Total Articles: 96
It's 2012 And The NLRB Is Off To A Fast – And Controversial – Start
The 2011 calendar year was one of the more interesting years for the National Labor Relations Board (NLRB). The Board became a lightning rod for controversy and partisan politics due to its controversial decisions to utilize its rarely-used rulemaking authority to rewrite the rulebook on union elections and to require employers to post what many consider a pro-union National Labor Relations Act (NLRA) poster in its workplace.
NLRB Decide Class Action Waivers Violate the National Labor Relations Act
If you need more convincing that the National Labor Relations Board's work will affect the private-sector workplace (even after all the Facebook hoopla), here it is.
Laborwatch January 2012
Special Focus: State Minimum Wage Increases Effective January 1, 2012;
Quickie Election Rule Finalized Before Year End;
New Law Expands USERRA to Recognize Hostile Environment Claims;
Judge Needs More Time, NLRB Posting Rule Postponed to April 30, 2012
NLRB Giving and Taking Away
Two items from your friends at the National Labor Relations Board.
Executive Labor Summary - November/December 2011
NLRB closes Boeing case, but battle with Congress goes on;
Republicans seek legislation to prevent mini-bargaining units and "quickie" elections;
Republicans join opposition to NLRB notice rule;
Yet another unbelievable decision from the Obama NLRB;
Hospital could unilaterally implement flu-prevention policy after all.
Special Communication Regarding NLRB Posting Requirement
As a firm, we strive to keep our clients apprised of significant changes in the law. Consistent with this goal, we recently sent a letter reminding clients about the NLRB’s new Notice posting requirement, which will take effect January 31, 2012, absent a court stay or extension. We want to ensure you are aware of the NLRB’s new posting requirement and its ramifications so that your organization can comply.
Appropriations Bill Includes Regulatory Constraints on DOL, NLRB
Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.
Preventive Strategies Fourth Quarter 2011
A bulletin on employment, labor, benefits and immigration law for employers.
DoD, GSA, and NASA Adopt Final Rule on Notification of Employee Rights Under Federal Labor Laws
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.
Executive Labor Summary (September - October 2011).
Posting of poster is postponed;
Board's "August Onslaught" expands unions' power;
Union can't finance employee lawsuit during critical period before election;
9th Circuit finally breaks NLRB deadlock on dues checkoff in right-to-work states;
Facebook posts about chintzy food at BMW event are protected concerted activity, but not snarky; comments about auto accident, ALJ rules
Unionized Hospitals Must Tread Carefully Before Implementing Communicable Disease Policies
Recently, in Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board considered whether a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a flu-prevention policy that required nurses to wear a mask if they refused to be immunized against influenza.
New Mandatory NLRB Poster Published, But Posting Deadline Delayed. Is Your Business Exempt?
As reported last month, the National Labor Relations Board has issued a new rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act. The NLRB initially mandated that covered employers must comply with this new mandate by November 14, 2011.
NLRB Postpones Deadline for Notice-Posting
As we reported in late August, the NLRB announced a final rule requiring private sector employers to post a notice of employee rights under the NLRA. On Wednesday, October 5, 2011, the NLRB announced that it would postpone the implementation date for the controversial rule, stating that more time was needed for education and outreach to employers, especially to small and mid-sized businesses. The rule will now go into effect on January 31, 2012.
NLRB Posting Rule Delayed By Ten Weeks
The National Labor Relations Board (NLRB) announced yesterday that it has postponed the effective date of its recent rule requiring employers' workplace postings of "Notice of Employee Rights under the National Labor Relations Act." The Rule had been scheduled to go into effect on November 14th. It will now be effective on January 31, 2012. (For more information about the new rule, see our recent alert.
The NLRB’s “Employee Rights” Posting Requirement – Will it Withstand Judicial Scrutiny?
The National Association of Manufacturers (NAM) and the Coalition for a Democratic Workplace (CDW) have filed suit against the National Labor Relations Board, its members and its Acting General Counsel. Why?
Executive Labor Summary (August 2011)
Breaking news . . . Wilma Liebman's term expires!
Employers must post notice explaining employees' right to organize
Boeing trial not yet off the ground
Not all social media complaints about work are protected
How about that! Election set aside because of union's unlawful promise
No back pay for illegal immigrants
What?! Reinstate workers who "threatened" a supervisor?
"Quickie election" proposal gets more than 30,000 comments
11 Employer FAQs: (No. 2) "What does 'right to work' mean?"
As I've said in a previous post, "right to work" is not a synonym for "employment at will." A "right-to-work" state is one in which employees may not be required to join unions or pay union dues as a condition of employment.
Think Your Hospital Is Non-Union? Think Again!
It's an easy trap for employers—if your health care facility doesn't have a union, you may feel like the National Labor Relations Act doesn't have much application in your workplace. After all, the NLRA was designed to handle labor relations problems, and you have to have a union before labor issues can arise—right?
NLRB Finds that Unauthorized Workers Cannot Receive Backpay for Labor Law Violations, Regardless of Whether the Employer or Employees Violated Immigration Laws
In Mezonos Maven Bakery Inc., the National Labor Relations Board held that it cannot order backpay to individuals unauthorized to work in the United States, regardless of whether the employer or the employees caused the violation of the immigration laws.
U.S. DOL Proposes Expanded Persuader Reporting Rules for Employers and Labor Relations Consultants
The Obama Administration is continuing its apparent quest to impose its view of neutrality in labor organizing activity. On June 21, 2011, President Obama's Department of Labor released proposed regulations announcing a new, narrow interpretation of the "advice exemption" of the Labor Management Reporting and Disclosure Act ("LMRDA"), which would vastly expand the reach of the "persuader" reporting obligations for employers and their labor relations consultants under the LMRDA. Attorneys who engage in such persuader activities would also be covered by the reporting requirements. The rationale for the proposed change is essentially that it needs to be done. The details of the proposed change are described below.
The Labor Board Is Giving Employees More Rights To Complain
Section 7 of the National Labor Relations Act (NLRA) grants employees the right to "engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection." (emphasis added). This broad statutory language leaves room for subjective interpretation, and, over the years, the courts and the National Labor Relations Board (NLRB) have refined the standard for what conduct is considered "concerted."
Executive Labor Summary
Boeing trial taxis down the runway
NLRB sues Arizona over secret ballot law, and has South Dakota in its sights
Dues checkoff may survive contract expiration
NLRB adds "rat balloon" to unions' secondary boycott arsenal
NLRB Permits Use of Giant Inflatable Rats Against Employers with Whom Unions Have No Labor Dispute
Recently, the National Labor Relations Board decided that a union’s positioning of a giant inflatable rat near the entrance of a construction project at an acute care hospital where neutral employers worked (i.e., those with whom the union has no labor dispute) does not violate the National Labor Relations Act. Sheet Metal Workers Int’l Assoc., Local 15 (Brandon Reg’l Med. Ctr.), 356 NLRB No. 162 (May 26, 2011).
Executive Labor Summary (April 2011)
Acting General Counsel gives regional offices more authority to seek additional remedies for bad-faith bargaining over first contracts; Employer ordered to bargain at least 16 hours a week; Merely maintaining improper work rules gets decertification vote thrown out; NLRB upholds "bannering" of neutral employers.
Board invites amicus briefs on employee witness statements . . . and you know what that means!
Solomon seeks to change back pay guidelines to be less favorable for employers; House bill seeks to guarantee secret-ballot elections.
Labor Board Further Expands Employee Rights in Trio of Cases
Promoting union organizing, continued representation and greater bargaining strength, the National Labor Relations Board has decided a trio of cases that further expands employee rights despite behavior that may be deemed objectionable by employers and past Boards. The Agency turned a blind eye to behavior that can interfere with employee free choice while favoring unions in Terry Machine Co., faulted employers for policy statements having no demonstrable effect on the exercise of employees’ statutory rights in Jurys Boston Hotel, and berated management for trying to restrict expressive activity meant to embarrass the employer with its customers in the interest of mobilizing public opinion for a union in Southern New England Telephone Co.
Does Public Sector Union Bargaining Rights Reform Portend a General Referendum on Organized Labor?
The battles playing out in Wisconsin, Indiana, Ohio, and Michigan over public sector collective bargaining rights have dominated the news headlines over the past few months. Opponents to public sector unionism have argued that either eliminating or significantly curtailing public employees’ collective bargaining rights is necessary to balance state budgets across the country. This article addresses developments in these Midwestern states and possible implications that restricted collective bargaining rights for public sector employees might have on organized labor as a whole.
Executive Labor Summary (February 2011)
NLRB proposes rule requiring all employers to post notice of employees’ right to unionize; Board solicits amicus briefs on nursing home bargaining units; Acting General Counsel wants harsh remedies during organizing; Solomon wants to ensure that deferral arbitrations address employee rights.
A Big Week for Big Labor
On Wednesday, January 26, 2011, President Obama re-nominated former SEIU General Counsel Craig Becker to the National Labor Relations Board (NLRB). Obama previously nominated Becker to the NLRB in July 2009 but the nomination was blocked by the Senate in February 2010. The vote took place amid strong opposition to Becker's nomination by management and employer groups, which raised concerns that Becker would circumvent Congress by implementing portions of the proposed Employee Free Choice Act through NLRB decisions, and citing his radical views about union organizing campaigns and representation elections.
Employee's E-mail to Attorney Not Privileged Where Sent by Employer's Computer, California Court Rules
If an employee, using her employer�s computer and e-mail account, sends an e-mail to her attorney about possible claims against her employer, is that e-mail protected by the attorney-client privilege so that it may not be used as evidence against her? The California Court of Appeal has answered, �No.�
Pension Fund Withdrawal Liability Can Cripple Companies When Terminating Union Relationships.
Terminating a union contract can be an expensive proposition for a business. Under federal law, the union pension fund can assess a withdrawal liability to cover unfunded pension benefits.
A Crucial New Posting Requirement: Happy Holidays from the National Labor Relations Board
Today, the National Labor Relations Board (NLRB or Board) issued proposed regulations requiring employers to post notices informing employees of their rights under the National Labor Relations Act, including the right to form and join labor unions. These proposed regulations are significant both procedurally and substantively and apply to union and non-union employers.
NLRB Proposes Rule Requiring Posting of Employee Rights Under the NLRA.
The National Labor Relations Board (NLRB) has published a proposed rule that would require all employers covered by the National Labor Relations Act (NLRA), including unions in their capacity as employers, to post a notice informing employees of their rights under the NLRA. The proposed rule does not apply to employers who are not covered by the NLRA such as the U.S. government, any wholly owned government corporation, any Federal Reserve Bank, any state or political subdivision and any employer covered by the Railway Labor Act.
Under the NLRBs Newly Proposed Rule, Employers Must Post a Notice of Employee Rights Under the NLRA.
The Chairperson of the National Labor Relations Board (NLRB), Wilma Liebman, promised that under her leadership, the NLRB would actively reach out to inform employees of their rights under the National Labor Relations Act (NLRA). Chairperson Leibman has said that the NLRB would especially target younger employees, and suggested that younger employees would have a higher unionization rate if they knew their rights.
Executive Labor Summary (December 2010).
Pre-recognition card check deal was lawful, NLRB says: Solicitation of amicus briefs signals pro-union changes by NLRB: Casual employees get to petition and vote on union: Number of union wins is down, but number of union workers is up.
Proposed Public Safety Employer-Employee Relations Act Stalls in Senate
By a vote of 55 to 43, the Senate has rejected the effort of Senate Majority Leader Senator Harry Reid (D-NV) to move forward on the proposed Public Safety Employer-Employee Cooperation Act (PSEECA). Senator Reid had vowed to make this bill law, which, as recently as this summer had enjoyed bi-partisan support in both houses.
Senate Majority Leader Attempts to Move on Proposed Public Safety Employer-Employee Relations Act
Senator Harry Reid (D-NV), Majority Leader of the Senate, has filed to schedule a Senate vote on whether to debate the proposed Public Safety Employer-Employee Cooperation Act (PSEECA). Senator Reids December 6th action is consistent with reports that he would make a last-ditch effort to make good on his promise to pass this legislation in the lame-duck legislative session of Congress. He had failed to move the bill previously this summer.
Executive Labor Summary (September/October 2010)
NLRB to seek swift remedies during union organizing; Union vote within 10 days of petition? Could happen! NLRB plays catch-up...And throws curveballs!
Executive Labor Summary (July/August 2010).
Dont mess with our cans! Question Beckers ethics? No way! Women and children first!
EFCA? Trust us...we have a plan...just as soon as we figure out what it is. Laborers International Union bails on Change-to-Win, back to AFL-CIO. Two-member cases keep NLRB busier than one-armed paper hanger. Quality, not quantity? Majority of Americans support unions -- just barely.
UNITE HERE and SEIU settle "divorce".
Executive Order 13496 (Employee Posting Rule) Update.
Executive Order 13496's employee notice posting requirement became effective June 21, 2010. While no clause implementing the requirement has been finalized by the Federal Acquisition Regulation (FAR) Councils, an interim clause has been issued. Below are common questions regarding this new requirement for federal contractors and subcontractors.
Lawrence J. Casazza: The Art of Facilitating Communication in Labor Law.
As a senior partner in Vedder Price, Lawrence Casazza has nearly 4 decades of in-house & law firm experience representing management in traditional labor law matters: contract negotiation, dispute/grievance arbitration/mediation, union prevention and NLRB proceedings. The matters he handles often involve the intense emotion of conflict and confrontation, but his highly successful approach as a management counselor is to facilitate communication and cooperation as tools in resolving the problem.
Executive Labor Summary (May/June 2010).
New regulations address "anti-Beck" posting; Senate confirms nominations of Hayes and Pearce; Supreme Court rules two-member NLRB lacked authority; Predictable? Becker refuses to recuse; EFCA is dead for now, but there are other ways to skin a cat.
Unions Continue Healthcare Organizing Efforts With Wins In Texas.
Despite losing some steam in its push for the Employee Free Choice Act (EFCA), Big Labor continues intensive efforts to flex its muscles in the healthcare industry. During recent weeks unions organized some 3,000 workers in a series of elections at five hospitals in Texas. Already entrenched in Minnesota, nurses unions also staged a massive but short-lived walkout at 14 hospitals, while another 12,000 nurses in California threatened similar action. With a decidedly union-friendly National Labor Relations Board (NLRB) also in place, unions remain intent on advancing their agenda, especially in healthcare. Thus, hospital and other industry employers must remain vigilant and prepared.
Labor Law Update for Employers Who Are Not Unionized: Anticipated Changes Under the Obama NLRB.
Like many governmental agencies, the National Labor Relations Board (NLRB or Board), which enforces the National Labor Relations Act (NLRA), has become quite politicized. The five members who serve on the Board are appointed by the President and confirmed by the Senate. During the Bush Administration, the Board consisted of three Republicans and two Democrats. The Bush Board changed or modified many prior Board decisions, resulting in an obvious pro-employer tilt.
The Thing That Wouldn't Die: Do Past Practices Last Forever?
In our last issue we took a look at how past practices get started, and what that can mean to a company in a unionized setting. This time we'll take a look at keeping them from overwhelming you.
Executive Labor Summary (June 2010)
New regulations address "anti-Beck" posting; Senate confirms nominations of Hayes and Pearce;
Supreme Court rules two-member NLRB lacked authority; Predictable? Becker refuses to recuse;
EFCA is dead for now, but there are other ways to skin a cat.
NLRA Rights Posting Requirement for Federal Contractors Effective June 21, 2010.
NLRA Rights Posting Requirement for Federal Contractors Effective June 21, 2010: Understanding the New Requirement and Explaining It to Your Workforce
NO UNION, NO PROBLEM?
Employers that operate without a union probably do not devote much time or resources to compliance with the National Labor Relations Act (NLRA or Act). There are, after all, many other employment laws to worry about.
"What's Past Is Prologue." But Is It Binding?
In our representation of employers with unionized work forces, we have seen a number of issues come up which cause employers needless hardship and expense, and which in our view could have been avoided by some thoughtful advance planning. Of course every work place is different with different personalities on both sides of the table and different relationships, all of which are important and all of which preclude the imposition of very many firm "laws" of labor relations. But there are some themes which arise which we believe can be of use for unionized employers to consider.
Executive Labor Summary (April 2010).
NLRB May Be Totally Pro-Labor by September; Liebman Expects New Board to Reinvigorate Collective Bargaining; Stealth Replacements Cost Employer $2.55 Million; Validity of Two-Member NLRB Rulings Argued in Supreme Court.
DOL Takes the Next Step in Implementing President Obama's Executive Order Requiring Contractors to Hire Predecessor Employees.
On March 19, 2010, the Department of Labor ("DOL") published its much anticipated proposed regulations concerning Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts (the "Order"). The Order drew scrutiny immediately after it was issued on January 30, 2009 because it was viewed as an effort to increase union membership.
Example of Electronic Discovery in Employment Law.
For the uninitiated, electronic discovery has changed the nature of how litigation is conducted and the obligations imposed on litigants when it comes to the preservation of electronically stored information. A litigant who fails to take the necessary steps to preserve his electronic data can be sanctioned for this conduct, also known as spoliation.
Executive Labor Summary (December 2009)
What? NLRB General Counsel ordered to bargain!; NLRB poised for changes; EFCA update; Supreme Court will hear two-member Board cases; Teamsters out for blood? Canadian court upholds Walmart store closing; New nurses super union to become organizing machine?
Final Rule Issued Implementing Executive Order 13496 Requiring Contractors to Notify Employees of Their Rights Under the NLRA.
On December 10, 2009, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a final rule implementing President Obama's Executive Order 13496 entitled "Notification of Employee Rights under Federal Labor Laws" ("Order"). This Executive Order was signed on January 30, 2009, along with two other pro-labor Executive Orders entitled "Nondisplacement of Qualified Workers under Service Contracts" and "Economy in Government Contracting."
Executive Labor Summary: September/October 2009.
Whats up with EFCA? Anybodys guess; Constangy to argue 2-member Board case at Supreme Court; Handbook rule limiting media releases unlawful; More on the AFL-CIO convention;
HERE goes there; Have you hugged your nurse today? California leads the way for better or worse; Hey, kids lets rap! Unions are groovy!
With Or Without EFCA, Labor Reform Is Coming.
The Employee Free Choice Act continues to languish amid partisan squabbles in Washington, which means that its controversial elements such as card check and mandatory interest arbitration are unlikely to see the light of day this year. But as the discourse continues on Capitol Hill, attention is now shifting to the anticipated composition of the National Labor Relations Board (NLRB), which is responsible for administering national labor policy pursuant to the National Labor Relations Act.
NLRB UPDATE: Key NLRB Precedents Likely to Fall Under Liebman Board.
In February 2009, President Obama appointed long-time Board member Wilma Liebman as Chairperson of the National Labor Relations Board (NLRB). As a member of the Bush-era Board under former Chairperson Robert Battista, Ms. Liebman dissented from most of the critical pro-employer decisions issued under the Battista Board. Analysis of Liebman's dissenting opinions provides a legal roadmap charting the likely course the Liebman Board will take if presented with the opportunity to reconsider the issues addressed in these critical decisions.
Key Precedents Likely to Fall Under Liebman Board.
In February 2009, President Obama appointed long-time Board member Wilma Liebman as Chairperson of the National Labor Relations Board (NLRB). As a member of the Bush-era Board under former Chairperson Robert Battista, Ms. Liebman dissented from most of the critical pro-employer decisions issued under the Battista Board. Analysis of Liebman's dissenting opinions provides a legal roadmap charting the likely course the Liebman Board will take if it is able to reconsider the issues addressed in these critical decisions.
NLRB UPDATE: Key Precedents Likely to Fall Under Liebman Board.
Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap charting the likely course the Liebman Board will take if it is able to reconsider these issues.
Executive Labor Summary (July/August)
Beware of NLRB Nominee Becker, Chamber of Commerce says; Union must give hospital 10 days notice of workers refusal to work voluntary overtime; D.C. Circuit nixes employer-friendly NLRB ruling on non-work solicitations; Full capacity language in contract comes back to bite steel company.
DOL Issues Proposed Rule Implementing Executive Order Requiring Posting of Employee Rights.
On August 3, 2009 the Department of Labor issued a proposed regulation to implement Executive Order 13496, signed by President Obama on January 30, 2009. EO 13496 requires non-exempt Federal contractors and sub-contractors to post notices informing their employees of their rights under the Federal Labor laws, and more specifically, the National Labor Relations Act (NLRA). The proposed regulation does not apply to public sector employers or employers covered by the Railway Labor Act. The full text of the proposed regulation is available at: http://edocket.access.gpo.gov/2009/E9-17577.htm.
NLRB UPDATE: Key NLRB Precedents Likely to Fall Under Liebman Board.
Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap charting the likely course the Liebman Board will take if it is able to reconsider these issues.
NLRB UPDATE: Key NLRB Precedents Likely to Fall Under Liebman Board.
Earlier this year, we began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. In most of the critical Bush-era Labor Board decisions that favored employers, then Board member Liebman dissented, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap charting the likely course the Liebman Board will take if it is able to reconsider these issues. Consequently, we can expect significant changes in certain labor policy areas going forward.
Executive Labor Summary.
EFCA update; Two-member rulings continue; Arbitration of statutory discrimination claims? Not so fast! Read the entire contract! Union win rate rises in 2008; Raynor finally outta HERE; Am I here or at Dads this weekend?; Wedding plans?
CONGRESS CONSIDERS PATRIOT CORPORATIONS OF AMERICA ACT WITH PRO-UNION PROVISIONS.
A Congressional committee is currently reviewing a bill titled the "Patriot Corporations of America Act of 2009" (H.R. 1874), which would take effect for taxable years beginning after December 31, 2009. The bill's stated purpose is "to provide Federal contracting preferences for, and a reduction in the rate of income tax imposed on, Patriot corporations, and for other purposes."
Trading A Tax Break For Unionization: Analyzing the Patriot Corporation Act.
Most of the current focus among pro-management advocates is on the card-check provisions of the Employee Free Choice Act (EFCA). But don't lose sight of the fact that Congress is considering several other pro-labor legislative proposals that warrant scrutiny. One such proposal is the Patriot Corporations of America Act of 2009 (PCA) which, as drafted, provides employers with a Hobson's choice. One thing is clear: if enacted, the PCA will render EFCA moot with respect to the goal of increasing the success of union-organizing drives.
Don't Let Unions Exploit Your Personnel Rules.
Mistakes in drafting and enforcing employment policies can help a union to organize your institution. During union organizing drives, unions regularly look for legal violations by the targeted employer, including employment policies and practices that may violate the National Labor Relations Act (NLRA). Unions pursue and publicize such violations to undermine employee confidence in management and taint employer defenses to other charges that the union may file during the organizing drive.
In Today's Labor Environment, Those Who Hesitate Are Lost.
Whether the Employee Free Choice Act is enacted into law in its present form (unlikely) or a modified form, we will have a legislatively created method to make organizing easier. Unions are doing everything they can to keep the heat on. Recently the United Food and Commercial Workers union distributed a leaflet containing a union authorization card at the bottom with a picture of President Obama at the top and quoting him as follows:
Executive Labor Summary (April 2009)
EFCA update; It takes only two to tango, First Circuit says; Solis confirmed "wealthy CEOs," beware!
PRESIDENT OBAMA ENCOURAGES UNION ACTIVITY WITH EXECUTIVE ORDERS.
Union activity will likely dramatically increase during the current presidential term as a result of President Obamas recent executive orders. Not surprisingly, Obama received organized labors endorsement during his campaign. Many describe him as the most vocally pro-union president since the New Deal. Shortly after inauguration, while signing three union-friendly executive orders, he announced, I do not view the labor movement as part of the problem, to me its part of the solution Recently, he signed a fourth and related order.
Project Labor Agreements "Encouraged" in Latest Executive Order from Obama.
President Barack Obama signed yet another pro-labor Executive Order this week. This most recent Order encourages (but does not yet require) federal agencies to use project labor agreements on federally funded construction projects that exceed $25 million. The Order is viewed as part of a continuing assault on merit shop construction businesses.
Executive Labor Summary (Winter 2009)
Union membership grew again in 2008; Solis nomination heads to full Senate; Employee Free Choice Act in Trouble?; Walkout To Attend Negotiations Not Protected; Divorce not final?
Get outta HERE, says UNITE; Employer helping with decertification petition is a little too helpful, NLRB finds; Oh, rats! Its freedom of expression!
New Executive Orders Will Help Unions Organize Federal Contractors (pdf).
President Obama recently issued four Executive Orders, making it easier for unions to organize workers at
federal contractors. When signing the Orders, President Obama stated that they were designed to level
the playing fi eld for workers and the unions that represent their interests in dealing with management.
Obama Rescinds Beck Rule: Requires "Union-Friendly" Posting Instead.
The Beck Rule regulations are still technically on the books, but the Office of Federal Contract Compliance Programs has indicated that it will no longer be investigating federal contractors for compliance, now that President Obama has revoked the rule. On January 30, 2009, the President signed an Executive Order revoking an earlier Executive Order from President George W. Bush, which had required federal contractors to post a notice in non-exempt worksites informing employees of their rights not to join a labor union and not to pay fees for union expenses unrelated to representation issues. This obligation in the Bush order was called the Beck Rule after the Supreme Courts decision in Communications Workers of America v. Beck, which set forth such employee rights.
Obama's Order On Union Organizing Expected to Have Limited Scope.
Sending a clear pro-union signal to both employers and organized labor, President Obama initiated the first step toward what many believe will be a union-friendly agenda over the next four years. Executive Order No. 13495 could have a direct impact on a cost-plus contractors right and ability to react to a union organizing effort.
FOUR EXECUTIVE ORDERS: New Requirements for Federal Contractors and a Heads Up for All Employers
President Obama recently issued three Executive Orders that have a significant impact on federal contractors and provide a glimpse into his views about organized labor. The January 30 Executive Orders reverse certain obligations that President Bush imposed on federal contractors, creating new obligations and restrictions in their place.
The Potential Impact of President Obama's Three Executive Orders And A New Task Force.
On January 30, 2009 President Barack Obama fired three very clear shots across the bow of non-union employers. They were in the form of Executive Orders titled Nondisplacement of Qualified Workers Under Service Contracts, Economy in Government Contracting, and Notification of Employee Rights Under Federal Labor Laws.
President Signs Three Executive Orders Affecting Contractors.
Citing the need to level the playing field for workers and the unions that represent their interests, President Barack Obama on January 30 issued three Executive Orders affecting federal contractors. These Executive Orders tangible evidence of President Obamas belief that we have to reverse many of the policies towards organized labor that weve seen these last eight years impose new constraints on employers that contract with the federal government.
President Obama Issues A Series of Pro-Labor Executive Orders.
On Friday, January 30, 2009, President Obama signed three pro-labor executive orders affecting the rights of federal contractors and their employees. Intended to "level the playing field" for labor unions, the new executive orders reverse several Bush Administration policies that organized labor claims favored employers over unions.
New President, New Labor Agenda.
As Democrats take control of the Presidency and expand their control of Congress, employers await dramatic changes to labor and employment law. In the House and Senate, Democratic lawmakers are expected to introduce a host of controversial measures, from the now well-publicized Employee Free Choice Act (EFCA) to the lesser known Employment Non-Discrimination Act (ENDA).
Supreme Court Allows Unions to Use Members' Dues to Finance Litigation Outside of the Bargaining Unit.
Today the Supreme Court issued its decision in Locke v. Karass determining the ability of unions representing public sector employees to collect litigation costs as part of a compulsory "agency fee" authorized under state law, even if the litigation does not directly involve the local bargaining unit. Addressing a split among the Circuit Courts of Appeal on this issue, the Court refined a test previously set forth in Lehnert v. Ferris Faculty Ass'n, used for determining the propriety of including items in compulsory "agency fees" paid by nonunion members of a bargaining unit.
UNITE HERE In Hot Water With Cintas Employees.
Picture yourself leaving work at the end of the day. As you enter the company's parking lot you see several strangers around your car. They appear to be photographing your license plate, and taking notes. Later that week two more strangers come to your house at night. They call you by name and ask if you'd like to hear more about their union. When you ask how they got your name, they say by running your license plate number through the State's department of motor vehicles. That chilling scenario is what happened to between 1,758 and 2,005 Cintas employees in 2004.
Executive Labor Summary (Fall 2008)
Third Circuit Agrees: UNITE HERE Shouldnt Have Recorded Cintas Employees License Plate Numbers; Alcoa Bargained Over Decision to Stop Releasing Employees Early to Attend Union Meetings, Board Finds; Two-Member NLRB Keeps on Truckin, But Some Want it to Take a Pit Stop;
Wal-Mart Defends Its Campaign Against EFCA; Quelle horreur! (It Could Happen Here, Folks.);
UFCW Dedicates 66% of Its Revenue to Organizing; NLRB General Counsel Still the Target of Union Handbilling; Get a Job, You Bum!
Labor Law Update.
The National Labor Relations Act affects both union and non-union employees. Whether your organization is unionized or not, you should know about the following developments.
Executive Labor Summary.
Union Button Not Disturbing; Where Objective Evidence Supports Loss Of Majority Status, The Employer Prevails Absent Rebuttal Evidence By General Counsel; More E-Mails From The NLRB; Not At My House!; Owner Personally Liable For Back Pay; Labor Board Rolls Along With Only Two Members; SEIU Update.
NLRB Issues Four Important Decisions Impacting Employers.
The National Labor Relations Board recently issued several decisions that directly impact both union and non-union employers. In the first case, the Board ruled that voluntary recognition does not bar a decertification petition or a rival petition during the 45 days following recognition. In the second case, the Board held that filing a reasonably based lawsuit is not unlawful regardless of the motive behind the suit. The third case modified the standard for hiring bias claims brought under the National Labor Relations Act (NLRA). In the fourth and final case, the Board found that the at-will status of replacement workers does not prevent an employer from considering the replacements to be permanent. Below is a summary of each of these important rulings.
Board Finds ULP Charges Barred by Release in Termination Agreement.
The National Labor Relations Board (NLRB) recently held that waivers signed by a group of terminated employees in exchange for enhanced severance benefits barred unfair labor practice (ULP) charges filed by a union on behalf of the employees. See BP Amoco Chemical-Chocolate Bayou, 351 NLRB No. 39 (Sept. 29, 2007). In its 2-1 decision, the Board majority applied the factors it considers in determining whether a private settlement of a ULP is valid.
Labor Board Issues Three Decisions Unions Will Not Like.
The National Labor Relations Board has just issued several important employer-friendly decisions. The Bushappointed majority of the fi ve-member Board has (i) created a window period for fi ling election petitions following an employers voluntary recognition of a union, (ii) stiffened the evidentiary requirements for determining whether an employer violates the National Labor Relations Act by refusing to hire union organizers, also known as salts, and (iii) sanctioned the hiring of permanent striker replacements on an at-will basis.
Board Finds Reasonably Based Lawsuits Against Unions Protected.
In response to a U.S. Supreme Court order remanding the case for consideration by the Board, a 3-2 Board majority has held that the filing and maintenance of a reasonably based lawsuit does not violate the NLRA, regardless of the motive for bringing it. See BE&K Construction Co., Cases 32-CA-9474, 32-CA-9475, and 32-CA-12531-1-8 (Sep. 29, 2007). In this case, BE&K Construction sued a group of unions, claiming, among other things, that the unions violated the antitrust laws by engaging in efforts to delay a construction project that had been awarded to BE&K (which is a union-free employer). The lawsuit was ultimately unsuccessful. After the lawsuit was dismissed, the Board found that BE&K violated Section 8(a)(1) of the Act by filing the lawsuit.
UNITE HERE Inks Major Contract Deal With Las Vegas Resorts.
MGM Mirage, which operates 10 hotel/casinos in Las Vegas, entered into a five-year agreement covering 21,000 workers there. Although ratified on August 24, the deal is retroactive to June 1.
One More Reason To Stay Union-Free.
Ronald Meisburg, the General Counsel of the National Labor Relations Board, recently issued a memorandum announcing additional remedies that Board agents will be seeking against employers (and unions) who violate their duty to bargain in good faith during collective bargaining for a first contract.
Northwest Enters Into New Restructuring Deals (pdf).
This month has brought Northwest new
tentative deals covering pilots and flight
attendants and a ratified agreement with
agents, major achievements in the companys
restructuring efforts to reduce total annual labor
costs by $1.4 billion.
World Pilots To Vote On Tentative Contract (pdf).
World Airways pilots ended a nine-day strike after agreeing on
a new tentative contract February 5th. The 430 crewmen,
represented by the International Brotherhood of Teamsters
(IBT), struck the companys commercial operations on January 28th at
the end of a 30-day cooling off period. The union plans to complete
the ratification process in early March. The current contract became
amendable in June 2003.
Good Times for Employers at the NLRB.
The National Labor Relations Board has recently issued a number of decisions that are of interest to nonunion employers. The cases address whether a nonunion employee is entitled to have a representative or witness present during an investigatory interview and when workplace policies may run afoul of the National Labor Relations Act.
McSloy and Bassen: A great nation breaks its word: Indians, unions and the NLRB (pdf)
In 1960 in Federal Power Commission v. Tuscarora, the Supreme Court allowed Tuscarora lands to be taken and flooded for a dam, holding that the relevant federal statute did not expressly exempt Indian nations.
"American Workers are Struggling More Than Ever".
Nobody epitomizes organized labor like the American Federation of Labor and Congress of Industrial Organizations.
Non-Union? Don't Forget the NLRA.
We most often identify the National Labor Relations Act (NLRA or the Act) with union-management relations or efforts to unionize a workforce. As discussed in a previous article on "Weingarten" rights, the NLRA also applies to employers with no union-represented employees.
