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Obama Administration Continues with Pro-Union Policy Triangle

David P. Phippen
Constangy, Brooks & Smith, LLP - Fairfax Office

March 7, 2014

Previously published on February 26, 2014

Even before the election dust had settled in Chattanooga, Volkswagen, with union members on its parent Board of Directors in Germany, asserted that it still wants to pursue a "works council." And organized labor, with the help of the Obama Administration, will continue trying to tilt the playing field in three ways.

First, as noted by Cliff Nelson in his bulletin on the VW campaign, the Specialty Healthcare "micro-bargaining-unit" decision (enforced by the U.S. Court of Appeals for the Sixth Circuit) allows unions to target a small group for an election, giving the union its best chance of success. Had the UAW targeted a narrow group of voters at VW, it might have prevailed.

Second, the proposed "persuader" regulations recently issued by the U.S. Department of Labor will hinder the ability of employers to get confidential legal advice and therefore increase the likelihood that unfair labor practices will inadvertently be committed. Recent unofficial reports indicate that final regulations may be delayed because of the controversy they may generate.

Finally, we have the Board's proposed rule on "quickie," "ambush," or "snap" elections. Although, as noted by Cliff, the "quickie" timetable at VW did not result in a win for the union, the rule is expected to give employers insufficient time to provide relevant information to employees before the campaign begins.

The squeeze on employers and in favor of union organizing efforts created by these three actions is taking place now. Employer groups are expected to continue pursuing legislation and court challenges. Although the 2014 elections will undoubtedly have some impact, even sweeping Republican victories are unlikely to stop this Administration. And top-down corporate campaigns, aided by worker center groups that operate largely outside federal law and so-called "progressive" organizations, will continue to put additional pressure on employers who do not get in line with the union's interests.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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