The number of unionized workers in both the public and private sectors fell again in 2012, continuing a downward trend, according to a survey conducted by the U.S. Bureau of Labor Statistics (BLS). Last year 11.3% of wage and salary workers belonged to a union, down from 11.8% in 2011. The BLS survey provides data on union membership by industry, occupation, member demographics, and location, and includes wage statistics for both union and non-union workers. Notable findings include the following:
Littler Shareholder Walter Hunter Testifies at Joint Congressional Hearing on NLRB Developments Affecting Higher Education
On September 12, Littler Shareholder Walter Hunter outlined a number of concerns facing higher education institutions in light of recent National Labor Relations Board developments. Testifying before the House Subcommittees on Health, Employment, Labor, and Pensions (HELP) and Higher Education and Workforce Training, Hunter discussed various NLRB decisions and initiatives that he said are particularly problematic for the unique settings of our colleges and universities.
Opening the joint hearing, HELP Chairman Phil Roe (R-TN) asserted that the Board is “exploring actions that could bring significant changes to higher education institutions.” To this end, the hearing focused on the Board’s reexamination of its jurisdiction over graduate students, university faculty, and religious institutions.
Hunter – co-chair of Littler’s higher education practice group – emphasized that colleges and universities have a deep respect for the collective bargaining process where appropriate, but “will fiercely protect academic freedom, teaching, learning and research.” He touched upon several recent Board actions that would be detrimental in the university setting. Continue reading this entry at Littler's DC Employment Law Update.
In Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., a recent 2-1 decision, the Board ruled that a grocery store violated Section 8(a)(1) of the Act when it required its employees to distribute $5 store coupons to customers with an apology for union protest activity near its front entrance and information countering the union’s claims. In reaching its conclusion, the Board applied precedent from the union election context to the organizing scenario at issue in the case.
The issues in the case arose when the union presented the employer, an operator of a chain of grocery stores, with a petition allegedly signed by a majority of employees, stating that the employees wanted to be recognized by the union. The employer declined to voluntarily recognize the union.
The union did not file a petition for a secret ballot election. Rather, the union began distributing leaflets near the employer’s front entrance stating, in part, “[d]espite repeated requests from workers, Fresh & Easy has never recognized a union of their workers – instead choosing to fight their employees as they try to form a union.” Customers were upset by the union protest activity and complained to store management.
What constitutes objectionable conduct during a union campaign is an ongoing question for employers. Analyzing particularly blatant, albeit creative, union activities, the U.S. Court of Appeals for the D.C. Circuit recently reversed a National Labor Relations Board ruling that had rejected an employer’s challenge to election results based on alleged improper conduct by a union attempting to organize casino dealers. Trump Plaza Hotel & Casino v. NLRB (D.C. Cir. May 11, 2012).
In March 2007, the employer’s casino dealers voted 324-149 to be represented by the United Auto Workers Union. The employer filed objections to the election, alleging that union tactics interfered with the results. In particular, the employer took exception to the union’s prominent use of state and federal legislators in campaign propaganda. This included a letter of support and leaflet signed by numerous public officials (including over 60 state legislators), which was distributed and posted on the union’s website, as well as a “mock card check” ceremony conducted six days before the election, in which three public officials (state and federal legislators) signed a “certification of majority status” indicating that the officials had conducted a review of signed authorization cards and, “in accordance with NLRB rules,” had determined the union to be the majority representative of the dealers. The poster-sized “certification” was touted at a “ceremony” that was broadcast on a local NBC affiliate in an area in which 87% of the voting employees resided, and 100% worked, although there was no specific evidence regarding how many actually viewed the broadcast. Two newspapers also covered the rally, and the union later posted and distributed copies of the “certification” to members.
The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions.
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.
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.
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.
On March 7, 2012, lawmakers reintroduced two measures in the Senate, both of which would amend the National Labor Relations Act (NLRA), but they serve different objectives. One bill is sponsored by Republican Senator Jim DeMint (R-SC), and the other is a Democrat- sponsored bill. The National Right-to-Work Act (S. 2173) introduced by Sen. DeMint would repeal the provisions in the NLRA and the Railway Labor Act (RLA) that permit employers and unions to draft agreements requiring union membership and payment of union dues or fees as a condition of employment. While Sen. DeMint sponsored identical legislation in 2011 and 2007, the bill failed to sufficiently advance during those terms. The latest version of the bill is the 40th time such a measure has been introduced in Congress since 1973. It is unlikely that this bill will advance in the Senate this year. 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 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.
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.
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.
During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process. 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.
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 Board has announced a new approach to the question of whether the filing of a lawsuit to redress unlawful employment practices, when financed by a union prior to a representation election, interferes with a fair election. Specifically, in Stericycle, Inc., 357 NLRB No. 53, the Board held that a union engages in objectionable conduct warranting a second election when it finances a lawsuit filed during the narrow time period – known as the “critical period” – between the date of the filing of the representation petition and the date of the election, if the lawsuit asserts claims under federal or state wage and hour laws, or other similar employment laws on behalf of employees in the unit. The Stericycle decision overrules prior Board standards for determining whether union-sponsored lawsuits filed during the critical period will taint election results.
A recent decision handed down by the Board demonstrates that employers need to be very careful in the language they use to discuss the union with employees, particularly in the context of union decertification proceedings. In Mesker Door, Inc., 357 NLRB No. 59, a unanimous Board panel reversed the Administrative Law Judge and held that the employer violated Section 8(a)(1) of the NLRA when it relied on a petition and withdrew recognition of a union following a speech given by a plant manager that, among other things, suggested that money spent on defending unfair labor practice charges could otherwise have been spent making improvements in the plant.
In March 2005, a union was certified as the collective bargaining representative of a unit of production and maintenance employees at the employer’s Huntsville, Alabama manufacturing plant. The parties commenced bargaining in April 2005, and met on 22 occasions over the course of a year. They failed to reach an agreement, however, by their last bargaining session on May 3, 2006. The next day, the employer’s plant manager gave a speech during which he told two employees to either cease filing unfair labor practice charges or seek employment elsewhere. The plant manager further stated that the company had been required to pay their lawyers over $200,000 “to protect the company’s interests against the charges . . . $200,000 that otherwise could have gone into improving life in the plant.” Finally, the plant manager suggested that if the union had not taken an “us-versus-them attitude” during collective bargaining, the employees would have received larger monthly bonus checks. Four days after the manager’s speech, and approximately 13 months after the union’s certification, the employer withdrew union recognition based on a petition signed by a majority of the company’s employees.
Marking the end of Chairman Wilma Liebman's term, the National Labor Relations Board issued three significant decisions at the end of August that overturn long-standing Board precedent. In what may be the most significant of the three, a decision involving the healthcare industry, the Board paved the way for the proliferation of bargaining units by overruling its 1991 decision in Park Manor Care Center, 305 NLRB 872 (1991), and determining that certified nursing assistants ("CNAs") comprise an appropriate stand-alone bargaining unit. Although it involved a nursing home, the Board's decision is not limited to the healthcare industry and fundamentally changes the standard for determining appropriate bargaining units applicable to all employers. Continue reading this article here.
Photo credit: AlexRaths
To the frequent dismay of employers, the Board—and the Board’s Casehandling Manual—ordinarily leave the choice of election site to the discretion of the regional director, as the NLRA is silent on the location of elections. This includes whether or not to hold a mail ballot election. In Austal USA, LLC, 357 NLRB No. 40 (Aug. 2, 2011), the Board set the regional director to task when it was unable to determine whether the regional director “abused her discretion or, indeed, whether she exercised any discretion at all.” In Austal, the original representation petition was filed nine years earlier. The Board held the first election at the employer’s premises, but later overturned the results due to the employer’s unlawful and objectionable conduct including, on the day of the first election, for the first time, placing uniformed guards at the entrance to the facility. The Board also overturned the second election, held again at the employer’s premises, due to unlawful and objectionable conduct. When the Board directed the third election, the petitioner objected to the election being conducted at the employer’s premises and requested an alternate location or a mail ballot. The regional director informed the parties in writing the election would take place on the employer’s premises. The union thereafter made a request for special permission to appeal this decision.
NLRB Reaffirms Longstanding Rule That a Union Cannot Give or Promise to Give a Benefit as an Inducement for Election Support
In Go Ahead North America, LLC, 357 NLRB No. 18 (July 18, 2011), a Board panel consisting of Chairman Liebman and Members Becker and Hayes held that an employer’s objection to union’s promise of the dues waiver was meritorious and ordered that the union’s election victory be set aside and directed a second election.
The case arose out of a union’s effort to stave off defeat in a decertification election by distributing a flyer that stated in part that the union would not seek to collect any unpaid dues owed by the employees. The decertification petition was filed while the employer, which was a successor to a prior transportation contractor, was bargaining with the union for an initial contract. The prior transportation contractor had failed in its responsibility to withhold dues in accord with its checkoff agreement with the union. Consequently, all employees who had signed checkoff authorizations were at least one month, and perhaps two months, in arrears.
Disqualifying a Union From Representing Employees Because of a Conflict of Interest Requires More Than Competition
A union may not represent the employees of a particular employer if the union has a conflict of interest. The National Labor Relations Board has stated that a union seeking to represent a group of employees must have the “single-minded purpose” of protecting and advancing the interests of those employees. The union must not have an ulterior motive. A union will have a disabling conflict of interest that will disqualify it from representing a group of employees if a “clear and present danger” exists that the conflict will prevent the union from vigorously representing the employees in the bargaining process.
In Supershuttle International Denver, Inc., 357 NLRB No. 19 (July 18, 2011), Board Chairman Liebman and Members Becker and Pearce held that, under these standards, a disabling conflict of interest did not exist when the union seeking to organize the employer’s shuttle van drivers already represented 262 members of an organization called the Union Taxi Cooperative (UTC). The union did not have a collective bargaining relationship with UTC on behalf of the taxi drivers. Instead, UTC paid monthly dues for each member of UTC, and in exchange the union assisted UTC with administrative and governance matters, including overseeing the election of UTC’s officers and board of directors; intervening on behalf of UTC in disputes with a hotel; meeting with governmental parking and airport officials on behalf of UTC members; and accompanying UTC members to court to assist with plea bargaining of citations.
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:
Among the more significant initiatives that NLRB Acting General Counsel Lafe Solomon has pressed for is the implementation of a program to streamline the process for seeking Section 10(j) injunctive relief ‑ and to expand the substantive scope of when to pursue such serious relief. Section 10(j) of the National Labor Relations Act (NLRA) permits the NLRB to seek a federal court injunction to proscribe unions and employers from committing unfair labor practices – the intended purpose being to use such drastic court-sought remedies where needed to maintain the status quo while a matter is pending before the Board.
While Solomon focuses on the Section 10(j) program as a “top priority,” some have questioned whether the Board’s General Counsel even possesses the statutory power under the NLRA to approve independently such direct court action without the NLRB itself becoming involved.
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.
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.
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
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).
In Mental Health Association, Inc., 356 NLRB No. 151 (Apr. 29, 2011), the NLRB overturned an employer’s election victory primarily because of election-day actions by the employer. Among other things, on election day, the employer limited employee access to the facility to one employee entrance. The employer also stationed openly anti-union employees at that entrance and gave them control over it for a substantial portion of the voting period. In addition, the employer hired security personnel, erected a fence around part of its parking lot, and posted “private property” signs, allegedly without evidence of a security threat. The NLRB concluded that the totality of this conduct “tended to interfere with employees’ free and uncoerced choice in the election,” setting aside the election results and ordering a new election.
The union asked the NLRB to rescind the long-standing presumption that elections will be held on employer premises and to replace it with a presumption that an election will be held at a neutral site unless the parties agree otherwise. The union asked alternatively that the NLRB adopt a rule that a re-run election be conducted at a neutral site in any case in which an election is set aside because of election day misconduct. The NLRB declined to do so:
Chairman Liebman and Member Pearce observe that this case illustrates some of the shortcomings of the [NLRB’s] current practices regarding the siting of elections. They are not prepared at this time, however, to deviate from the [NLRB’s] current practice of leaving the determination of the appropriate method and location for initial and rerun elections to the discretion of the Regional Director.
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.
The National Labor Relations Board created a stir in late 2010 by filing an unfair labor practice charge against ambulance company, AMR, for firing an employee who, among other things, called her supervisor a “mental patient” in a Facebook post read by many co-workers. As it turns out, the “Facebook case” was just the beginning of what appears to be a trend by the Board, subsequently joined by unions, to restrict employers’ ability to promulgate and enforce social media policies that, in the Board’s view, impinge on employees’ rights under the National Labor Relations Act. Several recent developments provide a window into the Board’s intentions.
Last week, the NLRB’s Hartford Regional Director, who was responsible for filing the Facebook case, provided useful information about the Board’s intentions, both in comments and in handout materials, while speaking on a panel for the Connecticut Bar Association. To learn more, please continue reading at Littler's Workplace Privacy Counsel blog.
Union Representative's Presence In Parked Car at Voting Place Does Not Warrant Setting Aside Election
A three-member panel of the NLRB (Chairman Liebman and Members Becker and Hayes) unanimously dismissed an employer’s claim that a union representative sitting in a parked car, visible to employees entering and leaving the employer’s facility to vote, constituted objectionable election conduct. In C & G Heating and Air Conditioning, Inc., 356 NLRB No. 133 (April 6, 2011), the Board adopted the regional director’s findings and certified the union’s election win in a nine-person bargaining unit. The decision provides further guidance to non-union employers seeking to understand what the current Board considers sufficiently objectionable conduct to warrant setting aside an election.
In C & G, a union representative attended a pre-election conference inside the employer’s facility and then left to have breakfast while the polls were open from 7:30 a.m. to 8:30 a.m. The union representative returned to the facility at 8:05 a.m. and sat in a parked car approximately 77 feet from where voting employees were seen entering and exiting the facility. The employees voted 6 to 1 (with 2 challenged ballots) in favor of union representation. After the vote, the employer filed an objection to the election based on the union representative’s presence in the vicinity of the voting location.
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.
Several recent cases issued by the National Labor Relations Board continue to reflect a consistent majority view with respect to representation cases and unfair labor practice matters. In Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant, 356 NLRB No. 129 (March 31, 2011), the Board held that the employer, a New York City restaurant, had engaged in a host of Section 8(a)(1) violations of the NLRA, including interrogating, threatening and attempting to arrest an employee because he and a group of 20 to 25 nonemployees entered the restaurant during evening dining hours to deliver a letter protesting the employer’s alleged labor law violations. The employer’s wait staff had been expressing dissatisfaction over their belief that they were not getting all the tips left by the customers. Employees advised restaurant management of the issues, and the wait staff consulted with the Restaurant Opportunity Center, an advocacy group, in New York City that organizes restaurant workers for workplace justice campaigns.
Although the legal standard involving Section 8(a)(1) allegations was not in dispute, there was a significant factual disagreement. When the dust settled, the administrative law judge and the Board majority accepted the employees’ version of events. The majority stated that there was no evidence that the group disturbed the handful of patrons present, blocked the ingress or egress of any individual, was violent or caused damage, or prevented any employee from performing his work. Thus, the activity remained protected at all times. This case underscores the importance of the credibility of witnesses and the cohesion of each witness’ version of the events.
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.
Board Overturns Election Where Employer Says Previously Announced Improvements Would Be "Subject to Negotiation"
In Longview Fibre Paper & Packaging, Inc. (March 9, 2011), the Board ruled that an employer violated Section 8(a)(1) of the NLRA and engaged in objectionable conduct during a union campaign through its statements to employees regarding the status of certain terms and conditions of employment.
According to the Board, the evidence showed that prior to any organizing efforts by the union, the employer announced a series of favorable benefit changes that were scheduled to take effect at the beginning of the next plan year. During the union campaign, the employer’s president held a captive audience meeting in which he advised employees verbally and through PowerPoint slides that the previously announced improvements would not be implemented if the union won the election, but would instead be “subject to negotiation,” like all terms and conditions of employment. While a stand-alone statement that mandatory subjects (such as PTO and wages) are “subject to negotiation” is not itself unlawful, the Board found such statements to be unlawful in this case. The PTO changes had already been announced, the Board reasoned, and therefore the statement constituted a threat to employees that they would lose a previously announced benefit if they voted for the union. The Board cited established precedent, noting, “in the midst of an on-going union organizing or election campaign, an employer must proceed with an expected wage or benefit adjustment as if the organizing or election campaign had not been in progress.”
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 U.S. Transportation Security Administration (TSA) has given airport security screeners limited collective bargaining rights. In his determination (pdf) conferring such rights, TSA Administrator John Pistole provides a collective bargaining framework that “retains the capability and flexibility necessary to respond to evolving threats, and continue improving employee engagement, performance and professional development.” In November 2010, the Federal Labor Relations Authority (FLRA) issued a decision that permitted Transportation Security Officers (TSOs) to vote for union representation, but did not grant the potential union representative the power to bargain collectively with the agency.
According to a fact sheet, more than 13,000 TSOs are paying dues to one or more unions that provide personal rather than collective representation. Further, these unions are not permitted to bargain on behalf of TSA employees. Pistole’s 21-page determination provides for collective bargaining at the national level on non-security employment issues only. Such topics include shift and annual leave bids (excluding shift start times and types of shifts, number of shifts, days off, and guarantee of consecutive weeks); transfers; the awards and recognition process; shift trade policy; process for work status change from full time to part time and vice versa; uniforms; selection process for special assignments; and parking subsidies. The determination prohibits local-level bargaining at individual airports, as well as bargaining on security-related topics such as security policies; procedures or the deployment of security personnel or equipment; pay, pensions and any form of compensation; proficiency testing; job descriptions and qualifications; fitness for duty standards; performance standards and staffing; numbers and types of employees; and disciplinary standards. In addition, TSOs have no right to strike or engage in work slowdowns.
If a majority of TSOs vote in favor of unionization, they will retain the option of becoming members and/or paying union dues. The first FLRA-conducted election – which could affect close to 50,000 airport screeners – is slated to occur this Spring. The two unions that will appear on the ballot are the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU).
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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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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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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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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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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.
The NLRB recently issued its decision in Kansas City Repertory Theatre, Inc., 356 NLRB No. 28 (2010) (pdf), further underscoring the current majority’s view that the right to organize should extend as broadly as possible. In Kansas City Repertory Theatre, the Board affirmed the decision of the Regional Director and determined that a group of musicians hired to perform in a single musical production constituted an appropriate unit for collective bargaining. The majority (Members Becker and Pearce) reached its conclusion notwithstanding the fact that the employer seldom staged performances requiring live musicians and very few of the musicians in question had ever performed in more than one production for the employer. Distinguishing the line of Board authority excluding temporary and seasonal employees from bargaining units containing regular full-time or part-time employees, the majority determined that the National Labor Relations Act does not exclude employees who only work sporadically from exercising their right to organize and bargain collectively. Dissenting, Member Hayes determined that the employees did not have a reasonable expectation of future employment and, therefore, their election petition should have been dismissed.
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.
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.
As further repudiation of the proposed Employee Free Choice Act’s (H.R. 1409, S. 560) “card check” provision, voters in four states on Tuesday approved constitutional amendments to preserve secret ballot union representation elections. The state constitutions in Arizona, South Carolina, South Dakota and Utah will now contain similar language upholding the “fundamental” right to the secret ballot. Considered a preemptive strike against EFCA and other administrative efforts to bypass secret ballot elections, such ballot initiatives likely will become more prevalent.
In Arizona, the majority of voters approved Proposition 113, which amends the state constitution by adding the following section:
The NLRB has issued a dramatic 2-1 ruling that calls into question the continued viability of the Board’s 2004 Brown University decision, in which it held that graduate student assistants are not statutory employees subject to the National Labor Relations Act.
Earlier this year, the UAW filed a representation petition seeking to organize graduate and teaching assistants at NYU. That petition was dismissed by the Board’s regional director, citing Brown. On October 25th, the NLRB reversed this dismissal and remanded the case to the regional director for a full evidentiary hearing, in part to explore whether there are facts justifying the granting of collective bargaining rights to graduate students, irrespective of the Brown decision. More significantly, however, the Board also stated that there are “compelling reasons for reconsideration of the decision in Brown University.” Thus, there are two ways that the graduate students could obtain collective bargaining rights at NYU: first, if there is a determination that the facts at NYU are different than those outlined in Brown; and second, if the new Board directly overrules the Brown decision.
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.
The U.S. Department of Labor (DOL) has announced its intent to publish in November 2010 proposed new standards for interpretation and enforcement of the Labor-Management Reporting and Disclosure Act (LMRDA) as applied to employers regarding persuader activity. The new standards are expected, at the very least, to narrow significantly the scope of the "advice exemption" in LMRDA Section 203(c), thereby broadening the scope of what is treated as direct persuader activity that must be reported to the DOL. Other changes are possible as well, including new standards regulating conduct and speech by an employer's own managers and supervisors. The exact details will not be known until DOL publishes its notice of proposed regulations in the Federal Register, but the DOL has signaled its intent to radically change rules that will affect employers' rights in dealing with union organizing activity.
Continue reading this Littler ASAP article.
In a continuing example of the labor movement’s penchant for self-immolation, the SEIU prevailed in a hard fought campaign against the NUHW, the National Union of Healthcare Workers, at Kaiser Healthcare in California. As previously reported in this blog, the NUHW was created by the former leaders of an SEIU local based in Oakland known as United Healthcare Workers-West. It was a bitter divorce marred by taunts, accusations and lawsuits that made an episode of the Jersey Shore look like family entertainment. In the end, the SEIU won a $1.5 million dollar verdict against NUHW and 15 of its leaders for improperly devoting their efforts to SEIU-represented employees while simultaneously creating the rival union.
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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