Labor Relations Counsel - Legal Insight into Labor Relations Developments

A new Report issued by Acting NLRB General Counsel (GC) Lafe Solomon responds to a number of practice and procedural questions related to Board operations posed by labor attorneys during a recent American Bar Association Midwinter Meeting. The report answers questions related to unfair labor practice charges, Board rulemaking, employer social media policies, and representation election procedures, among other topics. Highlights of the report are as follows:

Social Media and Handbook/Policy Cases

According to Solomon, there are no immediate plans for the Board to issue another report governing social media, at-will employment, confidentiality, or other employer rules/policies. The Board also does not have any plans to develop regulations regarding social media policies.

With respect to the class action arbitration waiver invalidation issue presented in D.R. Horton, Inc., the Report notes that there are 29 pending cases that raise D.R. Horton issues.

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The National Labor Relations Board has created a new webpage that explains an employee’s section 7 rights under the National Labor Relations Act (NLRA) and allows the user to click on various Board cases that address protected concerted activity. The focus of these examples is to apprise workers of their rights under the Act, without the involvement of a labor union. The site states that:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

A sidebar on the site discusses what constitutes protected concerted activity and includes links to Board regional offices and contact information for individuals who believe such rights might have been violated.

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By John Cerilli

Controversial National Labor Relations Board regulations that will dramatically change union representation election procedures are slated to take effect on April 30, 2012. In anticipation of this event, Board regional offices have been stepping up their internal training efforts and preparing outreach programs to explain the new regulations to the public.

About two weeks prior to the rule’s effective date, the Board’s General Counsel (GC) is expected to post on the NLRB’s website a GC Memorandum, PowerPoint presentation, and video explaining the new regulations. The GC memorandum is expected to explain in more detail which contested issues will result in an evidentiary hearing on the record and which issues will be deferred until after an election. Generally, it is anticipated that issues pertaining to the scope and composition of the proposed bargaining unit generally will result in a hearing, while those pertaining to eligibility that do not affect a significant percentage of the bargaining unit will not. In the latter instances, the hearing officers will defer these issues until after the election. As it stands, which issues will warrant an evidentiary hearing and which will not remain somewhat unclear.

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On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.

As established by the Supreme Court in the 2010 opinion New Process Steel, the Board requires at least three sitting members to exercise its full authority. When former member Craig Becker’s recess appointment expired on January 3, 2012, the Board ceased to have the ability to exercise that authority. Some have contended that the Senate has been holding pro forma sessions – in which it convenes every few days but carries out no substantive work – in order to prevent the President from making new Board appointments. The President contends, however, that he has the authority to make recess appointments when the Senate is “effectively” in recess.

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Days after a U.S. District Court judge for the D.C. Circuit  suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. As announced in a press release, the Board:

has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

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The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.

According to the Board, it has received more than 65,000 written comments on the proposed rule. The agency also conducted a 2-day hearing in July to gather public input. Taking these comments into consideration, and “in light of the possibility that the Board will lose a quorum at the end of the current congressional session,” Board Chairman Mark Pearce “will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.” Given the current makeup of the Board, approval of the Chairman’s proposal is a foregone conclusion, with member Brian Hayes (R) sure to object. Following the vote, the Board will “proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.”

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Employers will now have until January 31, 2012 to comply with the National Labor Relations Board’s notice posting rule: Notification of Employee Rights under the National Labor Relations Act. This rule, which was slated to take effect as of November 14, 2011, mandates that all private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. Last month, the NLRB made available a copy of the required poster as well as a list of frequently asked questions about the rule.

According to a press release announcing the extension:

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

The rule itself is facing both legislative and legal challenges. Notably, the National Association of Manufacturers (NAM) has filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule. A hearing on motions for summary judgment is set for December 19, 2011. The court is expected to issue a decision on these motions before the rule’s new effective date.

For more information on the NLRB’s notice posting requirement, see Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles. In addition, Littler invites you to a complimentary webinar on the new rule and its workplace implications.

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While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012.

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Among the more significant initiatives that NLRB Acting General Counsel Lafe Solomon has pressed for is the implementation of a program to streamline the process for seeking Section 10(j) injunctive relief ‑ and to expand the substantive scope of when to pursue such serious relief.  Section 10(j) of the National Labor Relations Act (NLRA) permits the NLRB to seek a federal court injunction to proscribe unions and employers from committing unfair labor practices – the intended purpose being to use such drastic court-sought remedies where needed to maintain the status quo while a matter is pending before the Board. 

While Solomon focuses on the Section 10(j) program as a “top priority,” some have questioned whether the Board’s General Counsel even possesses the statutory power under the NLRA to approve independently such direct court action without the NLRB itself becoming involved. 

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During a web chat run by the Office of Labor Management Standards (OLMS) to discuss the agency’s regulatory agenda, OLMS Director John Lund fielded several questions – but provided few concrete answers – regarding the OLMS’s proposal to narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). This proposal would also expand what constitutes reportable “persuader activities” under the LMRDA, and subject employers and their advisors – including their attorneys – to new reporting requirements. Currently, employers are required to report information regarding persuader agreements with consultants on the Form LM-10, while consultants are required to report related information on the Form LM-20. Narrowing the “advice” exemption and expanding the definition of “persuader activities” would necessarily expand the reporting required on these forms.

Many of the participants expressed concern that determinations regarding whether attorney conduct constitutes “advice” or “persuader activity” necessarily involve an inquiry that infringes on the attorney-client privilege. In response, Lund clarified that “employers and consultants would not have to file reports concerning agreements whereby the consultants are engaged exclusively in providing advice or legal representation,” nor would they be required to disclose privileged information. Not satisfied with this answer, another questioner asked whether the OLMS has considered how it would be able to conduct an investigation into a union’s allegation that a company’s attorney has engaged in persuader activity and that the advice exemption does not apply while making sure not to overstep the bounds of attorney-client privilege. Lund did not explicitly answer this question, but instead made the broad claim that “investigators work closely with the Department’s lawyers to ensure that the privileges are protected.”

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Two months after the U.S. Supreme Court upheld the enforceability of an arbitration agreement that included a class action waiver clause, the National Labor Relations Board has issued a Notice and Invitation to File Briefs (pdf) on the issue of whether such an agreement constitutes an unfair labor practice, related to a Board case, D. R. Horton, Inc. v. Michael Cuda. The Supreme Court in AT&T Mobility v. Concepcion (pdf) held that the Federal Arbitration Act (FAA) preempted a California state supreme court decision that conditioned the enforceability of a consumer arbitration agreement on the availability of class-wide arbitration. The arbitration agreement that included the class waiver in that case, therefore, was deemed valid.

The administrative law judge in D.R. Horton similarly found that this practice did not violate the NLRA. The Board’s Acting General Counsel took exceptions to the ALJ’s decision. Following briefing by the parties in the case, the NLRB now seeks input from the public and has invited amicus submissions on the following question:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Many consider this challenge to be an attempt by the Board to make an end run around the Court’s finding in Concepcion. Those interested in filing briefs on this issue may do so on or before July 20, 2011. Briefs must not exceed 25 pages and must be filed electronically through the NLRB’s website.

The National Labor Relations Board is considering whether to change the current standard governing union information requests when an employer decides to relocate its business. In a memorandum (pdf) sent to all NLRB regional offices, Associate General Counsel Richard A. Siegel explains that in light of Chair Wilma Liebman’s recommendations made in her concurring opinion to the recent case Embarq Corporation and International Brotherhood of Electrical Workers Local Union No. 396, the General Counsel’s office is determining whether to modify the existing framework for assessing whether an employer must accede to a union’s demand for information prior to relocation.

In Embarq, the Board, applying the standard outlined in the 1991 case Dubuque Packing Co. for determining whether a relocation decision is a mandatory subject of bargaining, found that a company’s relocation was not a mandatory subject of bargaining because the employer had sufficiently demonstrated that the union could not have offered labor-cost concessions sufficient to change its decision to relocate. The Board further explained that because the decision to move was not a mandatory subject of bargaining, the employer was not required to provide the union with information related to the decision to relocate. In her concurring decision, Liebman noted that “current law does not compel the production of information at the time when it is sought – or, indeed, ever – if the Board, in hindsight, determines that concessions would have made no difference, even where . . . no bargaining ever occurred and the union had no opportunity to explore or influence the employer’s decision.”

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In keeping with NLRB Acting General Counsel Lafe Solomon’s recent announcement, the NLRB has formally filed a complaint (pdf) against the state of Arizona regarding its constitutional amendment that seeks to preserve the right to secret ballot elections.

In November 2010, voters in Arizona approved a provision to the state constitution that reads: “[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.” Similar measures were approved in Utah, South Dakota, and South Carolina.

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The NLRB’s Office of the General Counsel has issued a new memorandum (pdf) outlining the categories of cases that must be submitted to the agency’s Division of Advice.

Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.

The revised list provides some insight into the nature of cases the GC considers to be of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration. The GC Memorandum also includes many of the other types of cases to be submitted to the Division of Advice that were listed in the 2007 version of this document.

Of particular interest is the fact that the GC Memorandum lists a number of cases that are to be submitted to the Division of Advice because they “involve identified policy priorities.” Several of these cases may be of particular interest to those following the policy directions of the Board under the current administration, and they include the following:

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The NLRB has issued an invitation to file briefs (pdf) to help the agency define the scope of an employer’s duty to provide to the union “witness statements” it obtains in the course of an investigation. This issue arose in Stephens Media, LLC d/b/a Hawaii Tribune-Herald, (pdf) a case recently decided by the Board. In that case, the Board found that the employer had committed unfair labor practices related to the termination of an employee for insubordination.  Among other things, the Board found that the employer had violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to provide or delaying the provision of relevant information requested by the union. In deciding the case, however, the Board separated the question of whether the employer had a duty to provide the union with statements it obtained during the course of its investigation of the employee’s alleged misconduct. In discussing the reasons for severing this issue from the other ULP charges, the NLRB explained that:

Board precedent establishes that the duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Fleming Cos., 332 NLRB 1086, 1087 (2000), quoting Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). Compare Northern Indiana Public Service Co., 347 NLRB 210 (2006) (employer notes of investigatory interviews of employees held confidential). This case illustrates, however, that Board precedent does not clearly define the scope of the category of “witness statements.” This case also illustrates that the Board’s existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement: first asking if the statement is a witness statement under Fleming and Anheuser-Busch and then, if the statement is not so classified, asking if it is nevertheless attorney work product.

In its invitation, the Board asks whether it should continue to adhere to its decision in Anheuser-Busch, Inc. (pdf) that an employer’s duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements. If commenters believe that it should not rely on this precedent, the Board seeks input on the standard that should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct. Also, if the statements at issue are not witness statements, the Board asks whether such documents are “nevertheless [] privileged from disclosure to the union as attorney work product.”

Interested parties may electronically submit briefs no longer than 25 pages in length to the Board on or before April 1, 2011. Responsive briefs no longer than 10 pages may be filed by April 15.

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The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”

Section 203 requires an employer to report on Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees regarding their collective bargaining rights or to gather certain information about employee activities or a labor organization in connection with a labor dispute. The labor relations consultant must report on Form LM-20 information about such an agreement or arrangement. Currently, the LMRDA provides for certain “advice” exemptions from these reporting requirements. As explained by the OLMS, these exemptions “provide, in part, that no report is required covering the services of a consultant or other person by reason of his or her giving or agreeing to give advice to such employer, or representing or agreeing to represent the employer in administrative, arbitral, or court proceedings or in collective bargaining.” More information on the various disclosure forms can be found here.

During a recent web chat to discuss the OLMS’s regulatory agenda, OLMS Director John Lund said that the agency intends to publish a proposed rule by June of this year that would narrow the scope of the advice exemption and expand persuader reporting under Section 203. If the new regulations are enacted in the manner expected, they could significantly impair employer speech rights and the right to legal counsel during union organizing campaigns.

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The U.S. Transportation Security Administration (TSA) has given airport security screeners limited collective bargaining rights. In his determination (pdf) conferring such rights, TSA Administrator John Pistole provides a collective bargaining framework that “retains the capability and flexibility necessary to respond to evolving threats, and continue improving employee engagement, performance and professional development.” In November 2010, the Federal Labor Relations Authority (FLRA) issued a decision that permitted Transportation Security Officers (TSOs) to vote for union representation, but did not grant the potential union representative the power to bargain collectively with the agency.

According to a fact sheet, more than 13,000 TSOs are paying dues to one or more unions that provide personal rather than collective representation. Further, these unions are not permitted to bargain on behalf of TSA employees. Pistole’s 21-page determination provides for collective bargaining at the national level on non-security employment issues only. Such topics include shift and annual leave bids (excluding shift start times and types of shifts, number of shifts, days off, and guarantee of consecutive weeks); transfers; the awards and recognition process; shift trade policy; process for work status change from full time to part time and vice versa; uniforms; selection process for special assignments; and parking subsidies. The determination prohibits local-level bargaining at individual airports, as well as bargaining on security-related topics such as security policies; procedures or the deployment of security personnel or equipment; pay, pensions and any form of compensation; proficiency testing; job descriptions and qualifications; fitness for duty standards; performance standards and staffing; numbers and types of employees; and disciplinary standards. In addition, TSOs have no right to strike or engage in work slowdowns.

If a majority of TSOs vote in favor of unionization, they will retain the option of becoming members and/or paying union dues. The first FLRA-conducted election – which could affect close to 50,000 airport screeners – is slated to occur this Spring. The two unions that will appear on the ballot are the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU).

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According to the NLRB’s Summary of Operations for FY 2010, regional NLRB offices conducted more representation elections, processed more unfair labor process (ULP) charges, received more certification and decertification petitions, and recovered more than $9 million more in backpay and fees, dues and fines in FY 2010 than it did during the prior year. Among other things, the summary provides a general overview of the operations and enforcement undertaken by the NLRB during 2010. Highlights of the summary include the following:

• According to the NLRB, the agency exceeded all three of its target goals for 2010. Specifically, the NLRB closed 86.3% of all representation cases within 100 days, 73.3% of all ULP cases within 120 days, and 84.6% of all meritorious ULP cases within one year.
• In FY 2010, the agency recovered $86,557,684 in backpay and reimbursement of fees, dues and fines, up from $77,611,322 collected the previous year.
• There was a 10.1% increase in certification and decertification petitions filed (2,969) in 2010, up from 2,696 in 2009.
• Total case intake was 28,585, up from 25,413 in 2009. Of these cases, the most (23,381) were ULP cases; 3,204 were representation cases, amounting to a 10% increase.
• With respect to representation cases, the NLRB regions conducted 1,790 initial representation elections in FY 2010. According to the summary, 92.1% of these elections were held pursuant to agreement of the parties.
• As a result of the Board’s decision in Dana Corp., 351 NLRB No. 28 (2007), in which it held that an employer’s voluntary recognition of a labor organization does not bar a decertification or rival union petition that is filed within 45 days of the voluntary recognition notice, the agency received 254 requests for Dana notices in 2010.

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In a new General Counsel (GC) memo – Revised Casehandling Instructions Regarding the Use of Default Language in Informal Settlement Agreements and Compliance Settlement Agreements – to all NLRB regional directors, officers-in-charge and resident officers, acting GC Lafe Solomon has instructed that all settlement agreements—including both informal and compliance settlements—should include the following default language:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party /Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

The memo further instructs that if a complaint has not already been issued, regional directors should incorporate language stating a complaint will be filed and that by signing the agreement, the party waives any right to file an answer. If the compliance specification has not been issued in a compliance case, the memo states the default language should provide that the Regional Director will issue a compliance specification that lists all liquidated backpay or other remedial provisions and provides that signing the agreement constitutes a wavier of any right to file an answer.

According to Solomon, using default language in settlement agreements “is an effective and appropriate means to ensure that a charged party/respondent will comply with the affirmative provisions of the settlement agreement.” In practice, however, such language may put employers at a disadvantage in the event the union believes the employer is in violation of the settlement.

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On Friday, John Lund, Director of the Office of Labor-Management Standards (OLMS), conducted an online chat to discuss the agency’s upcoming regulatory activities. Lund noted, for example, that by July 2011, the agency plans to issue a final rule on Form LM-30, the Labor Organization Officer and Employee Report required under the Labor-Management Reporting and Disclosure Act (LMRDA), “to identify potential conflicts of interest between the labor organization officials and their labor organizations.” A proposed rule to revise this disclosure form was published in August 2010.

By June of this year, Lund said the OLMS intends to publish a proposed rule to expand the scope of employer-consultant reporting required under Section 203 of the LMRDA. As Lund explained, under the LMRDA, an employer must report on Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees regarding their collective bargaining rights, or to gather certain information about employee activities or a labor organization in connection with a labor dispute. The labor relations consultant must report on Form LM-20 information about such an agreement or arrangement. Currently, the LMRDA provides for an “advice” exemption from these reporting requirements. The proposed rule under consideration would narrow the scope of the advice exemption and expand persuader reporting.

Similarly, Lund said that the OLMS plans to issue a notice of proposed rulemaking to review the Form LM-21 Receipts and Disbursements Report required of consultants concerning persuader agreements with employers. Lund clarified during the chat that such a proposal would require electronic filing of Form LM-21, and would possibly revise its layout and instructions. In addition, the OLMS also may reconsider the detail that is required to be reported on Form LM-21, although he did not discuss any specific changes.

Lund also noted that the agency intends to publish this month a Request for Information regarding the use of electronic balloting in union officer elections.

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In a bizarre and convoluted decision (pdf) issued by the Federal Labor Relations Authority (FLRA), Transportation Security Administration (TSA) employees will be permitted to vote for union representation, even though the union, if elected, will not have the power to bargain collectively with the agency. The FLRA’s move will, in theory, allow a union to be in place should Congress or the TSA permit officers to one day engage in collective bargaining. Although this decision will impact TSA employees only, it is further evidence of the administration’s overall concerted effort to advance union interests through administrative actions. Moreover, as discussed in a well-reasoned dissent, the FLRA’s logic in this decision is deeply flawed.

Enacted in 2001, the Aviation and Transportation Security Act (ATSA) provides that the Under Secretary of Transportation for Security has the power to, among other things, determine the compensation, terms and conditions of employment for employees who carry out security screening functions. Accordingly, in a 2003 memorandum, the Under Secretary declared that TSA officers, “in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.”

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As has been anticipated in labor circles since President Obama took office, on Tuesday, the National Labor Relation Board (NLRB or “Board”) announced (pdf) that it would reconsider its decisions in Dana Corp., 351 NLRB 434 (2007) (pdf) and MV Transportation, 337 NLRB 770 (2002) (pdf), cases that address voluntary recognition agreements and successor employers, respectively. The five-member Board agreed 3-2 along party lines to consider two groups of consolidated cases that ask the agency to overturn in whole or in part its rulings in these two earlier decisions. NLRB Chair Wilma Liebman dissented in both cases when they were originally issued and the decisions are part of a larger group of controversial decisions issued by the Bush-era Board that organized labor is dedicated to revisiting.

In Dana Corp., the Board held that in the event an employer voluntarily recognizes a union based on the majority of signed authorization cards, employees must receive written notice of this recognition and of their right, within 45 days of the notice, to either file a decertification petition or support a representation petition filed by a rival union. If the notice is provided and the employees do not attempt to decertify the union within that period, the union’s majority status is presumed for a reasonable period of time to allow the parties to engage in collective bargaining. According to the Board’s notice and invitation (pdf) to file briefs in this matter, Dana “represented a major departure from prior law and practice respecting voluntary recognition agreements.” In reconsidering this case, the Board is seeking input on the following questions:

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The Office of Federal Contract Compliance Programs (OFCCP) has issued a directive on its verification procedures under Executive Order (E.O.) 13496, Notification of Employee Rights under Federal Labor Laws. (pdf) This E.O. mandates that all government contracting departments and agencies include a provision in government contracts covered by the order stipulating that contractors and subcontractors post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA). The Department of Labor’s Office of Labor Management Standards (OLMS) published a final rule (pdf) implementing this E.O. last month. The OFCCP is responsible for investigating complaints, performing compliance evaluations, conciliating compliance issues, and referring violations to the OLMS for enforcement. The directive published online this week outlines the processes and procedures it will use to perform these tasks.

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As a result of the NLRB’s June 3, 2010 decision (pdf) refusing to review a regional director’s ruling that the interns and residents at St. Barnabas Hospital in the Bronx, New York, are employees, the ballots they cast in a union election on June 18, 2009 will shortly be counted. The results of the vote will determine whether the hospital’s interns and residents will be joining the Service Employees International Union (SEIU). The central issue presented by the election petition filed by an SEIU local in 2009 was whether the hospital’s interns and residents were “employees” with the right to organize, or students not covered by the National Labor Relations Act (NLRA).  Continue reading this entry at Littler's Healthcare Employment Counsel blog. 

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