On July 30, 2012, the Board issued its decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), holding that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. In Banner Health, the Board rejected the employer's argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' Section 7 rights. Instead, the Board concluded, in every investigation, an employer must identify a specific need to protect witnesses, avoid spoliation of evidence or fabrication of testimony, or prevent a cover-up, before instructing employees to maintain confidentiality. Consequently, in the Board’s view, the blanket confidentiality instruction at issue in Banner Health violated the Act.
The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress.
The Board’s challenged rule would have forced six million employers throughout the country to post the Board’s mandatory notice of employee rights to organize unions (and related topics), under threat of an unfair labor practice finding by the agency. Moreover, failure to post the required notice would have permitted the Board to extend the usual six-month statute of limitations period in unfair labor practice cases. The rule also permitted the Board to consider an employer’s refusal to post the notice as evidence of unlawful motive in unfair labor practice cases.
On Friday the House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) by a vote of 219-209. The measure was approved largely along party lines, although 10 Republican members did vote against it. This bill would limit National Labor Relations Board activities until at least three members are confirmed by the Senate, President Obama’s recess appointees’ terms expire, or until the U.S. Supreme Court weighs in on the legitimacy of the recess appointments. Specifically, this bill would prevent the Board from implementing, administering, or enforcing any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012 – the date the President sat three members via recess appointment – that requires a quorum. The measure would allow NLRB regional offices to continue to accept and process unfair labor practice charges. In the event additional Board members are validly confirmed, all of the actions carried out by the prior Board staffed with the recess appointees would require review. Continue reading this entry at Littler's DC Employment Law Update.
The National Labor Relations Board, Office of the General Counsel, recently issued an Advice Memorandum, finding an employer’s “Code of Conduct” policy did not violate Section 8(a)(1) of the National Labor Relations Act. On the surface, this appeared to be a brief respite in the Board’s trend of finding a myriad of statements, policies, and other handbook provisions unlawful. But closer inspection does not offer as many practical solutions as employers may hope. The Code of Conduct is a 43-page Ethical Business Conduct Guidelines manual. The bulk of the manual sets forth the employer’s business ethics policies and additional business compliance issues, with examples. In addition, the employer presents, distributes, and discusses the material at a mandatory, day-long training and orientation where both employees and union representatives are present. The company provides further online resources, which include a Frequently Asked Questions section, dedicated to clarifying the policy. It is in the online FAQs that the employer defines the scope of the policy by saying it does not apply to employees’ “constitutional, statutory, or other protected rights.” These monumental facts, as well as others, led to the recommendation that the Region dismiss the charge alleging the policy violated Section 8(a)(1) by restricting employees’ Section 7 activities.
As a result of the recent federal court decision that President Obama’s three recess appointments to the NLRB were unconstitutional, past and future Board decisions and agency actions are constitutionally suspect and open to judicial challenge, according to lawmakers and panelists during a congressional subcommittee hearing held on Wednesday. The House Subcommittee on Health, Employment, Labor, and Pensions conducted this hearing, entitled: “The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions” to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning v. NLRB decision. Continue reading this entry at Littler's DC Employment Law Update.
Photo credit: webphotographeer
By Jeff Place
The Board’s recent decision in DirectTV, 359 NLRB No. 54, represents another example of its ongoing effort to ensure the relevancy of the National Labor Relations Act in the 21st century by applying its protections to a broad range of personnel policies common among non-unionized employers. Many employers have issued policies intended to protect legitimate company interests, such as safeguarding the company’s confidential information or ensuring that only official company spokespersons make public statements on behalf of the company. Under the current Board, however, such common employer policies may be deemed to chill employee exercise of activity protected under the Act. Thus, for example, the Board has long held that employees have a protected right under Section 7 to discuss their wages, hours, and terms and conditions of employment with each other, with representatives of labor unions, with members of the media, and with the public in general. This includes a right to air disputes between employees and the company publicly. If the Board concludes that a generally applicable company policy is either overly broad or sufficiently ambiguous that it could reasonably be expected to deter an employee from engaging in protected communications, it will order the employer to rescind the policy.
In a split decision, the California Supreme Court has upheld the constitutionality of two statutes that restrict state court injunctions against picketing by labor unions on private property. Ralphs Grocery Co. v. United Food and Comm. Workers Union Local 8, No. S185544 (Cal. Dec. 27, 2012). Although mass picketing and violence were not involved in this case, one of the two statutes also substantially limits the ability of employers to obtain injunctive relief against such picket line misconduct by labor unions. To learn more about the decision, please see Littler's ASAP, California Supreme Court Permits Picketing on Private Property, by William Emanuel.
Michigan became the 24th “Right to Work” state when Governor Rick Snyder signed into law on December 11, 2012, Public Act No. 348. This right to work law, which is titled the Workplace Equity and Fairness Act, is an amendment to Michigan 1939 PA 176, and applies to private sector employees, employers, and labor organizations. Governor Snyder also signed into law a right to work law for the public sector. That law is known as Public Act No. 349 and amends Michigan 1947 PA 336. Both statutes are to take effect on the 91st day after final adjournment of the 96th Legislature’s 2012 Regular Session, or approximately March 28, 2013. However, the effect of the laws will not be immediate for everyone, as current collective bargaining agreements are “grandfathered” and the new right to work provisions will take effect upon the expiration of those agreements.
D.C. Circuit Approves Expanded Financial Disclosure Obligations for Employers who Claim Competitive Disadvantage at the Bargaining Table
By Jeff Place
Since the 1950s, the National Labor Relations Board (“the Board”) has consistently held that employers who assert during collective bargaining negotiations that they “cannot afford” to meet a union’s economic demands are obligated to submit to a comprehensive financial audit at the union’s request, in order to prove the accuracy of employer “claims of poverty.” In contrast, for the past 20 years the Board has generally held that employers who only claim that meeting a union’s economic demands would put them at a “competitive disadvantage,” rather than flatly asserting that they “cannot afford” to meet a union’s economic demands, will not be required to submit to a union financial audit. Thus, management bargaining representatives have regularly cited “competitive pressures” when rejecting union economic demands, without concern that this rationale for rejecting union demands would subject the company to onerous disclosure obligations.
Last week the House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board (NLRB or “Board”) that the Committee contends are indicative of the agency’s pro-union bias. Rep. Darrell Issa (R-CA) chairs the Committee. The report – President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate (pdf) – claims that these legislative, regulatory, and internal missteps “compromise the perceived fairness of the NLRB that Congress deemed necessary for its successful operation,” and have created a “rogue agency plagued by systemic problems.” The 33-page report touched on a number of perceived faults with the Board’s operation and decision-making process, including the following:
On November 2, 2012, in San Miguel Hospital Corp. v. National Labor Relations Board, No. 11-1198, the Court of Appeals for the D.C. Circuit rejected a New Mexico hospital’s contention that a “wall-to-wall” bargaining unit comprised of both professional and non-professional employees was an inappropriate unit for collective bargaining. Accordingly, the court found that the hospital violated Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA) when it refused to bargain with the National Union of Hospital and Healthcare Employees District 1199. To learn more about the decision, please continue reading at Littler's Healthcare Employment Counsel.
NLRB Division of Advice Finds Employer's Social Media Policy, Employee Termination Based on Customer Criticism, Lawful under NLRA
The National Labor Relations Board’s Division of Advice has sanctioned another employer’s social media policy and actions taken against an employee for the policy’s violation. In an advice memorandum issued on October 19, 2012, Barry J. Kearney, Associate General Counsel for the NLRB’s Division of Advice, recommended the dismissal of unfair labor practice (ULP) charges lodged against Cox Communications on the grounds that neither its social media policy nor the termination of an employee for violating this policy interfered with employees’ Section 7 activities under the National Labor Relations Act (NLRA).
The complaining employee in this case was a customer service representative responsible for responding to customer concerns and complaints about the employer’s services. After a confrontational exchange with an irate customer, the employee used his cellphone to make disparaging remarks about the customer on his Google+ account. Specifically, the employee posted the following comment: “Just because you are having problems with your tv service does not mean you should call me a fa--ot! F--K YOU!” A coworker responded with a comment mocking the employee and the situation.
The NLRB General Counsel’s Division of Advice has issued opinions in two cases (available here and here), finding the employers’ handbook provisions concerning “at-will employment” to be lawful. The Advice Memoranda, both dated October 31, 2012, provide much needed guidance for employers whose handbooks and policies advise employees that their employment is “at will” and may be terminated at any time. As the General Counsel observes in both memoranda, it has become commonplace for employers to rely on such policy provisions as a defense against employees asserting that the employee handbook creates an enforceable employment contract. Whether such provisions would pass scrutiny by the NLRB, however, has been an open question.
In American Red Cross Arizona Blood Services Region, Case 28 CA-23443 (Feb. 1, 2013), an administrative law judge (“ALJ”) found one employer’s “at will employment” provision unlawfully interfered with employee rights by requiring employees to sign an acknowledgement stating “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” The ALJ reasoned that this essentially required that employees agree that their “at will” status could not be changed, thereby effectively waiving their right to seek a “just cause” provision through organizing and bargaining for a union contract. That case settled without any ruling by the NLRB, leaving a cloud of doubt surrounding other “at will employment” provisions.
On October 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed the National Labor Relations Board's decision that licensed practical nurses (LPNs) employed at a long-term health care facility were not supervisors under the National Labor Relations Act. Indeed, the court emphasized that, "while we are mindful of the limited nature of our review in this appeal, this is not a case in which we merely disagree with the board's conclusions. Our review of the record as a whole reveals that the board meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result." This decision will be a strong weapon for long-term healthcare employers seeking to ward off unionization of nurses at their facilities. To learn more about the decision, please continue reading Littler's ASAP, Eleventh Circuit Rules Licensed Professional Nurses Are Supervisors, Providing Strong Ammunition to Long-Term Healthcare Facilities, by Todd Nierman, Gregory Richters, and Christine Tenley.
Massachusetts Healthcare Bill Bans Mandatory Overtime for Nurses and Limits Spending to Oppose Unionization
On August 6, 2012, Governor Deval Patrick of Massachusetts signed into law Senate Bill 2400, "An Act improving the quality of healthcare and reducing costs through increased transparency, efficiency and innovation." The law is primarily intended as a healthcare cost containment measure and has received some fanfare for that aspect. What has received considerably less attention are two provisions of the law that apply to hospitals as employers. The first prohibits mandatory overtime for nurses. The second bans hospitals from using government funds to pay employees or labor consultants to persuade employees to support or oppose unionization. To learn more about the law and its potential implications for hospital employers, please continue reading Littler's ASAP, Massachusetts Healthcare Bill Bans Mandatory Overtime for Nurses and Limits Spending to Oppose Unionization, by John Doran and Carie Torrence.
On Friday the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s motion to reconsider the court’s May 14 finding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011. A year earlier, the U.S. Supreme Court held in New Process Steel that the Board must act with at least three sitting members to exercise its full authority. In the case at hand, the D.C. federal court agreed with arguments made by the U.S. Chamber of Commerce and Coalition for a Democratic Workplace that the agency did not have the authority to adopt the election rule, as only two members – Chairman Mark Gaston Pearce and former member Craig Becker – actually cast votes in the rule’s favor. Member Brian Hayes had voted against an earlier version of the rule and declined to participate in the December vote.
In its efforts to persuade the district court to revisit its decision, the Board presented new evidence to support its position that Member Hayes was present in the electronic voting room the day of the election rule vote, and in fact cast his vote on other matters. The court’s memorandum opinion (pdf) issued by Judge James Boasberg, however, states that this information was “offered too little too late.” In denying the NLRB’s motion, Judge Boasberg emphasized that “the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court’s contrary finding was ‘clear error.’” Even if this information had been offered earlier, the judge claims that “it likely would not have changed the outcome even then, and it certainly does not establish ‘clear error’ or ‘manifest injustice now.’”
The Board already suspended the election rule’s implementation and withdrew related guidance. It is expected that the Board will appeal the July 27th decision, and the matter will ultimately be resolved by the appellate courts.
Photo credit: MBPHOTO, INC.
On Wednesday the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing to discuss three legislative proposals to amend the National Labor Relations Act (NLRA). During the hearing – Examining Proposals to Strengthen the National Labor Relations Act – members of the subcommittee and panelists debated the merits of the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, (pdf) Secret Ballot Protection Act, (pdf) and the Tribal Labor Sovereignty Act. (pdf) Continue reading this entry at Littler's DC Employment Law Update.
NLRB Finds Union Waiver in Two Recent Decisions, Including the Closely-Watched Hospital Flu Shot Case
The National Labor Relations Board affirmed the 2011 administrative law judge decision dismissing the finding that the union waived its right to bargain with Virginia Mason Hospital over implementation of a policy requiring nurses to take a flu shot or wear a facemask. During the same week, the Board held an employer did not violate the National Labor Relations Act when it unilaterally implemented a new safety procedure that required employees to spend 5-10 minutes at the beginning of each shift reviewing and initialing a safety checklist. To learn more about the decisions and their potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.
In Frenchtown Acquisition Co. v. NLRB, the Sixth Circuit Court of Appeals ruled that nursing home charge nurses were not “supervisors” under the National Labor Relations Act (NLRA) and therefore were free to unionize. The court rejected the nursing home operator’s argument that the charge nurses were supervisors of the nursing aides, finding that they did not engage in supervisory activities, as defined by the NLRA.
The NLRA defines a supervisor as an individual who has the authority to engage in any one of the following 12 supervisory functions: hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, disciplining, or responsibly directing other employees.
In Frenchtown, the Sixth Circuit rejected the employer’s claim that charge nurses disciplined, hired, assigned, transferred, and responsibly directed nursing aides, engaging in a fact-intensive analysis of each of the employer’s claims. The court dissected the examples of the activities the nurses performed, reflecting not only the high level of scrutiny that is given to such claims, but also providing insight into the court’s view of the requirements for each of the supervisory functions alleged.
To learn more about the decision and its potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.
The yearly revisions to employers’ medical plans before open enrollment is a common practice that rarely generates thoughts beyond controlling costs. For the unionized employer with a non-union medical plan, the process is more nuanced. This is especially true when the collective bargaining agreement has expired and the parties have not reached a new agreement. In E.I. Du Pont de Nemours and Company v. NLRB, 2012 U.S. App. LEXIS 11604 (D.C. Cir. June 8, 2012), the employer was in just such a position and moved forward with changes to its medical plan post-contract expiration. In fact, the employer had made changes to its medical plan each year prior to open enrollment without bargaining and without objection from the union. The contract provided for unionized employees to participate in the plan “subject to the terms and conditions” of the plan. The plan itself contained a reservation of rights clause allowing for the changes in price or level of the plan coverage prior to annual enrollment.
As expected, the union filed an 8(a)(1) and 8(a)(5) charge, claiming the employer made a unilateral charge to the medical plan during ongoing negotiations with the union. Equally as expected, the National Labor Relations Board held the employer violated the Act.
The D.C. Circuit, however, held the Board departed from its precedent of allowing changes in working conditions made after contract expiration when the changes were grounded in past practice. In its findings, the court rejected the Board’s argument that the past practice was only during the term of the contract and there was no past practice of changes post-contract expiration. The court also rejected the Board’s argument that the past practice arose pursuant to the management rights clause, explaining that the lawfulness of the change does not depend on the survival of a contractual waiver but on whether the change is grounded in a past practice. Quoting the Board’s own words in previous cases, the court found the “past practice is not dependent on the continued existence of the [expired] collective bargaining agreement.”
While the court’s remand of the case back to the Board may be a victory for this employer, the Board is not bound by the court’s decision in any other cases. As a result, employers will continue to face questions regarding post-contract expiration changes to health and welfare plans and should anticipate the current Board’s analysis of such changes.
Lafe Solomon, Acting General Counsel of the National Labor Relations Board, spoke on June 11, 2012, at the annual meeting of the Connecticut Bar Association and made a number of comments on issues of concern to employers.
Social Media Policies. Solomon said there are now about 100 charges pending at the Board related to social media issues. The Acting General Counsel has taken an active role in handling these cases, both by having decisions about them centralized in the Division of Advice and by issuing three public memoranda wherein he discusses what social media actions are protected by the National Labor Relations Act and the kinds of employer policies that may violate the Act. Solomon pointed out that while the Board does not issue advisory opinions, his most recent memorandum includes the full text of an employer’s social media policy that the Division of Advice found to be lawful in its entirety.
Solomon acknowledged that the same memorandum contradicts advice that some Regional Directors previously gave to employers that they could cure potential faults in social media policies by including a savings clause telling employees the policy would not prohibit discussions of wages, hours and working conditions or other activities protected by the Act. This point also is discussed in Littler’s recent ASAP. Solomon said that he and others at the Board’s national office in Washington, D.C. decided that “a savings clause no longer protects an unlawful provision” in such a policy.
By Tom Dowd
A recently enacted Maryland law prevents employers from compelling union representatives from disclosing information or communications received from employees in confidence concerning workplace grievances. Signed into law on May 2, 2012 and effective October 1, 2012, Senate Bill 797 (pdf) specifically provides that, with limited exceptions:
a labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance.
This protection would not apply to criminal proceedings, nor to information that would be necessary to prevent “certain death or substantial bodily harm.” In the latter instance, a union or its agent would in fact be compelled to disclose such information.
To be shielded by this new state law, the communication or information at issue must be relevant to a grievance and be subject to an investigation, grievance procedure, or other administrative or civil proceeding. This union/employee privilege would continue even after the employee’s termination or the labor representative’s relationship with the union.
In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:
Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.
On April 26, 2012, Sen. Marco Rubio (R-FL) introduced legislation that would amend the National Labor Relations Act (NLRA) to permit employers whose workplaces are governed by collective bargaining agreements to award their employees with additional wages or other compensation for their job performance. A week earlier, Rep. Todd Rokita (R-IN) introduced the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act (H.R. 4385, S. 2371) in the House of Representatives. Continue reading this entry at Littler's Washington DC Employment Law Update.
A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure. Continue reading this entry at Littler's Washington DC Employment Law Update.
Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012.
The court states in the order:
We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.
The order schedules oral argument in this case for September 2012. A final decision on the merits in this matter, therefore, is not expected until the fall of 2012 at the earliest.
For the time-being, employers do not have to post the NLRB notice, and the April 30 deadline is no longer in effect for the posting. The existing posting requirement for federal contractors, however, remains in effect. That said, the cases are still subject to final disposition by the courts of appeals, and even possibly the U.S. Supreme Court, which will have the final word on whether the NLRB can make employers post a notice or not. We will continue to monitor this issue for developments.
Photo credit: istockphoto
A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees. The rule includes a number of enforcement provisions that have been highly contested. Among other remedies for a posting rule violation, the Board would be permitted to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would also deem an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” as well as render a failure to post the required notice a ULP in its own right. Last month, the U.S. District Court for the District of Columbia struck down the enforcement provisions of the rule, but upheld the Board’s authority to issue the rule in the first instance.
In the latest case, Chamber of Commerce v. NLRB, (pdf) plaintiffs argued that the notice posting rule is unlawful because: (a) the Board lacked the authority to promulgate the rule; (b) the Board exceeded its authority by creating a new ULP and by authorizing tolling of the statutorily-mandated six-month statute of limitations for filing a ULP charge; and (c) the rule violates an employer’s free speech rights. In its decision, the U.S. District Court for the District of South Carolina determined that based on the plain language and structure of the NLRA, the Board lacked the authority to promulgate the rule in the first place. The court, therefore, did not reach the second two arguments questioning the rule’s legitimacy.
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.
In Shelter Distribution Inc. v. General Drivers, Warehousemen & Helpers Local Union No. 89, No. 11-5450 (6th Cir. Mar. 16, 2012), the Sixth Circuit Court of Appeals held that nothing in ERISA prohibits a union from contractually agreeing to be held liable for an employer’s withdrawal liability under the Multiemployer Pension Plan Amendments Act (“MPPAA”). The Sixth Circuit thus joined the Third Circuit in enforcing such indemnity provisions. To learn more about the decision and its potential implications for employers, please continue reading at Littler's Employee Benefits Counsel.
On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures. Rep. Phil Gingrey (R-GA) introduced the resolution in the House with 64 co-sponsors. Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced a companion resolution with identical language in the Senate with 43 co-sponsors. Continue reading this entry at Littler's Washington DC Employment Law Update.
On February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three most recent Board additions were seated via recess appointment last month. The President’s decision to exercise his recess appointment power while the Senate was still holding brief pro forma sessions has generated a substantial amount of controversy, as expressed during a congressional hearing held last week. The legality of this move is currently being challenged judicially and through legislation. While Obama announced his intent to nominate Flynn in January 2011, he did not name Block and Griffin as his choices until December 14, 2011.
Given the ongoing disagreement about the validity of the recess appointments, the Senate is not likely to confirm the appointees. If the Senate were to approve their nominations, however, Block’s term would expire on December 16, 2014; Flynn’s term would last until August 27, 2015; and Griffin’s term would end on August 27, 2016.
Littler Shareholder Stefan Marculewicz Testifies at Congressional Hearing Addressing NLRB Recess Appointments
Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions. Continue reading this entry at Littler's Washington DC Employment Law Update.
Update: On February 6, 2012, the Senate approved the conference report by a vote of 75-20. On February 14, 2012, President Obama signed this bill into law.
As expected, the House of Representatives approved the conference report to the Federal Aviation Administration (FAA) funding bill that includes significant restrictions over air and railway union organizing. The House voted 248-169 in favor of the report reconciling the House and Senate versions of the FAA Modernization and Reform Act of 2012 (H.R. 658), which reauthorizes the agency’s programs and provides its funding for a four-year period. Continue reading this entry at Littler's Washington DC Employment Law Update.
In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.
In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures. Among other changes, the rule will:
The National Labor Relations Board’s Office of the General Counsel has once again directed changes to the Board’s arbitration deferral policy. In a memorandum (doc) issued on January 20, 2012, Acting General Counsel (GC) Lafe Solomon seeks to prevent the routine deferral of Section 8(a)(1) and 8(a)(3) cases to arbitration if resolution of these unfair labor practice (ULP) charges by arbitration cannot be achieved within one year. The GC would apply this change in policy to cases that have already been deferred to arbitration – but have been pending for more than one year – as well as new cases in which there are indications that resolution via arbitration would likely take considerable time. The new policy would apply only in situations in which grievance-arbitration procedures are already explicitly laid out in a collective bargaining agreement. The new deferral policy would also apply – albeit under very limited circumstances – to cases involving allegations of contractual violations under Section 8(a)(5).
Under the long-standing arbitration deferral policy, as established by the decision Collyer Insulated Wire, the Board defers making a final determination on certain ULP charges when a grievance involving the same issue(s) can be processed under the grievance/arbitration provisions of the parties’ collective bargaining agreement. The purpose of doing so, according to the Board, is to encourage collectively-bargained dispute resolution. In January of last year, the GC first sought to amend Collyer deferral by instructing NLRB regional offices not to “defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator.” According to a Board press release, the new directive builds upon these earlier changes.
The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions. The crux of the argument is that since the Senate was not technically in recess at the time of the appointments, the President lacked the authority to seat new Board members without the Senate’s advice and consent. When Obama made these appointments, the Senate was holding regular pro forma sessions in which the chamber convenes but conducts no substantive business.
This challenge to the three new recess appointments was added to an existing consolidated lawsuit opposing the NLRB’s notice posting rule filed by, among other entities, the NRTW, Coalition for a Democratic Workplace (CDW), and the National Federation of Independent Business (NFIB). This new rule mandates that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (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. According to the NRTW’s motion and memorandum in support, (pdf) because the recess appointments are not Constitutionally legitimate, the NLRB lacks the quorum needed to implement and enforce the notice posting rule.
In D.R. Horton, Inc., (pdf) the National Labor Relations Board, by a 2-0 vote, found that an arbitration agreement requiring "as a condition of employment" all employees to agree to waive the right to bring class or collective actions in any forum violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which guarantees the rights of employees to engage in concerted, protected activity. The decision was issued by Board Chairman Mark Pearce and Member Craig Becker on January 3, 2012, the final day of Member Becker's controversial recess appointment. Republican Board Member Brian Hayes was recused and did not participate in deciding the merits of the case. The decision has potentially wide-ranging implications for employers who have required employees to agree to arbitrate their disputes and at the same time waive the right to pursue their claims on a class or collective basis. The decision, however, also leaves open the possibility that agreements that are not "imposed" on employees may yet be enforceable, even if those agreements ban class or collective actions in any forum. Continue reading about this development here.
Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.
In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires this week, the Board will be left with Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time.
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 same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule. Continue reading this entry at Littler's Washington DC Employment Law Update.
During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (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. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. Notably, the rule permits the NLRB to toll the six-month statute of limitations period for filing a ULP complaint if the employer fails to post the required notice. Moreover, the rule allows the NLRB to deem the failure to post the notice evidence of anti-union animus in a case where such an allegation is raised.
The consolidated lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Fund Inc. (NRTW) alleges that the agency overstepped its statutory authority and ignored congressional intent in promulgating the rule. In a press release, NAM reports that at the December 19 hearing Judge Berman Jackson “acknowledged the complexities of the issues presented in the case and again encouraged the Board attorneys to discuss delaying implementation of the rule until the court has reached an opinion.” A similar lawsuit contesting the NLRB rule has been filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce.
Several bills also have been introduced to rescind this posting rule, although to date, none have advanced.
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The National Labor Relations Board has issued a new rule (pdf) outlining special procedures governing the filing of certain motions and appeals with the Board in the event it lacks a quorum and thus cannot exercise its full authority. It is anticipated that after Member Craig Becker’s term expires at the end of the year, the Board will be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – unless the Senate confirms additional members and/or the President makes any recess appointments. House procedural maneuvers will likely prevent the latter from happening. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to be fully operational. The consideration of cases and issuance of decisions falls under the category of Board activities that requires three sitting members. To that end, the new rule, effective Dec. 14, describes the procedural routes that certain motions and appeals should take until the Board achieves at least a 3-member quorum.
Two-Member NLRB Majority Adopts Unprecedented Resolution to Move Forward With Subset of Election Rule Amendments
By David Kadela
In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.
What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority. Continue reading about this development here.
House Passes Workforce Democracy and Fairness Act While Board Approves Resolution to Change Election Rule
As expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution approving a handful of proposed election rule changes. Continue reading this entry at Littler's Washington DC Employment Law Update.
NLRB Issues New Order Anticipating the Loss of One or More Members as Concern Mounts over Potential Hayes Resignation
The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires at the end of the year, the Board will be left with Chairman Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time. There also has been speculation that Member Hayes might resign to prevent the remaining members from finalizing contentious Board rules.
In the event the Board is left operating with less than a three-member quorum, the Order grants the GC authority over appointments and other personnel decisions with respect to Regional and Subregional Directors and officers and over the establishment of Regional and Subregional offices. In addition, the Order grants the Chairman and the GC the joint authority to make decisions concerning the apportionment and allocation of funds and the establishment of personnel ceilings within the Agency and delegates to the Chief Administrative Law Judge authority over appointments and other personnel decisions concerning any Administrative Law Judge. The Order makes each delegation of authority subject to the right of any sitting Board Member to request full-Board consideration of any particular decision.
The House of Representatives has set the stage for future debate and vote on the Workforce Democracy and Fairness Act (H.R. 3094), a bill that would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and serve as a preemptive strike against the National Labor Relations Board’s proposed changes to representation election procedures. On Friday, the House voted 239 - 167 in favor of a rule (pdf) that will, among other limitations, provide for one hour of general debate on the measure and consideration of four proffered amendments to the legislation. Continue reading this entry at Littler's Washington DC Employment Law Update.
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.”
On Thursday Sen. Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843), a bill that would effectively revoke the National Labor Relations Board’s recent decision in Specialty Healthcare, and establish criteria for determining an appropriate bargaining unit. In Specialty Healthcare, the Board determined a petitioned-for unit will be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. If an employer contends that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. Many have argued that this decision will result in much smaller “micro” bargaining units that are easier to organize and more difficult for employers to administratively manage. Continue reading this entry at Littler's Washington DC Employment Law Update.
Anticipating that the National Labor Relations Board may be left with only two sitting members come January, the agency has issued an order (pdf) temporarily granting the General Counsel (GC) full authority over litigation matters that would otherwise require Board authorization and the ability to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act (LMRA). Currently, the Board is comprised of Chairman Mark Gaston Pearce and Members Brian Hayes and Craig Becker. Terence F. Flynn’s nomination to fill the vacant Republican seat on the Board is still pending, and Becker’s controversial recess appointment is set to expire at the end of 2011. While President Obama re-nominated Becker to serve a full term, it is virtually assured that the Senate will not confirm him. Procedural maneuvers may prevent the President from making recess appointments, leaving just two sitting members in 2012. Continue reading this entry at Littler's Washington DC Employment Law Update.
The Fifth Circuit Court of Appeals recently ruled in an unpublished opinion that an investment manager and a Hawaiian resort owned and operated by a subsidiary of the investment manager were a “single employer” under the National Labor Relations Act and were jointly and severally liable for unfair labor practices stemming from their failure to allow union officials access to hotel workers and prohibiting the union from collecting dues at the resort. Oaktree Capital Mgmt. LP v. NLRB, 5th Cir., No. 10-60749, unpublished opinion 9/26/11.
The union included Oaktree Capital Management as a respondent in its charge. Oaktree was an investment partnership and an indirect owner (through another subsidiary) of a property management company (“TBR”) that leased the resort and contracted with another company, to operate the resort. TBR and the resort operator conceded that they jointly employed resort workers, and thus would be responsible for any unfair labor practices. Oaktree, however, contended vigorously that as an “investment manager,” its only role was to advise its investors, who ultimately owned but did not run the resort. The NLRB and Fifth Circuit disagreed.
The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.
The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule (pdf) adopting regulations that implement Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) Among other requirements, this E.O. mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor 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). Covered contractors are also required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000. This notification rule should not be confused with the National Labor Relations Board’s final rule – Notification of Employee Rights under the National Labor Relations Act – that requires private sector employers subject to the NLRA to post a notice informing employees of their rights under the NLRA. Continue reading this entry at Littler's Washington DC Employment Law Update.
On Wednesday, the House Committee on Education and the Workforce voted 23-16 along party lines to send the Workforce Democracy and Fairness Act (H.R. 3094) (pdf) to the House floor. The vote followed a lengthy markup session of the legislation that would, among other changes, effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the National Labor Relations Board from pursuing its proposed changes to representation election procedures. According to the Committee’s media advisory, this bill “restores successful labor practices and reaffirms protections workers and employers have received for decades” and “ensures employers have access to a fair election hearing and employees are able to make a fully informed decision about union representation.” Earlier this month, the Committee held a more formal hearing with invited panelists to debate the bill’s merits. Continue reading this entry at Littler’s Washington DC Employment Law Update.
Bill Targets NLRB Decision in Specialty Healthcare, Proposed Rule Changing Representation Election Procedures
Legislation introduced by House Committee on Education and the Workforce Chairman John Kline (R-MN) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the Board from pursuing its proposed changes to representation election procedures. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) seeks to return to the long-standing approach in assessing which employees belong in a proposed bargaining unit, and would establish a timeline and process for holding a hearing regarding any pre-election disputes and deciding the appropriate bargaining unit. Continue reading this entry at Littler's Washington DC Employment Law Update.
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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Labor Department to Consider Comments Submitted on Proposed Rulemaking to Narrow Advice Exemption Under LMRDA
The comment period closed on September 21, 2011 regarding the proposed rulemaking to narrow the advice exemption from persuader activity reporting under section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The notice of rulemaking published June 21, 2011, by the U.S. Department of Labor, proposes to eliminate the current interpretative rules in place since 1962 as developed by the DOL during the Kennedy Administration. Approximately 6000 comments were submitted.
Littler Mendelson filed comments opposing the proposed changes in a letter (pdf) submitted by Marko Mrkonich, Managing Director, on behalf of the Firm. The key points were as follows: (1) there was no reliable showing for the need to change or for assuming the current rules could not fix any perceived problem; (2) the proposed rules would conflict with the statute and Congressional intent, and thus exceed the DOL’s authority; (3) the changes would interfere with protected employer speech rights and access to legal counsel, and threaten attorney-client privilege and confidential information, even assuming the DOL had authority to make these changes; and (4) the true actual costs entailed by the proposed rules have not been taken into account as required.
The American Bar Association (pdf) and the U.S. Chamber of Commerce (pdf) also submitted comments opposing the proposed rules. The ABA comments were given to defend “the confidential client-lawyer relationship.” The ABA supports the current interpretation of the advice exemption and “opposes the Proposed Rule to the extent it would apply to lawyers representing employer clients.” The U.S. Chamber’s comments include an analysis of the costs imposed by the proposed rules, and estimate “that the initial year familiarization costs associated with the proposed rule will be between $549.6 million and $1.1 billion for potential Form 10 filers [employers] and between $74.6 million and $298.3 million for potential Form 20 filers [consultants].”
The DOL will now consider all comments as part of the rulemaking process. All comments are accessible here.
Jeff Kauffman is Of Counsel in Littler Mendelson's Chicago office. If you would like further information, please contact your Littler attorney at 1.888.Littler, firstname.lastname@example.org, or Mr. Kauffman at email@example.com.
During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight. Continue reading this entry at Littler's Washington DC Employment Law Update.
The same week the House passed legislation limiting the National Labor Relations Board’s enforcement authority, Rep. Trey Gowdy (R-SC) introduced a bill that would eliminate the Board entirely. The National Labor Relations Reorganization Act of 2011 (H.R. 2926) would disband the NLRB and transfer its enforcement authority to the Department of Justice (DOJ) and its oversight of representation elections to the Department of Labor’s Office of Labor-Management Standards (OLMS). Continue reading this entry at Littler's Washington DC Employment Law Update.
As expected, the House of Representatives voted 238-186 in favor of a bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), would amend Section 10(c) of the National Labor Relations Act by adding the following provision:
Provided further, That the Board shall have no power to order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment, to rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or persons who shall be engaged in production or other business operations, or to require any employer to make an initial or additional investment at a particular plant, facility, or location.
If enacted, the provisions of this bill would apply to any pending complaint before the Board.
While this measure has sufficient support in the House, it is unlikely to gain traction in the Senate, where Democrats maintain a slim majority. Nonetheless, Sen. Lindsey Graham (R-SC) introduced a companion bill (S. 1523) in that chamber last week, although it is not expected to advance.
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The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act. This final rule, issued on August 25, 2011 and effective November 14, 2011, mandates that 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. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The agency has also posted to its website a list of Frequently Asked Questions regarding the notification requirement.
Meanwhile, the rule itself is facing both legislative and legal challenges. Two bills – the Employee Workplace Freedom Act (H.R. 2833) and the Employer Free Choice Act (H.R. 2854) – were introduced in the House of Representatives earlier this month. Both of these measures would rescind the posting rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.
In addition, last week the National Association of Manufacturers (NAM) filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule, claiming the Board exceeded its authority in issuing it. In a press release, NAM President and CEO Jay Timmons said: “This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have.”
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A week after the National Labor Relations Board issued its final rule requiring all private sector employers subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal it. The Employee Workplace Freedom Act (H.R. 2833) would rescind this rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA. Continue reading this entry at Littler's Washington DC Employment Law Update.
In a recent decision, the Board re-emphasized its commitment to proscribing employers’ efforts to discover the otherwise unknown identities of employees engaged in union activities. In Dilling Mechanical Contractors (357 NLRB No. 56), the Board affirmed an ALJ decision from over 8 years earlier and found that the employer violated Section 8(a)(1) of the NLRA. Specifically, the Board determined that the company’s discovery requests – which were made in the course of court-filed litigation – seeking the names of its employees who had joined the union, were unlawful.
The core facts involved the lead organizer of Local 166 of the Plumbers and Steamfitters Union. The union organizer removed several trash bags from the company’s dumpster in an effort to procure information for the union about how to contact the company’s employees to support its organizing efforts. As a result of this behavior, the employer filed a court action in Indiana state court alleging, among other things, criminal acts of theft, receiving stolen property, and acts of burglary. The trial court granted the company’s motion for summary judgment and ordered a separate damages hearing. As part of this separate damages hearing the employer sought the identity of “each and every Union member within Dilling” and “each and every documents [sic] which identifies any and all union members within Dilling.” The trial court granted the union’s request for a protective order precluding the disclosure of the employee names. As an aside, for any employer considering a theft-of-trash action against employees, it should be noted that, on appeal, the Indiana Court of Appeals reversed the trial court’s summary judgment decision, holding that the company had abandoned the trash at issue.
On August 25, 2011, the National Labor Relations Board issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (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. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The rule was published in the Federal Register on August 30, 2011 and will be effective 75 days later, on November 14, 2011. For more information on this rule and employer requirements, continue reading 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.
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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.
The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.
While the report does not provide any hard and fast rules for employers, taken as a whole, the various decisions appear to establish the following guidelines:
In California Grocers Association v. City of Los Angeles, the California Supreme Court upheld a Los Angeles Ordinance that guarantees grocery workers jobs for 90 days following a sale of the grocery store. In doing so, the California Supreme Court rejected the argument that the ordinance was preempted by the NLRA.
The Grocery Worker Retention Ordinance imposes several restrictions on the purchaser of a grocery store larger than 15,000 square feet. First, the purchaser is required to continue the employment of all non-managerial employees who have been employed for at least six months, for a period of 90 days. During that 90-day period, employees may only be discharged for cause. At the end of the 90-day period, the purchaser must prepare a written evaluation of each employee’s performance. Second, while there is no requirement to continue to offer employment, the purchaser must “consider” doing so.
Likely in response to the National Labor Relations Board’s controversial proposed rule that would provide for expedited representation election procedures, Sen. Jim DeMint (R-SC) introduced legislation this week that would establish longer timeframes and due process requirements for the election process. Specifically, the Fair Representation in Elections Act of 2011 (S. 1425) would add the following provision to Section 9(b) of the National Labor Relations Act:
No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.
In addition, the measure would:
A trio of advice memoranda issued by the National Labor Relations Board’s Office of the General Counsel has offered employers a glimpse of what showing must be made to render an employee’s social media use protected by the National Labor Relation Act. The Acting General Counsel’s recent trend targeting employers’ disciplinary actions based on employees’ inappropriate use of Facebook, Twitter, and other forms of social media, has left employers on unsteady ground.
In each of the three cases discussed in the advice memoranda released this week, the Division of Advice’s Associate General Counsel, Barry Kearney, recommends dismissal of the claims that the employers violated the NLRA by unlawfully terminating or reprimanding employees based on their inappropriate Facebook activity, as there existed insufficient evidence that the employees were engaged in concerted activity.
As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. The most vehement criticisms of the proposal are discussed below.
A Solution in Search of a Problem
Many testified that the vast majority of elections are held pursuant to a stipulated agreement, and that current procedures do not promote excessive and unnecessary delays. Several speakers claimed that any deviations from this rule should not result in a wholesale change to the entire election process. As Kadela noted during his testimony, the proposed changes would reportedly shorten the time from the filing of a petition to an election from a median of 38 days to between 10 and 21 days. Doing so dramatically diminishes the time and opportunity for an employer to educate employees on its position before an election.
By Fred Miner
The National Labor Relations Board's recent expansive view of employee rights is not news. What is news is the current Board majority's willingness to hold employers liable for conduct that, on its face, does not infringe any rights protected by federal labor law. Some recent cases have raised the question whether an employer's lawful conduct can nevertheless establish that an unfair labor practice has occurred.
In one such case, the U.S. Court of Appeals for the D.C. Circuit recently answered "no." In Jackson Hospital Corp. v. NLRB, (pdf) a hospital indefinitely suspended a nurse because of her refusal to participate in a meeting with her supervisors without the presence of a union representative. The Board found that the nurse had no legal right to a union representative at the meeting. To the contrary, because it was being held solely to present discipline that her supervisor already decided to impose, the right to request union representation under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) did not apply. Continue reading this entry at Littler's Healthcare Employment Counsel.
The NLRB is now one step closer to getting its long-awaited opportunity to reverse its 2004 Brown University decision, (pdf) in which it held that graduate student assistants are not statutory employees subject to the National Labor Relations Act. On June 16, 2011, the Acting Regional Director in Region 2 of the NLRB issued a decision dismissing the recent UAW representation petition that sought to represent graduate student assistants at NYU. Although the Region felt constrained to dismiss the petition based on the Brown case, the Region saw the writing on the wall and stated that if the NLRB reconsiders the employment status of graduate students, “a unit including all graduate students would be appropriate.”
On June 30, the UAW filed a request for review with the NLRB - a frontal assault urging the Board to reverse the Brown decision. NYU submitted a more limited conditional request for review – a challenge to the Region’s bargaining unit determinations for now, while leaving a more thorough discussion about Brown to its reply brief.
At least fifteen organizations and universities submitted amicus curiae briefs in the original Brown case. One could expect a similar level of interest when the NLRB reviews this case. There are many questions to be answered. If serving as a teaching assistant is simply a requirement of obtaining a degree, does that mean the graduate student assistant is not an employee? If the teaching assistant is covered as adjunct faculty in another collective bargaining agreement, does that change the equation? If a student receives stipends to conduct research, but the research is primarily in the furtherance of his or her dissertation, rather than for the benefit of the university, is he or she an employee? The Board’s decision in “NYU II” may well provide some answers to its perspective on these issues.
Photo credit: Joshua Hodge Photography
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.”
On Thursday, July 7, 2011, the House Committee on Education and the Workforce held a hearing – Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice – during which the National Labor Relations Board’s proposed changes to pre- and post-representation election case procedures came under fire. Last month, the NLRB issued a proposal that would dramatically change long-standing election procedures. Among other things, the proposed rule would substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. As stated in a committee press release, “taken together, the NLRB’s proposed changes will restrict an employer’s ability to communicate with his or her employees and hinder a worker’s right to make a fully informed decision in a union election.” The Board announced that it would conduct limited public hearings on this issue later this month.
In his opening statement, committee Chairman John Kline (R-MN) claimed that the NLRB was involved with “crafting a solution to a problem that doesn’t exist.” As one witness pointed out, unions win approximately 65% of elections, which are typically held within 38 days. According to statistics provided by Kline, “last year 95 percent of all initial elections were conducted in less than 60 days. In 2009, the median time between notice of a pre-election hearing and the end of the same hearing was just 13 days.” Kline pointed out that Acting General Counsel Lafe Solomon praised this rate as “outstanding” and representative of “excellent case handling performance.” Under the NLRB’s proposal, a union election could occur in a few as 10 days.
Supreme Court to Decide Constitutionality of Public Sector Union's Assessment of Fees on Non-Members to Fund Political Activity
The U.S. Supreme Court has agreed to resolve (pdf) two constitutional challenges stemming from a public sector union’s temporary imposition of increased dues and fees to fund political activity. In Knox v. Service Employees International Union Local 1000, the SEIU imposed a union fee increase after it issued its annual notice – known as a Hudson notice – informing non-members as to what percentage of their dues and fees is allocated to functions associated with union representation and how much is unrelated to the union’s representational function. After receiving the information set forth in the Hudson notice, non-members may opt out of paying amounts associated with the latter category. In Knox, the SEIU imposed the increased fee without issuing a second Hudson notice and charged non-members who objected to the increase in fee 56.35% of the total increase, the percentage set forth in the initial Hudson notice as the amount associated with union representation. In a class action lawsuit brought by nonunion state employees challenging this practice, the Ninth Circuit ultimately decided (pdf) that a second notice was not required. The class appealed, and the Supreme Court agreed to examine the following questions:
May a State, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction? And
May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?
The National Labor Relations Board has announced (pdf) that it will hold one or more public meetings to discuss the controversial proposed changes to the Board’s representation election process. According to the notice to be published in the June 27 edition of the Federal Register, the topics of discussion are limited to issues raised by the proposed rule and suggestions for improving the election process. These meetings are in addition to the solicitation of formal written comments as outlined in the Federal Register.
The first meeting is scheduled to take place from 9 a.m. to 4 p.m. on Monday, July 18, 2011 in the Margaret A. Browning Hearing Room (Room 11000), National Labor Relations Board, 1099 14th Street, NW, Washington, DC 20570. A second meeting might be scheduled the following day if necessary. Those interested in attending or speaking at the meeting must submit a written request by 4 p.m. on Friday, July 1, 2011. Requests may be sent to Mary Meyers, Administrative Assistant to the Chairman, National Labor Relations Board, 1099 14th Street, NW, Suite 11100, Washington, DC 20570, or submitted electronically to: firstname.lastname@example.org. All emails should contain the following in the subject line: “REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08.” All requests must include the following information: (1) attendee’s full name, (2) organizational affiliation (if any), and (3), if they are appearing in a representative capacity, the names of any individuals or organizations on whose behalf they are appearing. Attendees are reminded to bring a photo ID. Individuals interested in speaking at the meeting must also submit a brief outline of their presentation.
Littler Mendelson attorneys plan to be in attendance and will provide an update on the issues discussed.
Photo credit: Rapid Eye Media
Department of Labor Proposes New Reporting Rules to Expand Reach of "Persuader Activity" Regulation and Narrow the Advice Exemption
DOL estimates new interpretative standards will triple the number of LM-10 Employer Reports filed annually and predicts a twelve-fold increase in LM-20 Reports required from firms engaged in “persuader activities” as newly defined.
If the DOL proposals take effect, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements. The ambiguity of the new regulatory standards, coupled with potential criminal sanctions for willful non-reporting, potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns.
On Monday, June 20, 2011, the DOL revealed details about its proposed changes for employer and consultant “persuader activity” reporting under the Labor Management Reporting and Disclosure Act (LMRDA). The DOL proposes to broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the LMRDA.
In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:
Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation.
The process outlined in this proposed rule appears basically to be an administrative end-run around the legislative process that defeated the Employee Free Choice Act (EFCA).
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.
Employers who provide employee health insurance containing prescription drug benefits are paying closer attention to the costs associated with these benefits. In particular, employers are exploring ways to control costs by altering the plan’s drug formulary, the part of the plan that establishes what drugs are covered and sets different cost “tiers” for various brand-name drugs and their generic equivalents. Employers faced with increasing prescription drug costs often ask insurers for less costly alternatives. When the insurance plan applies to a union-represented workforce and is incorporated into a collective bargaining agreement, this can spell trouble.
A recent opinion of the United States Court of Appeals for the D.C. Circuit is a case in point. The employer in Caterpillar Inc. v. NLRB, 2011 U.S. App. LEXIS 11163 (May 31, 2011), provided a collectively bargained prescription drug benefit to its employees under a union contract. Over the years, the details of the plan had been modified, without objection by the union.
Most employers with union bargaining obligations are familiar with the duty to furnish information. Unions submit information requests in a wide variety of settings, from grievance processing and arbitration, to “effects” bargaining over business reorganizations and requests made in connection with contract negotiations. The most common features of these requests are that they are time consuming and frustrating for employers.
On May 17, 2011, NLRB Acting General Counsel Lafe Solomon issued a “Guideline Memorandum” (pdf) to the agency’s Regional Offices concerning the duty to provide information in connection with bargaining. The twelve-page memorandum provides both an overview of general principles and cases applicable to “information request” cases and a glimpse into probable NLRB investigation and enforcement strategies. Of particular interest to employers will be the section discussing the duty to furnish specific information in response to claims made at the bargaining table.
In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process.
Just last year the Board handed down a stinging decision to unions in Machinists Local Lodge 2777, 355 NLRB No. 174 (2010), wherein it found a rule requiring Beck objectors to renew their objections annually violated the duty of fair representation, because of the burden on objectors and insufficient rationale for the burden provided by the union. Taking another look at the issue, the Board used the same analysis, but this time found the requirement to renew annually is lawful. In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America Local Union # 376 (Colt’s Manufacturing Company, Inc. et al.), 356 NLRB No. 164 (2011), the Board found an annual requirement to renew Beck objections was not burdensome because the potential objectors received at least four notices of the requirement over the course of a year, an additional notice should the objector fail to renew on time, and, in a notable difference from the 2010 Machinists case, were not subject to a fixed window period for objections. Therefore, an objector under the policy in Colt’s Manufacturing would only be required to pay one month’s dues while he or she renewed the objection, which was in stark contrast to the system in Machinists in which an objector who failed to renew a objection during the window period was required to pay full dues for an additional eleven months. Having found the burden of annual renewal was de minimis, the Board in Colt’s Manufacturing did not reach the issue of the union’s justification for the requirement.
In Sheet Metal Workers Local 15 (Brandon Regional Medical Center) (May 26, 2011), the NLRB ruled that a union’s display of a large inflatable rat at the hospital worksite of a secondary employer was lawful. The case dates back to 2006, when Brandon Regional Medical Center filed charges under Section 8(b)(4)(ii)(B) of the NLRA based on the union’s act of staging a “mock funeral” on public property in front of the hospital, with union members carrying a fake casket, dressed in grim reaper costumes, and patrolling back and forth. The union’s activities were aimed at the hospital’s use of contractors with whom the union had disputes. Section 8(b)(4)(ii)(B) makes it an unfair labor practice for a union to “threaten, coerce, or restrain any person engaged in commerce or an industry affective commerce, where...an object thereof is...forcing or requiring any person to cease doing business with any other person.” The touchstone of such secondary violations has been the coercive nature of the behavior at issue. Conduct more akin to picketing or patrolling had been deemed coercive and unlawful, whereas conduct such as handbilling, even if directed toward the same ends, was deemed lawful persuasive – as opposed to coercive – behavior within the meaning of that section. Because the Board initially decided the mock funeral violated Section 8(b)(4)(ii)(B), it found it unnecessary to pass on the hospital’s allegation that the union violated the same provision by its display of a 12 foot wide by 16 foot tall inflatable rat 100 feet from the hospital’s entrance. The rat was identified as the nonunion contractor of the hospital, and the union distributed leaflets attacking the contractor as a “rat.”
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.”
Continuing its efforts to shape the law in the area of social media, the National Labor Relations Board has filed a complaint against a nonprofit organization for terminating five employees based on comments posted on Facebook. This complaint is the latest in a string of recent Board actions taken against employers that target their employees’ social media use.
According to a press release on this complaint, an employee with the social services nonprofit mentioned on her Facebook page a coworker’s claim that other employees were not doing enough to help their organization’s clients. Other employees chimed in to defend their job performance and “criticized working conditions, including work load and staffing issues.” Claiming that the posts amounted to harassment against the original employee mentioned in the first posting, the employer fired the five employees who participated in the Facebook thread.
The NLRB alleges that these back-and-forth Facebook postings constituted protected concerted activity “because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.” A hearing on this complaint is scheduled for June 22, 2011.
This complaint, and the NLRB’s willingness to publicize this case and others involving social media at the complaint stage of the proceedings, demonstrates that the agency is actively seeking to shape the law governing social media and its role in the workplace.
Photo credit: Warchi
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.
NLRB Acting General Counsel Lafe Solomon has announced his intent to file lawsuits in Arizona and South Dakota to nullify those states’ constitutional amendments that preserve secret ballot elections. According to Solomon, the state measures are preempted by the National Labor Relations Act (NLRA) and the U.S. Constitution’s Supremacy Clause, and are therefore invalid.
The NLRB’s dispute over the constitutional measures began in November of 2010, when four states – Arizona, South Dakota, Utah and South Carolina – approved constitutional amendments containing language upholding the “fundamental” right to the secret ballot. These efforts were widely viewed as preemptive strikes against the possible reintroduction of the beleaguered Employee Free Choice Act (EFCA) and other efforts to bypass secret ballot elections. In response to these constitutional amendments, Acting General Counsel Solomon informed the attorneys general of those states that it was the Board’s position that the amendments were unconstitutional and that any attempt to enforce or enact those provisions would result in litigation.
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:
In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the National Labor Relations Board held that the existence of three unenforced but overbroad rules in the employer’s handbook required the setting aside of election results in which employees had voted to decertify their union. This decision makes it easier for unions to argue that overbroad handbook policies affected election results. Of equal importance, the decision casts doubt on the effectiveness of disclaimer language in which an employer advises employees that “they have rights under the National Labor Relations Act which supersede any possible interpretation of the rules in the handbook.”
The Board found that the employer maintained three overly broad policies in its employee handbook — a “no solicitation or distribution” policy, a “loitering” prohibition, and a “grooming” policy banning the wearing of buttons — and that each policy constituted objectionable conduct that reasonably tended to interfere with employees’ Section 7 rights. This decision is particularly troublesome for employers given the extent of the employer’s efforts in this case to avoid an inference that its handbook rules interfered with the free exercise of employees’ Section 7 rights. The record shows that the handbook rules had been in place for two years without prior objections from the union; the handbook was not distributed or emphasized during the critical election period; the rules were not enforced against any protected activity; and when issues of potential ambiguity arose, the employer even issued a memorandum clarifying its intent, amending two of its policies and eliminating the third policy entirely.
On Friday the House of Representatives approved by a 223-196 margin the Federal Aviation Administration (FAA) Reauthorization and Reform Act of 2011 (H.R. 658) without adopting a number of controversial union-related amendments to the measure. As expected, the chamber narrowly rejected by a vote of 206-220 a bipartisan amendment (pdf) offered by Reps. Steven LaTourette (R-OH) and Jerry Costello (D-IL) that would have stricken from the bill a provision that repeals the contentious new National Mediation Board (NMB) election rule. Continue reading this entry at Littler's Washington DC Employment Law Update.
The collective bargaining agreement between the National Football League Players Association (NFLPA) and the NFL owners had been briefly extended to 11:59 pm on Friday, March 11 while the parties engaged in negotiations with the assistance of the Federal Mediation and Conciliation Service in Washington, DC. Much to the chagrin of NFL fans everywhere, the players and owners could not reach agreement. While certainly not a substitute for NFL action, the legal maneuvering by the NFLPA will give traditional labor law followers something to focus on other than the prospect of no fantasy football come September.
NFL owners had made it clear for months that they intended to lock out the players if a new CBA was not reached. In an effort to thwart the lockout, the NFLPA disclaimed interest in continuing to represent the players for purposes of collective bargaining. (While the NFLPA’s move has been widely reported as a “decertification,” it is technically a disclaimer of interest.) The players took this action as a predicate to their next legal maneuver – the filing of an anti-trust action in federal court in Minnesota. The players’ theory is that because they are no longer represented by a union, the NFL owners cannot act in concert in dealing with the players. By acting in concert, the players argue, the NFL owners are acting as an illegal trust – a modern day Standard Oil – to control costs and maximize profits. The players bringing the lawsuit, including quarterbacks Tom Brady, Peyton Manning, and Drew Brees, are seeking an injunction prohibiting the lockout and requiring the owners to resume all league business (off-season workouts, free agent signings, etc.)
The NLRB’s Office of General Counsel issued memorandums last week addressing backpay award mitigation in ULP cases involving unlawful terminations and procedures for calculating backpay that include daily compounded interest, search-for-work and interim work-related expenses, and reimbursement for excesses taxes owed, among other factors. According to an NLRB news release, these policy changes “are part of an ongoing initiative to ensure that unfair labor practices are more fairly and effectively remedied.”
In the Guideline Memorandum Regarding Backpay Mitigation, (pdf) the NLRB Acting General Counsel (GC) Lafe Solomon asks the Board to overturn two recent decisions regarding backpay mitigation law and instructs Regions to consider an individual’s eligibility for unemployment compensation as evidence that he or she has sufficiently searched for work for backpay mitigation purposes. The two cases at issue – Grosvenor Resort and St. George Warehouse – were decided during the Bush Administration and address the mitigation of backpay awards for individuals deemed unlawfully fired in violation of the NLRA. Generally, as established by the Supreme Court in Phelps Dodge Corp. v. NLRB, the purpose of backpay awards in NLRB cases is to remedy “only actual losses.” Backpay deductions should be made “not only for actual earnings,” but also for “willfully incurred” losses. As a result, a failure to mitigate earnings losses can reduce an individual’s backpay award. Applying this concept, the NLRB in Grosvenor Resort imposed a two-week deadline for those discriminated against to begin their job search. According to the GC, this rule is “inconsistent with mainstream mitigation doctrine and conflicts with the traditional ‘totality of the circumstances’ approach to mitigation.”
Rep. Phil Roe (R-TN) has reintroduced the Secret Ballot Protection Act (SBPA) (H.R. 972) in the House of Representatives, legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. In January, Sen. Jim DeMint (R-SC) introduced a companion bill in the Senate. Both bills would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.
According to a press release issued by Rep. Roe’s office:
Since unions have not been able to get card check legislation passed in Congress, many are concerned that the National Labor Relations Board (NLRB) will attempt to bypass the will of Congress. Already, the NLRB is looking to overturn established workers’ rights to a secret ballot. Passage of the SBPA will prevent card-check from happening and alleviate concerns.
According to Rep. John Kline (R-MN), Chairman of the House Committee on Education and the Workforce, “The secret ballot is a fundamental right that must be preserved in the workplace,” adding “It helps prevent intimidation and coercion, and it is the best way to ensure workers can freely decide whether or not to be represented by a union. No government official - elected or unelected - should weaken this important protection for American workers.”
The bill has been referred to the House Committee on Education and the Workforce.
Photo credit: ericsphotography
The Board recently expanded its protections for union bannering by concluding that a union display of stationary banners was not a violation of the NLRA’s prohibition against secondary boycotts even where the “primary” and “secondary” employers shared a common job site. The union in Southwest Regional Council of Carpenters (New Star General Contractors) (pdf) placed a large banner at the secondary employer’s worksite to publicize the union’s dispute with the primary employer. The union’s goal was to pressure the secondary employer by publicly “shaming” it for doing business with the primary employer during an ongoing union dispute. In this case, the Board ruled that the union’s bannering at a common worksite (a “common situs”) was not an unfair labor practice and did not “threaten, coerce or restrain” the secondary employer’s workers.
The Board’s recent decision is significant because it permitted a union to publicize its dispute with the primary employer at a “common situs” shared job site where several other companies were also working. In reaching its decision, the Board majority (Chairman Liebman and Members Becker and Pearce) cited its recent 2010 decisions, finding that a union’s stationary banners near a secondary employer’s jobsite did not amount to illegal picketing of the secondary employer because it did not “induce or encourage” employees to stop working and did not otherwise signal to employees to engage in a work stoppage. Member Hayes dissented, restating his position from the previous cases that the stationary bannering displays were unlawful as coercive conduct. Member Hayes went further in New Star General Contractors, viewing the union’s banner both as unlawful picketing and as intending to communicate a message for the secondary employer’s workers to engage in a work stoppage at the common worksite.
The significance of this decision likely will be seen on a wider scale where unions engage in continued bannering efforts directed at neutral secondary employers where the primary employer’s workers are on the “common situs” shared job site. The Board’s reasoning permits unions to publicize disputes with primary employers without well-defined limitations requiring unions to avoid disruption or unlawful appeals to the workers of secondary employers. The Board has now established a pattern of decisions condoning union tactics of placing banners at any entrance to a common worksite, regardless of where the primary employer’s workers enter and exit the jobsite. It is unlikely that the Board’s current view of the union bannering strategy will be limited unless reversed by a federal appellate court.
Despite the Board’s current composition and recent slant, it remains advisable for employers to consider continued use of a reserved gate system when facing union bannering efforts. The established practice of reserved gates for primary employers facing unions publicizing labor disputes permits separation of secondary employers’ workers at the “common situs” job site and may help minimize the opportunities for unlawful work stoppages or slowdowns.
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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 NLRB’s February 11 decision in O.G.S. Technologies, Inc., 356 NLRB No. 92 (2011), seemingly sets forth a broad requirement that employers bargain over subcontracting decisions, even where new technologies and decisions about major capital investments are involved. If followed in future cases, the decision will result in a substantial narrowing of the scope of the “core entrepreneurial decisions” that are excluded from an employer’s duty to bargain under the U.S. Supreme Court’s decision in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
In a memorandum (pdf) sent to all NLRB regional offices, Acting General Counsel Lafe Solomon not only encourages the use of additional remedies in certain cases involving first-contract bargaining, but permits these offices to bypass the Division of Advice in doing so. Specifically, the memorandum directs regional officers to use their discretion in seeking notice-reading, certification-year-extension, and bargaining-schedule remedies in specific instances outlined in the memorandum involving evidence of unfair labor practices. In addition, the memo encourages regions to seek reimbursement of bargaining and/or litigation expenses, but directs them to first submit these cases to the Division of Advice in order to “assure consistent analysis and application” of these remedies, since the agency claims it has not had much experience involving such remedies for initial contract bargaining cases.
According to the memorandum, regions are authorized to seek the remedy of notice reading, which requires a management official or NLRB agent to read the remedial notice to assembled employees, without submitting the case to Advice when “the employer’s unlawful contact at or away from the table had the effect of undermining union support among employees.” Such instances include:
On January 31, 2011, the National Labor Relations Board adopted a finding that Fresh & Easy Neighborhood Market violated the NLRA by maintaining an overbroad no-solicitation rule, interrogating employees, and creating an impression of surveillance. The Board also dismissed two claims that employees were unlawfully discharged for engaging in protected activity. Fresh & Easy Market operates convenience stores in Nevada, Arizona and California. The case involved one of the company’s convenience stores in Las Vegas, Nevada, which had been targeted for organizing by the United Food and Commercial Workers (UFCW) during 2009.
As part of the UFCW’s campaign, union organizers made unannounced visits to the homes of Fresh & Easy Market’s Las Vegas employees, which prompted several employee complaints. Managers informed the employees that they could send written complaints to the local UFCW office and to the company’s legal department, and several employees chose to do so. In following up on reports of unwelcome and confrontational home visits by the UFCW’s organizers, the Las Vegas store manager asked two employees whether they had sent complaint letters or had “spoken to the Union.” The NLRB General Counsel challenged this single conversation as unlawful interrogation that gave the employees the impression that their actions were under surveillance.
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 House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.”
One witness at the hearing criticized (pdf) the role that organized labor has been playing in recent years, claiming that the bargaining model of the National Labor Relations Act, where each side’s leverage stems from economic damage it may inflict on the other, “places unions and companies in a relay race, and all too often in the United States, the union’s incentive is to use the baton to injure or maim the employer, instead of running the race against international competitors.”
The NLRB’s unfair labor practices charge against ambulance service provider AMR was a shot across the bow for employers. The complaint was the Board’s response to AMR’s discharge of an employee who called her supervisor a mental patient in a “friends-only” Facebook post in violation of AMR’s social media policy. However, the Region that brought the complaint also contended that any social networking policy that prohibited disparagement was per se unlawful unless it carved out rights under the National Labor Relations Act (NLRA). That element of the case raised broad concerns for employers throughout the U.S. Continue reading this entry at Littler's Workplace Privacy Counsel.
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NLRB Holds off on Bringing Suit Against States with Secret Ballot Protection Constitutional Amendments
Less than a month after NLRB acting General Counsel Lafe Solomon threatened to sue four states that recently adopted constitutional amendments protecting secret ballot elections, the agency appears to have softened its stance. In a letter (pdf) sent to the attorney generals of South Carolina, Arizona, South Dakota and Utah, Solomon praises them for their “prompt reply” and “commendable desire to resolve this matter without unnecessary expenditure of taxpayer money.” Solomon had claimed that the state amendments were in violation of the National Labor Relations Act and were thus preempted. Solomon had warned that if the states did not revoke or refuse to implement the amendments within two weeks, the agency would bring lawsuits to achieve that end.
In their defense, the state attorney generals informed Solomon that they disagreed with his argument that the amendments were unconstitutional, and were therefore willing to “vigorously defend any legal attack upon them.” The attorney generals claimed that the amendments at issue “support the current federal law that guarantees an election with secret ballots if the voluntary recognition option is not chosen.”
Taking this argument into consideration, Solomon responded:
As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation. My staff will shortly be in contact with the staff members you have designated to explore this issue further.
While this back-and-forth was occurring, the Senate reintroduced a bill last week that would similarly preserve secret ballot union elections. That measure – the Secret Ballot Protection Act (SBPA) (S. 217)) – has been referred to committee.
Two important statutes that permit labor unions to trespass on the private property of California employers have been found unconstitutional for the second time by a state appellate court.
In Ralphs Grocery Company v. UFCW Local 8 (1/27/11), (pdf) the Fifth District Court of Appeal held that the statutes are invalid as content discrimination under the free speech provisions of the California Constitution because they favor union speech (typically in the form of picketing or handbilling) over similar conduct by other groups. The case involved picketing by the UFCW on the private property of a grocery store in Fresno, California.
One of the statutes is the Moscone Act (Code of Civil Procedure Section 527.3), which the state Supreme Court construed decades ago as permitting union handbilling on the private sidewalk of a retail store. The second is an anti-injunction statute (Labor Code Section 1138.1), which establishes numerous difficult requirements for obtaining an injunction in a labor dispute.
Last year, the Third District Court of Appeal reached the same result in a case involving the identical parties at a store located in Sacramento. Ralphs Grocery Company v. UFCW Local 8, 186 Cal.App.4th 1078 (2010). The California Supreme Court has granted review of that decision, and it is anticipated that review will also be granted in the Fresno case.
Littler Mendelson filed amicus briefs on behalf of several trade associations in both of the Ralphs cases, and we are currently filing a similar brief in the case pending before the Supreme Court.
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On January 27, Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (SBPA) (S. 217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Essentially, this measure would make it an unfair labor practice under the NLRA for an employer to recognize a union that has not been selected via secret ballot. In addition, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it. DeMint had introduced this bill in February 2009 as a pre-emptive move against the anticipated introduction of the Employee Free Choice Act (EFCA). In a statement, DeMint said: “Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election,” adding, “Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder.”
The introduction of the SBPA coincides with a letter four state attorney generals sent to the NLRB in defense of their state constitutional amendments that similarly seek to preserve the right to secret ballot elections. Last month, the NLRB’s Acting General Counsel put the Arizona, South Carolina, South Dakota, and Utah attorney generals on notice that it was the agency’s position that the amendments were in violation of the NLRA, and that the Board would file lawsuits against each state if the amendments were not rescinded. In their joint January 27, 2011 letter, the attorney generals reject the NLRB’s demand to “stipulate to the unconstitutionality” of the amendments, and affirm that they “will vigorously defend any legal attack upon them.” The attorney generals explain that the NLRB premises its proposed lawsuit:
on the erroneous conclusion that our constitutional provisions require elections when federal law does not. We do not believe that is true. Our amendments support the current federal law that guarantees an election with secret ballots if the voluntary recognition option is not chosen. . . . Accordingly, your letter fails to establish that our State constitutional protections have disrupted the federal regulatory scheme in any way. Both the State amendments and the NLRA support secret ballot elections in selecting union representatives.
The letter concludes by urging the NLRB to reconsider its decision.
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Although it is considered a long-shot attempt, President Obama is trying once again to seat controversial nominee Craig Becker to the National Labor Relations Board for a full term. First nominated in July 2009 and seated via recess appointment in April 2010, Becker, who served as Associate General Counsel to both the SEIU and the AFL-CIO, has not tread an easy path to the NLRB and faces certain opposition in light of Obama’s latest move.
Almost immediately after Obama announced his intent to nominate Becker in April 2009, many in the business community voiced concern about his divisive views regarding an employer’s role during a representation election campaign, as well as his perceived willingness to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act. Likely due to this outcry, in the Fall of 2009, Sen. John McCain (R-AZ) put a hold on Becker’s nomination. Before the 2009 holiday recess, the Senate returned his nomination to the White House for reconsideration.
Despite this concern, the President re-submitted Becker’s nomination to the Senate in January 2010. Following a Senate hearing on his nomination, during which Becker tried to allay concerns about his ability to be impartial, the Senate failed to advance his nomination by a vote of 52-33 in February 2010. His supporters needed at least 60 votes to limit debate on his selection and allow a confirmation vote to occur. Despite the decisive outcome in the Senate vote, Obama used his recess appointment power to seat Becker on the Board in March 2010.
Given the current political composition of the Senate, it is unlikely that lawmakers will have a change of heart and agree to confirm Becker for a full term. If not confirmed, Becker’s term will end on December 31 of this year.
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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The General Counsel’s office of the NLRB has issued a memorandum – Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) Cases – that urges the Board to adopt a new approach to its arbitration deferral policy. Under the current deferral policy, as established by Collyer Insulated Wire, 192 NLRB 83 (1971) and United Technologies Corp., 268 NLRB 557 (1984), the agency defers making a final determination on certain unfair labor practice (ULP) charges when a grievance involving the same issue(s) can be processed under the grievance/arbitration provisions of the parties’ collective bargaining agreement. The purpose of doing so, according to the Board, is to encourage collectively-bargained dispute resolution.
The GC’s memo, however, claims that the current deferral process does not sufficiently safeguard employees’ Section 7 rights under the National Labor Relations Act. The memo explains that Supreme Court cases dealing with non-labor employment rights have required a showing that the arbitrator was explicitly authorized to decide the underlying statutory issue and applied the appropriate statutory standard, before giving effect to the award. The GC claims that in contrast, the Board’s standards for accepting an arbitrator’s decision as a final resolution of an NLRA dispute are “overly deferential.” In Olin Corp., 268 NLRB 573 (1984), the Board ruled that an arbitration award is to be considered a final resolution of the matter so long as the contract and statutory issues were “factually parallel” and the arbitrator was “presented generally with the facts relevant to resolving the unfair labor practice.”
Union membership in the United States continued to decline in 2010, according to a recently-released report issued by the Bureau of Labor Statistics (BLS). The data contained in the report was obtained from the Current Population Survey (CPS), which conducts monthly assessments of basic information on the labor force, employment, and unemployment. The annual report on union membership finds that the number of wage and salary workers who belong to a union declined by 612,000 to 14.7 million in 2010 (7.1 million workers in the private sector; 7.6 million in the public sector). An additional 1.6 million workers (783,000 of whom are government employees) held jobs that were covered by a union contract, but reported no union affiliation. Overall, the union membership rate fell to 11.9 percent, down from 12.3 percent the prior year. In contrast, the union membership rate in 1983 – the first year comparable data was available – was 20.1 percent, representing 17.7 million workers. Other notable findings include the following:
- A substantially higher percentage of public sector workers, 36.2 percent, were unionized, compared to 6.9 percent for the private sector.
- Private sector industries with the highest union participation rates include transportation and utilities (21.8 percent), telecommunications (15.8 percent), and construction (13.1 percent).
- Private sector industries with the lowest union participation rates include agriculture and related industries (1.6 percent) and financial activities (2.0 percent).
- Broken down by occupational groups, education, training, and library occupations (37.1 percent) and protective service occupations (34.1 percent) had the highest unionization rates; sales and related occupations (3.2 percent) and farming, fishing, and forestry occupations (3.4 percent) had the lowest unionization rates.
- New York had the highest union membership rate (24.2 percent), while North Carolina had the lowest rate (3.2 percent). About half of the 14.7 million union members in the U.S. lived in just six states (California, 2.4 million; New York, 2.0 million; Illinois, 0.8 million; Pennsylvania, 0.8 million; Ohio, 0.7 million; and New Jersey, 0.6 million). Overall, union membership rates declined in 2010 in 33 states and the District of Columbia, and rose in 17 states.
- With respect to union member demographics, membership rates tended to be greater among men (12.6 percent) than women (11.1 percent). African American workers had the highest participation rate (13.4 percent), with Asian men having the lowest rate (9.4 percent). Union membership was also highest among workers ages 55-64 (15.7 percent).
A pdf copy of the BLS report can be found here.
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NLRB Advises State Attorney Generals that the NLRA Preempts Constitutional Amendments Preserving Secret Ballot Elections
In response to constitutional amendments recently adopted in four states that contain language upholding the “fundamental” right to the secret ballot, the National Labor Relations Board has advised the attorney generals in Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts such provisions. Each attorney general was also informed (pdf) that if a response to the NLRB’s letter was not issued within the next two weeks, the agency would file lawsuits in federal courts to enjoin enforcement of the amendments.
The state constitutional changes are considered to be preemptive strikes against the (unlikely) enactment of the Employee Free Choice Act (EFCA) and other administrative efforts to bypass secret ballot elections. The NLRB contends in a fact sheet (pdf) that these state constitutional amendments govern the method by which employees choose union representation in conflict with federal labor law, and therefore are preempted by the Supremacy Clause of the U.S. Constitution. Specifically, the NLRB contends that the NLRA permits employees to choose a representative via certification based on a Board-conducted secret ballot election or through voluntary recognition based on other convincing evidence of majority support. The NLRB argues that by eliminating the latter option, the state constitutional amendments conflict with private sector employees’ Section 7 right to representatives of their choosing and are therefore preempted.
The NLRB asks the attorney generals in Arizona and South Carolina, where the amendments have not yet taken effect, to voluntarily take steps to ensure that the amendments are not officially enacted and/or ratified. For South Dakota and Utah – where the respective amendments have been formally adopted – the NLRB asks the state attorney generals to stipulate to their unconstitutionality.
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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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The National Labor Relations Board has issued a notice and invitation to file briefs (pdf) on the issue of whether a charter school is a political subdivision within the meaning of Section 2(2) of the National Labor Relations Act, and therefore exempt from the Board’s jurisdiction. Section 2(2) of the NLRA exempts from coverage government entities or wholly owned government operations. As discussed in the Board’s announcement, (pdf) the Supreme Court case NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971) established a test to determine when entities that are political subdivisions fall under the Section 2(2) exemption. Such entities must either be “(1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.” According to the NLRB, because state charter school laws vary, decisions regarding whether such schools are subject to the NLRA have similarly varied.
In the case at issue, Chicago Mathematics & Science Academy Charter School, Inc. (13-RM-1768), the union sought to represent a charter school’s teachers, social workers and counselors through the Illinois Educational Labor Relations Board instead of the NLRB, arguing that the school constituted a political subdivision of the state. The school, on the other hand, claimed that the NLRB retained jurisdiction. The purpose of the invitation for briefs, therefore, is to solicit public input as to when charter schools should fall under the NLRB’s jurisdiction.
Briefs must be filed electronically on or before March 11, 2011.
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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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President Obama has nominated Terence F. Flynn to be a member of the NLRB. As expected, Obama has also named Lafe E. Solomon to be the agency’s General Counsel (GC). Solomon has been serving as acting GC since former GC Ronald Meisburg stepped down in June eight weeks shy of the end of his term. Since both nominations have been forwarded to the Senate for confirmation, it is expected that the two nominees will be voted on as a package deal.
Flynn currently works as Chief Counsel to the lone Republican NLRB member Brian Hayes, having served in the same capacity for former Republican member Peter Schaumber. Schaumber left the Board in August after his second term expired. Prior to his position at the NLRB, Flynn worked in private practice. If the Senate confirms Flynn, the NLRB will once again be operating with a full five-member Board.
The NLRB has announced (pdf) that it is inviting interested parties to file briefs in a case revisiting an earlier decision that had addressed appropriate bargaining unit composition in long-term care facilities. The issue being appealed before the Board in Specialty Healthcare, 15-RC-8773, is whether a bargaining unit consisting of certified nursing assistants (CNAs) at a nursing home was appropriate, or whether, as the company contends, the unit should incorporate all nonprofessional service and maintenance staff. The Board outlined the factors to consider in determining the appropriate unit in non-acute care facilities in its 1991 decision Park Manor Care Center, 305 NLRB 872. In that case, the Board stated that it would “take a broader approach utilizing not only ‘community of interests’ factors but also background information gathered during rulemaking and prior precedent” in assessing the unit. This “pragmatic” or “empirical” community-of-interest test involves the consideration of information elicited in rulemaking proceedings, as well as Board precedent pertaining to the type of facility involved or the type of unit sought, in addition to traditional community of interest factors. The current Board, however, claims that the long-term care industry has “changed dramatically” since Park Manor was decided, and therefore warrants a fresh look. In reality – and as discussed in a lengthy dissent by Member Brian Hayes – this broad invitation for briefs is not only unnecessary to resolve a simple matter, but constitutes a preliminary step in revising a well-established test for determining bargaining unit composition in all industries.
In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign. This new Board initiative is consistent with the Board’s efforts to administratively implement substantive portions of EFCA previously discussed in this blog.
Specifically, in such “nip-in-the-bud” cases, local Board regions are directed to seek a notice-reading remedy when an employee discharge is involved, and are encouraged to do so when an employer is believed to have committed any serious Section 8(a)(1) violation. If the ULP is believed to have interfered with communications between employees, or between employees and a union, regions are also directed to seek union access to an employer’s bulletin boards as well as employee names and addresses. This initiative builds upon a program introduced in September designed to streamline and expedite the process of seeking section 10(j) preliminary injunctions from federal courts in cases involving employee discharges during organizing drives.
On December 22, 2010, the National Labor Relations Board published a proposed rule (pdf) that would require all private sector employers covered by the National Labor Relations Act to post a notice informing employees of their NLRA rights. This requirement would be imposed on all employers covered by the NLRA even if there is no union in place. The notice would be similar in form and content to the notice (pdf) the Department of Labor recently approved for use by federal contractors. As stated in a fact sheet, (pdf) the purpose of the proposed rule is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” Unlike the rule for federal contractors, this proposed rule would apply to the vast majority of private sector employers and would create significant compliance obligations, along with serious potential non-compliance liability, on most employers.
This proposed rule is consistent with the Obama Administration’s initiative to inform employees of rights, including in this case rights under the NLRA. Moreover, it is further evidence of the Administration’s overt efforts to promote private-sector unionization.
With its December 6 decision in Dana Corp., 356 NLRB No 49, (pdf) the Obama Board has given its approval to broader use of agreements between employers and unions designed to encourage the organization of an employer’s non-represented workforce. The decision represents a step forward in the Obama Board’s agenda for changing existing interpretations and applications of U.S. labor law in ways that labor organizations hope will ensure its continuing relevance and vitality in the twenty-first century. For some, the decision suggests that the Board may be privileging the institutional interests of labor unions over the individual or even collective interests of the employees whom federal labor law was designed to protect.
The UAW represents Dana Corporation’s employees in nine bargaining units covering some, but not all of the company’s facilities. In 2003, Dana and the UAW entered into an agreement wherein Dana committed that it would remain neutral if the union launched an organizing drive at any of the unorganized plants, provide the union with a list of the names and addresses of employees working at the plant upon request, provide union organizers with access to the non-working areas of the plant for the purpose of organizing employees, and recognize the union without an election if the union presented authorization cards signed by a majority of the employees at the plant, as verified by a neutral fact-finder. This type of sweeping neutrality and card-check agreement, though uncommon, has generally survived legal challenges.
Federal Agencies to Issue Interim Rule Amending FAR to Implement Employee Notification Rights Under Executive Order 13496
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will issue an interim rule (pdf) that adopts the Department of Labor’s final rule implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) The DOL issued its final rule on this EO last May. The EO at issue mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor 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), and revokes a Bush-era EO that had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment.
The Councils’ interim rule essentially amends the Federal Acquisition Regulation (FAR) to reflect the DOL’s notification requirements. These changes include a new FAR subpart 22.16 and clause 52.222-40, Notification of Employee Rights Under the National Labor Relations Act. The interim rule also revises FAR clauses at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items, and FAR 52.244-6, Subcontracts for Commercial Items, to include the requirements of the new FAR employee notification clause. These amendments to the FAR represent the formal notice to contracting officers to include the amended FAR clause in all solicitations and contracts, except those contracts that are under the simplified acquisition threshold (currently $150,000), subcontracts of $10,000 or less, or contracts/subcontracts that are for work performed exclusively outside of this country.
For more information on the requirements set forth in the DOL’s final rule, see Littler's ASAP: DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights by David Goldstein and Jay Sumner.
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As expected, the Senate defeated a motion to advance the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991) on Wednesday by a vote of 55 to 43, despite a last-ditch attempt to move the measure before the new Congress takes over in January. The PSEECA, which was reintroduced last week, would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them; establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The failure to muster the 60 votes needed to overcome a filibuster means that this measure has little chance of becoming law in the foreseeable future.
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Sen. Harry Reid (D-NV) this week reintroduced the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991), legislation that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the measure would establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. Continue reading this entry at Littler's Washington DC Employment Law Update.
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For over 60 years, employers have had a federally protected right under the National Labor Relations Act (NLRA) to hold paid, mandatory meetings with employees to discuss various issues related to unions and unionization. These meetings, often referred to by unions as “captive-audience” talks, have historically been used by employers to explain to new hires and other employees the tactics unions use to collect union authorization cards, the legal rights employees have when asked to sign those cards, and the merits of a union-free workplace. Union employers use these meetings to provide updates on the status of collective bargaining, explain the employer’s contract proposals, and inform employees of their rights and responsibilities in the event of a strike.
On May 12, 2010, Wisconsin became the second state in the nation (Oregon was the first earlier this year) to pass a law designed to strip employers of their right to hold “captive-audience” talks with their employees. The Wisconsin Fair Employment Act (WFEA) was amended to prohibit employers from discriminating against employees who refuse to attend “employer-sponsored meetings” or “participate in any communication with the employer or with an agent, representative, or designee of the employer” where the “primary purpose” of the meeting or communication was to express the employer’s “opinion” about an employee’s decision to join or support a union.
A recent decision from the National Labor Relations Board (NLRB) points out yet again the importance of carefully reviewing the scope of no-solicitation polices and conducting thorough investigations of employee misconduct.
In Satellite Services, Inc., 356 NLRB No. 17 (Slip op. October 29, 2010), the NLRB adopted the decision of the Administrative Law Judge (ALJ), who rejected the company’s claim that it had discharged an employee for three violations of company policy, and held that the real reason for discharge was the employee’s union activities.
Case To Watch: NLRB Challenges Employer's Termination of Employee Based on Violation of Social Media Policy
Labor law attorneys at Littler Mendelson have been predicting for months that the National Labor Relations Board, now dominated by Obama appointees, would take aim at employer policies that could be applied to restrict employees’ use of social media for purposes protected by the National Labor Relations Act. In what appears to be the first shot in an approaching battle, the NLRB’s Office of General Counsel issued a press release on November 2, 2010, announcing that the Board’s Hartford Regional Office had filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated the NLRA by terminating an employee for posting negative comments about her supervisor on her Facebook page.
According to the Hartford Region’s complaint, AMR denied the employee’s request for union representation made after her supervisor asked her to prepare an investigative report concerning a customer complaint about her job performance. Later that day, the employee, using her home computer, made negative comments about her supervisor on her Facebook page. Coworkers who visited the page posted comments supportive of the employee and critical of the supervisor.
Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.
According to a recent Wall Street Journal article, on October 7 the AFL-CIO, in conjunction with an affiliate group Working America, will launch a searchable online database of more than 400,000 employers that allegedly have outsourced jobs and/or violated workers’ rights. As stated in the article, the goal of the outsourcing database is to “[s]how voters, particularly union-member households, the local impact of the nation’s trade laws in an effort to get them to cast ballots for union-backed candidates.”
This move is being touted as the labor organization’s latest effort to drum up voter enthusiasm for the mid-term elections. On September 28, AFL-CIO President Richard Trumka spoke out in favor of the Creating American Jobs and Ending Offshoring Act, a bill that would provide employers with tax incentives to maintain jobs in the United States and eliminate tax advantages for outsourcing work. That same day, the Senate defeated the motion to begin debate on the bill, effectively blocking it.
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In a significant defeat for plaintiffs’ class action firms bringing wage and hour class cases against unionized healthcare institutions, a Massachusetts federal judge dismissed a wage and hour class action against Caritas Christi Health Care System on the grounds that the claims were preempted by the Labor Management Relations Act (LMRA). This decision is particularly important as plaintiffs’ class action firms are increasingly filing state law wage and hour class actions, in addition to federal FLSA collective actions, in an effort to take advantage of potentially larger opt-out classes and additional damages. Continue reading this entry on Littler's Healthcare Employment Counsel Blog.
Many have speculated that the National Labor Relations Board may seek to implement through the Board’s processes certain aspects of the Employee Free Choice Act in lieu of legislative action. To wit, in a move that partially implements EFCA’s “enhanced enforcement” provisions, the NLRB Office of the General Counsel (GC) has put into place a program designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns.
Section 10(j) of the National Labor Relations Act (NLRA) allows the Board to seek a federal court injunction to prevent unions and employers from committing unfair labor practices and to maintain the status quo while a matter is pending before the Board. Unions have long complained that this power was underutilized by the Board and that employer termination of union supporters was a primary impediment to unions’ ability to successfully organize. To address this complaint, as drafted, EFCA called for enhanced penalties for violations during an organizing campaign such as the termination of an employee supporting the union’s organizing effort. Now, even without the passage of EFCA, under the new program, in all cases where an employee termination during an organizing campaign is the subject of an unfair labor practice (ULP) charge and the charge is found to have merit, the GC’s office will consider obtaining a court order compelling reinstatement of the employee while the underlying ULP claim is still pending. According to the GC’s letter to NLRB regional directors, the NLRB’s Section 10(j) program is to be considered a “top priority.”
On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.
The NMB’s decision to change its election rule has been highly contentious. Under the NMB’s prior long-standing election approach, the outcome was determined by a majority of employees eligible to vote in representation elections. As a result, employees choosing not to participate are effectively viewed as “no union” votes. The NMB’s new rule, which took effect on July 1 despite an ongoing legal challenge, changes this policy by basing the voting outcome on the majority of those who actually vote, which is closer to the practice in non NMB-governed industries. Sen. Isakson pointed out during the debate on the resolution, however, that unlike similar situations governed by the National Labor Relations Act (NLRA), the NMB does not provide for union decertification.
During a question and answer session held in Fairfax, Virginia on September 13, President Obama acknowledged the political reality that the Employee Free Choice Act’s (EFCA) (H.R. 1409, S. 560) prospect of passage this session “is not real high.” Obama claimed that EFCA, often referred to as the “card check” bill, “is in response to 20, 30 years where it’s become more and more difficult for unions to just get a fair election and have their employers actually negotiate with them” – ignoring substantial evidence to the contrary. The President recognized, however, that “[f]rankly, we don’t have 60 votes in the Senate” to pass it. Given the current political trends leading up to this year’s mid-term Congressional elections, it seems unlikely that this situation will change in the foreseeable future.
While EFCA’s passage appears to be a lost cause for organized labor, those opposed to this bill have expressed concern about its possible advancement during the upcoming lame duck congressional session. Some senators who have opposed the bill in the past could change their minds if they will not be returning in January and therefore feel they have nothing to lose politically. However, the possibility of this occurring seems remote.
President Obama has announced that he plans to nominate Thomas M. Beck (R) to be a member of the National Mediation Board (NMB). The NMB is an independent federal agency tasked with facilitating labor-management relations in the airline and railroad industries. Specifically, the NMB manages the dispute resolution process involving collective bargaining disputes in this transportation sector. If confirmed, Beck is expected to replace fellow Republican Elizabeth Dougherty, whose term expired on June 30. Also serving on the three-member NMB is Chairman Harry Hoglander (D) and Member Linda Puchala (D).
According to the White House’s press release, Beck has served as a member of the Federal Labor Relations Authority (FLRA) since October 16, 2008, and is a past chairman. Prior to the FLRA, Beck worked in a private law practice, and has taught law courses at the George Mason University School of Law. Beck earned his undergraduate and law degrees from the University of Virginia.
The NMB recently came under fire for issuing a final rule (pdf) that changed its long-established representation election procedure. The new rule bases union election voting outcomes on the majority of employees in the rail and air transportation industries who actually vote, instead of counting those who do not vote as “no” votes, as has been the practice for the past 75 years. Despite challenges to this rule, a federal judge in June ordered the election change to proceed as planned, although the Air Transport Association of America (ATA) has filed a notice of appeal.
The Federal Aviation Administration (FAA) has released its much-anticipated proposed regulations (pdf) governing rest rules for commercial airline pilots. Spurred by the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York, these rules impose a number of new requirements on airlines to address flight operation and rest time. The rules are also in response to the recently-enacted Airline Safety and Federal Aviation Administration Extension Act of 2010, which directed the FAA to establish regulations to address pilot fatigue by August 1, 2011. In a statement, FAA Administrator Randy Babbitt said: “I know firsthand that fighting fatigue is a serious issue, and it is the joint responsibility of both the airline and the pilot,” adding, “After years of debate, the aviation community is moving forward to give pilots the tools they need to manage fatigue and fly safely.” Continue reading this entry at Littler’s Washington DC Employment Law Update.
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NLRB Declines to Decide Whether Dues Checkoff Can Be Unilaterally Ended By Employer After Contract Expires in Right-to-Work States
In Hacienda Resort Hotel and Casino, the NLRB found itself in a 2-2 “deadlock” and opted to dismiss, rather than clarify, whether the Hacienda Resort Hotel and Casino lawfully ended the union dues checkoff after the parties’ contract had expired. Dues checkoff is the automatic deduction of union dues from employees’ paychecks. This case has a 15-year history that included two trips to the Ninth Circuit Court of Appeals where the NLRB was twice directed to address the key question of whether union dues checkoff is covered by the Supreme Court’s “unilateral-change” doctrine in NLRB v. Katz, 369 U.S. 736 (1962) and thereby a mandatory subject of collective bargaining. The central issue in Hacienda is whether employers in “right-to-work” states – in which employees cannot be required to join or pay dues or fees to a union, with some exceptions – may unilaterally stop union dues checkoff after a contract expires or whether the decision is a mandatory subject of bargaining. If the NLRB had determined that dues checkoff was a mandatory subject, then employers in right-to-work states could not unilaterally end dues checkoff. But the NLRB’s decision on August 27, 2010 avoided the right-to-work question, simply noting existing precedent, and held that dues checkoff is a permissive subject of bargaining.
The National Labor Relations Board on August 27, 2010, issued its long-awaited decision in a trio of cases involving the use of stationary banners by unions to advertise secondary boycott activity to the public. In a 3-2 decision split along partisan lines, the Board majority (Chairman Liebman and Members Becker and Pearce) concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act ( the “Act”). The decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (2010) has the practical effect of broadening the arsenal of weapons organized labor can bring to bear to force a primary employer in a labor dispute to yield to union demands. As a result, the decision may signal an increase in the frequency of secondary boycott activity and the embroiling of neutral employers in labor disputes not of their own making.
As the NLRB regained its five-member status, it set to task at the back log of cases awaiting it. On August 27, 2010 it decided Independence Residences, Inc., 335 NLRB No. 153 (2010), a 2003 representation case that even Chairman Liebman noted has languished before the Board for “an unconscionably long time.” In 2003, the Union of Needletrades Industrial and Textile Employees (UNITE) began organizing at Independence Residences, Inc., a private nonprofit entity, and filed a representation petition with the Board. A majority of employees voted for the union in the subsequent election, and the employer filed objections seeking to set aside the election results, arguing that a New York state law barring the use of state funds for certain union campaign activities prevented a fair election. The heart of the issues in Independence Residences was whether New York State Labor Law Section 211-a interfered with the employer’s ability to communicate with employees during the election campaign, warranting the setting aside of the election results.
New York Labor Law Section 211-a provides:
no monies appropriated by the state for any purpose shall be used or made available to employers to: (a) train managers, supervisors or other administrative personnel regarding methods to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive; (b) hire or pay attorneys, consultants or other contractors to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive; or (c) hire employees or pay the salary and other compensation of employees whose principal job duties are to encourage or discourage union organization, or to encourage or discourage an employee from participating in a union organizing drive.
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:
After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”
Schaumber was nominated to the Board in 2002 by former President George W. Bush, and served as the agency’s Chair from 2008 until January 20, 2009, when President Obama appointed Wilma Liebman to that position. According to a press release, (pdf) Schaumber intends to take some time off before “returning to work in traditional labor law, government affairs and the legislative arena.”
Remaining on the Board are Chair Wilma Liebman (D) and Members Craig Becker (D), Mark Pearce (D), and Brian Hayes (R). There is no time table for nominating a replacement for Schaumber – which will be a Republican – to maintain the Board’s traditional minority party representation.
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Board Decision Sanctions Employer Communications Explaining Employee Options After Contract Expiration
The National Labor Relations Board (NLRB or “Board”) recently decided that a union violated the National Labor Relations Act (NLRA) by intimating that employees were still obligated to pay union dues and fees after a collective bargaining agreement (CBA) had expired, implicitly affirming the rights of the employer to explain employees’ post-contract options. The controversy in SEIU Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB No. 40 (2010) stemmed from an expired CBA between the Service Employees International Union (SEIU), which represented approximately 1,000 registered nurses, and the hospital employer. After the CBA – which contained a union security clause – terminated, the employer and an anti-union nurses group informed the employees that they were no longer required to pay union dues and fees and that they could resign their union membership and/or revoke their dues checkoff authorizations. In response, the SEIU issued flyers that sought to counter this “misleading and incorrect information.” With respect to dues and fees, the poster informed employees that:
You may have been mislead [sic] into believing that you are not obligated to pay dues and fees during the period of negotiations. This is untrue and retroactivity may occur prior or upon ratification of the contract. Please ask yourselves why all the anti leaders are still paying dues. Could it be they don’t want the possibility of owing more in a lump sum?
DUE [sic] AND FEE [sic] OBLIGATIONS REMAIN INTACT AND MAYBE [sic] COLLECTED PRIOR OR UPON RATIFICATION OF THE CONTRACT. WHEN YOU ARE NOT A MEMBER IN GOOD STANDING, YOU FORFEIT YOUR VOICE, RIGHTS TO PARTICIPATE IN UNION EVENTS AND FORFEIT YOUR VOTING PRIVILEGES. (emphasis in original)
Ending a four-year schism, the Laborers’ International Union of North America (LIUNA) has decided to rejoin the AFL-CIO as of October 1, 2010. LIUNA, with more than half a million members in the construction industry, had withdrawn from the AFL-CIO in 2006 to affiliate with Change to Win, a competing labor movement comprised of the LIUNA, the International Brotherhood of Teamsters (IBT), the Service Employees International Union (SEIU), the United Farm Workers of America (UFW), and the United Food and Commercial Workers International Union (UFCW). The SEIU instigated this mass defection from the AFL-CIO to form Change to Win in 2005, purportedly due to internal disagreements about the direction of the organization. AFL-CIO president Richard Trumka has made it a mission to unify the labor movement. Continue reading this entry at Littler's Washington DC Employment Law Update blog.
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In a rejection of several decades of California law that had permitted unions to picket and demonstrate on the private property of employers, the state Court of Appeal has ruled that this type of favoritism by the state is invalid under the U.S. Constitution. The ruling, issued by a three-judge panel of the appellate court in Ralphs Grocery Company v. United Food & Commercial Workers Union Local 8, directed a trial court to issue an injunction prohibiting the union from picketing in front of the company’s store in Sacramento.
Although the grocery store was located in a retail development that included common areas similar to those in shopping centers, the court concluded that the private property in front of the store was not a “public forum.” Thus, California case law that authorizes members of the public to picket or protest in the common areas of a shopping center was found to be inapplicable.
In addition, the court invalidated two state statutes that have precluded employers from obtaining injunctive relief against union trespassing. These statutes were found to be unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution because they favor speech related to labor disputes over speech related to other matters, based on the content of the speech.
The court also disregarded several California court decisions, issued over a span of half a century, that unions have relied upon to picket and demonstrate on the private property of employers—including decisions of the California Supreme Court and an earlier decision issued by the same appellate court.
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NLRB Ratifies General Counsel's Litigation and 2-Member Board's Administrative and Procedural Authority During 27-Month Period
The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.
Late Thursday, the House of Representatives approved the Supplemental Appropriations Act of 2010 (H.R. 4899) that included an amendment (pdf) incorporating the Public Safety Employer-Employee Cooperation Act (PSEECA), which would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. As explained in a press release issued by Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, the bill that cleared the House:
On Friday, a federal court judge issued an order (pdf) that will effectively permit the National Mediation Board’s (NMB) final rule (pdf) changing its 75-year-old representation election policy to proceed as planned. On May 17, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the NMB from implementing this change to the election process that will make it easier for unions to organize airline and railroad employees. Under the long-established approach, a majority of employees eligible to vote in representation elections determined the outcome of the election. As a result, employees who chose not to participate are effectively viewed as “no union” votes. The NMB’s new rule changes this policy by basing the voting outcome on the majority of those who actually vote, as is closer to the practice in non NMB-governed industries.
U.S. Supreme Court Refuses to Require Arbitration Over Date of Formation of Collective Bargaining Agreement, Remands Federal Claim Against the International Union
On June 24, 2010, the U.S. Supreme Court issued a pro-employer opinion in Granite Rock, Inc. v. International Brotherhood of Teamsters, et al., (pdf) providing valuable guidance on the arbitrability of disputes over the timing of the formation of collective bargaining agreements.
The Court (7-2) held that the question of exactly when the parties formed an agreement to arbitrate certain disputes was not itself subject to resolution through arbitration. The Court also declined to recognize Granite Rock’s cause of action under Section 301 of the Labor Management Relations Act (LMRA) against the International Brotherhood of Teamsters’ (IBT) for tortious interference with a collective bargaining agreement. The Court remanded the case to the lower court to allow Granite Rock to proceed against the International on the theory that the local union was acting as the IBT’s agent when it refused to abide by the no-strike clause of the parties’ collective bargaining agreement.
The National Labor Relations Board’s (NLRB) general counsel (GC) has issued guidance (pdf) to the agency’s regional officers and directors on how to process unfair labor practice (ULP) charges involving employee class action waivers in mandatory arbitration agreements. The GC explained that questions have arisen “regarding the validity of mandatory arbitration agreements that prohibit arbitrators from hearing class action employment claims while at the same time requiring employees to waive their right to file any claims in a court of law, including class action claims.” In essence, the GC concluded that such class action waivers do not per se violate the National Labor Relations Act’s (NLRA) provisions allowing employees to engage in protected, concerted activity, but that certain principles must be followed.
On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:
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.
Potentially invalidating hundreds of National Labor Relations Board (NLRB or “Board”) decisions, the U.S. Supreme Court has held that the National Labor Relations Act (NLRA) requires that the NLRB must operate with at least three members in order to exercise its full authority. In New Process Steel v. NLRB, (pdf) the Court rejected the argument that the NLRA’s delegation and quorum clauses enable the Board to act with only two members, which it had done from January 2008 through March of this year when President Obama used the recess appointment process to add members Craig Becker and Mark Pearce to the two-member panel.
On June 9, 2010, the National Labor Relations Board (NLRB or “Board”) made a move wholly consistent with its anticipated commitment to implementing “significant change.” Specifically, the Board revealed that it is exploring the future use of electronic and internet voting in representation elections. Pursuant to longstanding secret ballot election standards, no such electronic or internet means for casting votes (remote or otherwise) in a Board-conducted election is recognized as permissible. As the controversial and newest Board Members Craig Becker and Mark Pearce start getting situated among their two sitting colleagues, the NLRB’s efforts to alter well-settled Board election standards seem to be in full swing.
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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