Legal — 6

The Chamber’s challenge to this exercise of states’ rights was not surprising, but the NLRB’s support of this challenge was—especially coming as it did from an agency of a government that has been determined to offload as much federal power and as many federal programs as possible to the cashstrapped states. But, according to the Board’s brief, states should not be allowed to decide about state spending for anti-union campaigns because this is an “impermissible regulatory attempt to substitute California labor policy for existing federal labor policy.” The Board actually said in its brief that “[un]like California, Congress generally favors robust debate of union representation issues as a means of enhancing the opportunity for employees to make a free and informed choice.” “Robust debate?” “Free and informed choice?” Really? In the end, overriding a state’s desire to limit the manner in which state funds are expended will allow employers to be reimbursed for whatever they spend to defeat an organizing campaign—which will mean fewer organized employees and less collective bargaining.

Another area of great concern is the General Counsel’s recent move to defer refusal to provide information unfair labor practice charges to the grievance-arbitration process. A case called Ball-Foster Glass Container Co., involved a Regional Director’s refusal to issue a complaint on a charge that the employer failed to provide relevant information relating to the subcontracting of bargaining unit work.While the GC recommended the issuance of a complaint, he also directed Counsel for the GC to argue that the Board should use this case to reconsider its deferral policy. The GC recognized that current Board precedent holds that issues concerning refusal to furnish information are not subject to deferral. But he suggested that the Board may wish to reconsider its deferral policy with respect to refusal to furnish information cases.

We are concerned because we believe the GC must wait until the Board has had an opportunity to rule on this issue before he directs the Regions to depart from settled law. Right now, the law remains quite clear—the NLRA duty to bargain collectively includes the obligation to provide information a union needs to perform its duties in grievance processing and collective bargaining.

Finally, and of great concern is the General Counsel’s position that a union’s use of a large inflatable rat in a labor dispute is unlawful “signal picketing” when employees or suppliers treat the rat like a picket line. In sharp contrast to this misguided position is a recent decision of an Ohio federal court in an IAM case called Tucker v. City of Fairfield. We sued the city and various city departments and officials for interfering with our right to display the rat at demonstrations protesting Fairfield Ford’s refusal to bargain with the IAM. The federal district court granted the IAM’s motion for a temporary restraining order and a permanent injunction against the City. The Court held that there is a First Amendment right to use portable, nonobtrusive props to disseminate information in a public right-of-way on a temporary or limited basis. The peaceful use of an inflatable rat in a union demonstration is protected speech under both the First Amendment and federal labor law.

We hope these cases have given you a better understanding of why our ability to organize and bargain is so dependent on politics. With the loss of the White House and the Congress, we are once again losing ground in our effort to extend the benefits and protections of collective bargaining to countless workers.