republican control—has never scrutinized decisions about plant location in the past. However, a decision against Boeing is possible.
Finally, the Board just announced that it would sue South Dakota and Arizona over recent voter approved amendments to their constitutions. The constitutional amendments in question require that all union organizing elections be held by secret ballot.
The constitutional amendments passed by those states were in response to the Employee Free Choice Act (Card Check bill). As you recall, the Card Check bill would have removed the secret ballot election during a union organizing drive. Because of the strong likelihood of worker coercion and intimidation, the bill never passed Congress, but that did not mean this issue was dead.
Ever since the defeat of this bill, the NLRB has been working to propose Card Check-like regulations, and it has worked to prohibit any state action that might stop Card Check from becoming a reality. However, the NLRB’s action against these states is its boldest move yet.
Conclusion
In its simplest form, these regulations and lawsuits are the latest in a series of steps by the Board to embolden unions and broaden their acceptance—something most private clubs do not want. Many private club leaders probably never thought they would have to worry about the actions of a nondescript federal agency. Unfortunately, the NLRB could have a significant impact on our industry in the very near future.
Thankfully, private clubs are not number one on the unions’ hit list, but we are certainly in their crosshairs—as clubs in New Jersey can attest. Our industry must stay resolute and be prepared to fight the NLRB any way we can.
Unfortunately, the only real way to slow down the NLRB is by changing its make-up, which cannot happen until 2013. Therefore, it is incumbent upon the private club community to shine a light on the actions taken by this regulatory agency, ensuring that many more see the impact the NLRB can and will have on our industry. This particular Board proves the point that what you don’t see truly can hurt you.
Who makes up the National Labor Relations Board?
The NLRB consists of five individuals appointed by the President to 5-year terms. Each appointee must be confirmed by the Senate before assuming his or her responsibilities on the Board. Traditionally, the Board is made up of three members from the President’s party and two from the opposing political party. Upon the inauguration of a new President, the first Board member whose term expires, and who is not from the President’s party, is normally replaced with a member from the President’s party—creating the Board’s new 3-2 majority.
The current Board Members are:
- Wilma B. Liebman, Chairman of the NLRB. Liebman was first appointed by President Bill Clinton in 1997 and re-appointed by President George W. Bush twice. President Obama designated her Chairman of the Board in 2009. Her term expires in August 2011. Prior to joining the Board, Liebman was a Deputy Director of the Federal Mediation and Conciliation Service. Before that, she was Labor Counsel for the Bricklayers and Allied Craftsmen, Legal Counsel to the International Brotherhood of Teamsters, and a staff attorney with the NLRB.
- Mark G. Pearce, Member. Pearce was appointed by President Obama to a term that expires August 2013. Prior to joining the Board, Pearce was a well-established attorney practicing union side labor and employment law in Buffalo, N.Y. Before his time in private practice, he worked for the NLRB as a Law and District Trial Specialist in its Buffalo office.
- Brian Hayes, Member. Hayes was appointed by President Obama to a term that will expire December 2012. Prior to joining the Board, Hayes served as the Republican Labor Policy Director for the Senate Health, Education, Labor and Pensions Committee. Before his time working on the committee, Hayes was an attorney representing management in labor and employment law matters for over 25 years. He also served as law clerk to the NLRB’s chief Administrative Law Judge and as counsel to a former Chairman of the NLRB.
- Craig Becker, Member. Becker was given a recess appointment to the Board by President Obama in 2010. His term expires December 2011. Prior to joining the Board, Becker served as the associate general counsel to the Service Employees International Union (SEIU) and in the same position with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). Before those positions, Becker practiced union side labor law and taught at UCLA, the University of Chicago and Georgetown University Law Schools.
There are two nominations pending before the Senate, one for Terence F. Flynn to fill the one vacant seat, and one to confirm Becker for a full term.
Except for Becker, all of the current and former Board Members joined the NLRB after spending many years in government or private sector law firms. Craig Becker is the only appointee to ever come directly from a union organization. His initial Senate confirmation was rejected by a bipartisan group of Senators because of his strong union ties. However, the President still placed him on the Board through a recess appointment. His nomination has been brought forward again in 2011, but there is little likelihood that he will fare any better this time.
The SEIU was the largest outside contributor to candidate Obama’s campaign in 2008. SEIU’s president has called for the implementation of new regulations to ease the union organization process and to make union elections run more quickly for organizers. With the addition of Mr. Becker to the Board, those goals are steadily being realized.