Wyatt Employment Law Report

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NLRB Announces Proposed Changes To Its Representation Election Procedures Intended to Speed Up the Process

By Edwin S. Hopson

On June 21, 2011, the National Labor Relations Board, with Member Hayes dissenting, proposed changes in its representation election procedures.  The stated purpose is “to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

The Board majority points out that it has periodically reviewed and frequently revised its procedures in representation cases over the years since the National Labor Relations Act was enacted into law in 1935. For many decades, the NLRB’s General Counsel has had formal time targets for many facets of the representation election process.  These proposed regulations would supplant the previous guidelines. Continue reading

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President Obama Renews Support for the Proposed Employee Free Choice Act and Makes Other Comments Concerning Labor Issues

By Edwin S. Hopson

Earlier this month, President Obama spoke to the AFL-CIO Executive Council at a meeting in Washington D.C.  He had some interesting comments about the Employee Free Choice Act (EFCA).  He stated, in part:  “[g]etting EFCA through the Senate is going to be tough. It’s always been tough; it will continue to be tough. We’ll keep on pushing.”

The President also commented about the National Labor Relations Board.  “[w]e are going to make sure that the National Labor Relations Board is restored to have some balance so that if workers want to form a union, they can at least get a fair vote in a reasonable amount of time.”

Apparently referring to labor consultants many employers use in union organizing campaigns, President Obama said this:  “[a]nd we don’t want, by the way, government dollars going in to pay for union busting. That’s not something that we believe in. That’s not right. That tilts the playing field in an unfair way.”

The full text of the President’s remarks can be found at http://www.whitehouse.gov/the-press-office/remarks-president-afl-cio-executive-council.

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Union Election Scoreboard: National Statistics

By George J. Miller

To help our readers follow union election activity in our practice area, we will occasionally post election statistics and other information, such as locations of activity and the companies and unions involved.  For starters, here is the big picture, using nationwide statistics from election reports of the National Labor Relations Board, which are viewable on line at


Union Election Win Rates, 2000-2009






















This data is for elections where the employees were not already represented by a union and were voting whether or not to be represented.  Win rates in cases involving incumbent unions are even higher. 

This data unquestionably shows that union win rates are going up and that for at least a decade unions have won a majority of these elections.  This undermines organized labor’s argument that Congress needs to pass the Employee Free Choice Act in order to level the playing field.  While the compromise bill reportedly being crafted by members of the Senate HELP Committee eliminates the card check provision of the original bill, this data indicates that even the provision for enhanced penalties against employers is unnecessary, because it shows that employers en masse are not illegally intimidating employees to vote against union representation.

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Senator Specter Predicts Passage of EFCA

By Edwin S. Hopson

On September 15, 2009, the Washington Post reported that Pennsylvania Democratic Senator Arlen Specter in a speech to the AFL-CIO convention stated that by year’s end the Congress would pass the Employee Free Choice Act (EFCA) in a form that would be “totally satisfactory to labor.”  While dropping the card check feature in an effort to compromise, Specter indicated after his speech that the proposed legislation would amend the National Labor Relations Act to:


  • severely shorten the time between the filing of an election petition and the date of the election;


  • guarantee union organizers access to the employer’s property in order to campaign if the employer conducted anti-union meetings while employees were on the clock;


  • triple the penalties for unfair labor practice violations occurring during critical phases around the election and initial bargaining; and


  • provide for “last best offer arbitration” similar to the interest arbitration agreement major league baseball has with its players’ association after several months of bargaining for the initial contract.

 Specter claims that he has the support of conservative Democratic Senators such as Blanche Lincoln of Arkansas and Ben Nelson of Nebraska, to at least vote to end any filibuster attempt by Republicans, which would require 60 votes.

 Whether the Democrats can in fact pull off passage of EFCA this year still remains to be seen.  The U.S. Chamber of Commerce and other employer groups are continuing to fight the proposed bill on its merits and will also argue that passage of EFCA at a time when business is still recovering from the shock of the recession is very bad timing.

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Proposed Employee Free Choice Act Legislation Undergoing Changes

By Edwin Hopson

It was reported on July 17, 2009, by the New York Times that several key Democratic moderate Senators are working on a revised Employee Free Choice Act (EFCA) bill so as to obtain the necessary 60 votes in the Senate to avoid a filibuster.  The original legislation to amend the National Labor Relations Act’s union representation provisions would have provided for union certification by card check rather than the traditional secret ballot election conducted by the NLRB to determine if workers want to be represented by a petitioning union. The proposed EFCA also provides enhanced penalties for unfair labor practices committed early in the process along with mandatory arbitration of the first contract if the parties cannot agree within 120 days after the union’s demand for bargaining.   Continue reading