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Total Articles: 223

The New Union-Organizing Tool … Embarrassment

Unions and other third parties have never before so heavily used public embarrassment as a means of organizing employees. The key to union organizing is to find a disgruntled employee who will serve as a leader and capitalize on existing workplace problems. These problems are typically compounded by communication breakdowns and ineffective supervisors. Surveys show that the most divisive workplace issues are a sense of unfairness, discrimination, an unsafe workplace, and a sense that the employer does not care about employees.

Box Score Petitions Compiled By The Hospitality Update Staff

In the most recent 60-day period, we were aware of 19 petitions filed against hospitality employers.

NLRB Decisions on “Micro Units” Provide Guidance for Employers Concerned With Union Organizing

In two recent decisions, the National Labor Relations Board (NLRB) reached different conclusions on whether unions can organize small groups of employees in a workplace. While the NLRB’s decisions in Macy’s, Inc. and The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, both deal with retail employers, the principles articulated are applicable to employers in all industries. The decisions constitute a roadmap for unions seeking to gain representation rights over workers in single departments or within single job classifications. Employers concerned about union organizing need to understand the new paradigm that the NLRB created with these cases and take proactive steps to counter the expected surge in union organizing.

THE ATTACK ON FRANCHISING: An Analysis

Richard F. Griffin, General Counsel for the National Labor Relations Board and former General Counsel for the International Union of Operating Engineers, has decided to assert that McDonald's Corporation and its franchisees are "joint employers." Contrary to the impression created by the media, the General Counsel has no power to make "rulings." He makes claims, claims which may or may not have factual or legal merit.

SCOTUS Preview: Is the End in Sight for Public Employee Unionism (and Fair Share Fees)?

Does a collective bargaining agreement that requires nonunion home-care workers to pay a fee to a union representative violate the First Amendment of the U.S. Constitution? In the next few days the Supreme Court of the United States will decide this question in a case challenging a state law requiring workers who provide in-home care to disabled individuals through Medicaid-waiver programs to pay “fair share fees.” The case, Harris v. Quinn, will determine the constitutionality of an Illinois law that requires these workers to accept and financially support a union as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs. The Court will also rule on whether the claims brought by some employees who have rejected unionization and are not subject to fair share fees are ripe for judicial review.

Healthcare Employers Must Be Consistent When Restricting Union Buttons and Other Insignia

Executive Summary: The National Labor Relations Board ("NLRB" or "Board") recently held that a healthcare employer violated the National Labor Relations Act (NLRA) by prohibiting employees from wearing union protest stickers. See HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118 (June 22, 2014). In the 2-1 decision, the Board found that HealthBridge could not prohibit employees from wearing union protest stickers inside or outside patient care areas because its rules were only selectively enforced, and HealthBridge could not establish "special circumstances" to justify the ban.

Northwestern Football Players' Unionization Remains Long Shot

An article by Freedley Hunsicker Jr., was featured in The Legal Intelligencer on May 6, 2014.

Will the Star Quarterback Be Sacked by the Taxman?

On March 26, 2014, a regional director of the National Labor Relations Board (NLRB) decided scholarship football players at Northwestern University are employees because they “perform services for the benefit of the employer for which they receive compensation.” A main factor in the regional director’s decision was that the monetary value of football scholarships is “as much as $76,000 per calendar year” meaning that the players receive in “total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties.” The regional director also found that Northwestern’s scholarship football players are not primarily students but rather are “employees” under the common law definition. He noted that Northwestern has not treated scholarships or stipends as taxable income but held that not to be dispositive, citing a 2002 case decided by the Ninth Circuit Court of Appeals, Seattle Opera v. NLRB.

Eligibility of University Football Players for Union Representation Expected to be Hotly Contested

Whether Northwestern University’s grant-in-aid scholarship football players are eligible as employees for union representation under the National Labor Relations Act will be decided by the National Labor Relations Board. In granting the University’s “Request for Review” of the Regional Director’s March 26, 2014, decision holding that they were eligible for such representation, the Board noted that it will accept amicus (friend-of-the-court) briefs, setting the stage for an intense, high-stakes battle.

Are We There Yet?: Do Northwestern Players Have a Union or not?

When a Regional Director of the National Labor Relations Board (NLRB) found that scholarship football players at Northwestern University were employees entitled to vote on union representation, many media reports treated the case as a victory for the union. But as one Lawrence Peter “Yogi” Berra said, “It ain’t over ‘til it’s over.” The union scored first, but the game has not been decided.

NLRB to Decide Whether Northwestern’s Scholarship Football Players Are Students or Employees

Late this afternoon, the National Labor Relations Board (NLRB) in Washington, D.C. granted the request for review (i.e., an appeal) filed by Northwestern University in the much-watched case involving the status of Northwestern’s grant-in-aid scholarship football players. Northwestern is asking the NLRB to review and reverse the decision of the regional director of the NLRB’s Chicago office, finding that Northwestern’s scholarship football players (but not walk-ons) are “employees” under the law and eligible to vote on the issue of union representation.

UAW Puts Brakes on Objections to Volkswagen Election Just Before Hearing - Avoiding Crash Into First Amendment?

The United Auto Workers Union yesterday served notice of withdrawal of its objections to the National Labor Relations Board election conducted in February at Volkswagen's plant in Chattanooga, Tennessee, which means that the employees' vote to reject UAW representation will stand. More importantly, the withdrawal means that the NLRB will be able to avoid what promised to be some sticky First Amendment issues.

Northwestern Ruling Is Full Of Conflicts

Popular support for unionization of college athletes grew out of legitimate safety concerns and recognition that some players may need stipends to supplement their scholarships, Kevin wrote. However, the recent narrowly applicable, politically driven decision to permit scholarship football players at Northwestern University to unionize does more harm than good.

Flag On The Play: Will Unions Change the Game of College Sports?

In a historic move, members of the Northwestern University football team recently took initial steps to form a union and seek collective-bargaining rights with the university. Shortly thereafter, the team filed a petition with the National Labor Relations Board (NLRB). In a decision that has some experts scratching their heads, the Board’s Regional Director in Chicago issued a decision finding that scholarship athletes are, in fact, employees under the National Labor Relations Act and are eligible to vote for union representation.

Shame On Who? Responding to Union Corporate Campaigns, Protests, and Bannering

The recent retail and fast food industry protests regarding demands for a “living wage” remind us that corporate campaigns by unions are a form of corporate warfare. They seek to inflict upon employers a “death from a thousand cuts.” Corporate campaign tactics include publicizing extremely negative and often false statements concerning the target company and its executives and attempting to intimidate those doing business with company. The objective is typically to embarrass the target, cause customers to take their business elsewhere, and ultimately force the employer to agree to some union demand.

NLRB Rules That Scholarship Football Players at Northwestern University Are “Employees” Under the National Labor Relations Act With Right to Unionize; Northwestern Will Appeal

Earlier this week, NLRB Regional Director for Region 13, Peter Sung Ohr, issued a highly publicized decision and ruled that grant-in-aid scholarship football players at Northwestern University are “employees” under the National Labor Relations Act and, as such, have the right to unionize.

Recent NLRB Decision Finding Scholarship Football Players to be "Employees" Raises a Host of Legal and Practical Issues for College Football Programs

By decision dated March 26, 2014, National Labor Relations Board (NLRB) Regional Director Peter Sung Ohr upheld the findings of a hearing officer which determined that all football players at Northwestern University who receive grant-in-aid scholarships are “employees” within the meaning of the National Labor Relations Act, and that a petitioned-for unit — comprising all Northwestern University football players receiving scholarships who have not exhausted their playing eligibility — may vote by secret ballot to determine whether the College Athlete Players Association (CAPA) should be their bargaining representative/union.

NLRB Regional Director Rules College Football Players Can Unionize

On March 26, 2014, a regional director for the National Labor Relations Board (NLRB) issued a decision and direction of election in a union representation petition filed by the College Athletes Players Association (CAPA) seeking to represent Northwestern University’s football players. CAPA, led by former Northwestern quarterback Kain Colter, petitioned the Board for a ruling that Northwestern football players who receive grant-in-aid scholarships are university employees and therefore eligible to form a union and engage in collective bargaining under the National Labor Relations Act (NLRA). The United Steelworkers and the National College Players Association supported the student-athletes’ efforts. The university opposed the petition, arguing that scholarship athletes are not employees, but similar to graduate teaching assistants who receive stipends and whom the Board has historically held are not employees because their primary purpose and relationship to their schools is educational, not economic.

Healthcare Unions Turning to Ballot initiatives to Achieve Labor Goals

Recently, on opposite coasts, healthcare union have been pressing voter ballot initiatives to win concessions from hospitals and other healthcare institutions that the unions have been unable to successfully negotiate.

Some Thoughts on the UAW's Loss at Volkswagen

In a much-heralded campaign to organize Volkswagen's Chattanooga manufacturing plant, the United Auto Workers union lost an election last week by a vote of 712 to 626. There were 1,550 eligible voters in what was essentially a plant-wide unit. In what may have been one of the first "Quickie Elections" overseen by the National Labor Relations Board, the actual vote was set a mere nine days after the parties entered into a Stipulated Election Agreement. Before the election, VW management had agreed to remain neutral, provide union organizers with on-site access to employees during working hours, and restrict the efforts of anti-union employees. These arrangements were largely unprecedented in the history of the labor movement. Based on the amount of assistance that VW provided to the UAW, most labor experts had expected an easy union victory.

BLS Report Indicates Slight Increase in Private Sector Unionization

While the overall percentage of union membership in the U.S. workforce remained unchanged at 11.3% in 2013, there was a slight increase in the number of unionized workers in the private sector for the first time since 2009, according to the new Bureau of Labor Statistics (BLS) annual report. On the whole, 16 million U.S. workers were represented by unions in 2013. This total includes workers who are union members (14.5 million) and those who are not union members, but whose jobs are covered by a union contract (1.5 million). The percentage of private sector workers belonging to a union rose from 6.6% in 2012 to 6.7% in 2013. Total private sector jobs covered by union contracts similarly increased from 7.3% to 7.5%.

Are Unions the Newest Item on the Menu? A Look at the Restaurant Unionization Movement

In August 2013, employees at more than 1,000 fast-food restaurants in over 50 cities staged work stoppages. Employees took to the streets demanding a wage increase to at least 15 dollars an hour, twice the federal minimum wage. These protests were supported by organized labor as well as community groups such as Justice at Work, a nonprofit organization that provides legal services to support and encourage organization of low-wage immigrant workers. Even though UNITE HERE has traditionally been seen as the main union representing food service workers, it was the Service Employees International Union (SEIU), which represents more than two million workers in health care, janitorial and other industries, that provided financial support and training for local organizers across the country in preparation for the strikes.

State of the Unions: New Tactics Target Unorganized Workers

If you've been following the news, you probably realize that it has been a busy year for organized labor. The percentage of unionized workers in the private sector has fallen to historic lows, leaving unions with fewer dues-paying members, and motivating them to adopt new tactics to stem the decline. Exploiting a more favorable environment created by recent NLRB decisions promoting unionization, unions are turning their focus to grassroots organizations, social media, and previously uncharted geographical territory in an effort to revitalize their base.

Cherry Picking Supporters and Unionizing Them – The New World of Micro-Units

The Sixth Circuit Court recently held in Kindred Nursing Centers East, LLC v. NLRB that the National Labor Relations Board (“Board”) did not abuse its discretion in Specialty Healthcare, a decision allowing the creation of “micro-bargaining units” e.g., small groups of employees, in non-acute healthcare facilities.

New Health Care Law Poses New Union Organizing Threat

A New Orleans-based labor union has begun using the new federal health insurance exchanges created by the Affordable Care Act in an effort to unionize workers over a three-state territory, including Arkansas, Louisiana, and Texas. That's according to an alert issued on October 24, 2013, by the Louisiana Association of Business and Industry ("LABI"). Click here to read the full text of the alert and learn who's behind the new union organizing scheme and how it works.

Everything You Need to Know About the New FMLA

The new FMLA rule went into effect March 8. Are you ready?

Unions Want Fast Food – Now!

With union membership rates at their lowest level since the National Labor Relations Act (NLRA) was enacted in 1935, organized labor is desperately seeking to attract new members, even if that means targeting new industries that have traditionally been ignored. Over the past few months, unions have been busy sparking drives to organize retail and fast food service workers across the country.

Employers Using Labor Lawyers and/or Persuaders Likely to Face Reporting Requirements

Change may be coming for employers who hire labor relations consultants, including attorneys, to conduct union-related activities.

Major Threat to American Businesses is Back on the Table

Union boss Richard Trumka, head of the AFL-CIO, is predicting the return of one of the biggest threats to American employers – “card check” legislation.

NLRB Judge Holds Union Not Liable for ‘Threats’ Against Employees on Facebook Page

In a ruling involving the National Labor Relations Act and employees’ or union members’ use of the popular social networking medium, “Facebook,” a National Labor Relations Board administrative law judge has refused to liken threats made by union members on Facebook to threats made by those same union members who happened to be on a picket line or in person. In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO and Charles Weigand (an individual), No. 28-CB-078377, union bus drivers for Veolia Transportation Services Inc., in Phoenix, Arizona, engaged in a six-day strike. During and after the strike, on the union’s Facebook page (and in person), members of the union threatened other employees with less favorable representation for refusing to participate in the strike. They also threatened those employees with physical harm.

NMB Issues Final Rule Implementing Representation Procedure Changes

The National Mediation Board (NMB) has issued its final rule (pdf) implementing the changes to NMB procedures regarding run-off elections, “showing of interest” thresholds for representation elections, and the agency’s rulemaking authority that were included in the FAA Modernization and Reform Act of 2012 (FAA Act), signed into law on February 14, 2012. Notably, the FAA 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.

Talk, Talk, Talk About Unions

Most employers are reluctant to talk about unions and haven’t done it.

Personal Care Assistants: The Next Employees to Unionize?

Recent developments at the state capitol suggest that up to 20,000 individuals who are not currently eligible to join a union may soon be able to do so. These individuals are Personal Care Assistants hired directly by an elderly or disabled person or the person’s family to assist with bathing, grooming, dressing, and other personal needs. They are paid through the state’s Medicaid program administered by the Minnesota Department of Health and Human Services.

Signs of the Times: NLRB General Counsel on Employers’ No-Solicitation Signs

Can a sign saying simply, “No Solicitation,” posted on a store window, be found lawful although on its face it could be viewed as unduly restricting employees’ protected union activity? An Advice Memorandum of the National Labor Relations Board’s General Counsel’s Division of Advice indicates the answer is “sometimes,” but a careful reading of the opinion also suggests a strong admonition for most retailers against embracing this shorthand prohibition too quickly.

Michigan As a Right to Work State - Random Thoughts

First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes. And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise.

At Year’s End, Pending NLRB Decisions Weigh Heavily on Higher Education December 10, 2012

A trio of cases currently pending before the National Labor Relations Board (NLRB) could drastically affect employment relationships within higher education. At stake in all three cases are members of the university community’s right to organize, join, form, and assist labor unions. We have been closely following major developments in all three cases, and because decisions are likely to be issued before the end of the year, we want to re-focus your attention on these potentially landmark cases.

Box Score Petitions Compiled by the HLL Staff

We are aware of only ten petitions filed during the month of October, the last month for which we have any reports.

Construction Union’s Targeting Neutral Employer to Pressure Primary Employer is Unlawful Coercion

A federal appeals court in St. Louis has upheld a National Labor Relations Board ruling against a union for violation of the National Labor Relations Act by refusing to enter into a collective bargaining relationship with a neutral subcontractor in order to force the construction manager (the primary) to sign a union contract, where a collective bargaining relationship was necessary for union subcontractors, such as the neutral, to perform work on union construction projects managed by the primary.

NLRB Opens the Door for Off-Duty Employees to Engage in Organizing Activity

Many employers maintain policies prohibiting off-duty employees from accessing their facilities. Since its Tri-County Medical Center decision more than 35 years ago, the National Labor Relations Board has found such policies to be lawful so long as the policy: (1) limits access solely to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities. In the last year, however, the Board has relied on the third prong's "for any purpose" language to chip away at an employer's ability to implement and enforce off-duty access policies.

Retailer that had Non-Union Workers Distribute Anti-Union Fliers Violated Labor Law

An employer that, during a union organizing campaign, requires its non-union workers to hand out fliers that reasonably could be perceived as part of an anti-union campaign may be found in violation of the National Labor Relations Act, the National Labor Relations Board has ruled. Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., 358 NLRB 65 (June 25, 2012).

The NLRB Wants Your Employees to Know About "Strength in Numbers"

In a continuation of its growing trend of seeking to enforce the rights of all workers, including those in union-free workforces, the National Labor Relations Board has added a page to its website dedicated to promoting protections of the National Labor Relations Act that apply to non-union and unionized employees alike. The stated target audience for this educational webpage is all American workers - your employees.

NLRB Continues Focus on Universities, Will Revisit Graduate Students’ Right to Organize

In what appears to be a continuing effort to revisit key labor decisions involving private colleges and universities, the National Labor Relations Board agreed to hear companion cases involving the rights of graduate students to join and form unions. This announcement comes on the heels of the Board’s invitation for interested parties to file amicus briefs addressing whether the NLRB should overturn its longstanding Yeshiva University case, which held that professors at private Universities are barred from unionizing, which we previously reported.

Appellate Court Credits Employer's Challenge of Mock Card Check Ceremony During Union Campaign

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 Threat to Private Colleges and Universities, NLRB Invites Comments on Faculty Unionization

Last week, the Democratic majority of the National Labor Relations Board invited interested parties to file amicus briefs addressing whether faculty members at private higher education institutions are eligible to unionize under the National Labor Relations Act (NLRA). Courts and the Board itself have long considered this issue resolved by a 1980 Supreme Court decision, NLRB v. Yeshiva University, which essentially barred the formation of full-time faculty unions at private institutions because their role in the shared governance of their institutions renders them “managers.” The Board’s recent invitation suggests that it plans to reconsider that position and may establish new criteria for applying the Yeshiva decision, paving the way for full-time faculty unions at private colleges and universities.

Second Circuit Court of Appeals Upholds Starbucks’ “One Union Button” Policy

The National Labor Relations Board (NLRB) has taken some high profile hits in the federal courts in the past few weeks. As we reported recently, the United States Court of Appeals for the District of Columbia Circuit put the NLRB’s notice posting rule on hold. Earlier this week, a federal judge also halted, for now, the NLRB’s “quickie election” rule. Late last week, the NLRB suffered another defeat when the United States Court of Appeals for the Second Circuit refused to enforce an NLRB decision that found Starbucks had violated the National Labor Relations Act (NLRA) by prohibiting its employees from wearing more than one pro-union button on their uniforms.

Unions Poised to Exploit Changes in NLRB Rules

After winning 73% of elections in healthcare units in 2011, unions seeking to organize more healthcare workers are preparing to exploit opportunities arising from significant new rule changes and recent decisions by the National Labor Relations Board (NLRB). Hospitals, nursing homes, home health agencies, clinics and other healthcare employers who want to preserve their union-free status must therefore be prepared for a significant uptick in activity.

NLRB IMPLEMENTS NEW QUICKIE ELECTION RULES

We discussed the National Labor Relations Board's new election rules in our December 7, 2011 Compliance Matters. These sweeping rule changes, which some in the business community have dubbed the "ambush election" rules, have the effect of substantially shortening the timeframe within which NLRB secret ballot elections are conducted. A natural by-product of the new rules is that employers will now have considerably less time to combat the union's organizing effort after the union initiates the NLRB secret ballot election process.

May Day? A Lack of A Call?

Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.

Labor Is Ready for "Ambush Elections" -- Are You?

Today, April 30, 2012, the National Labor Relations Board (NLRB) implements new rules that will dramatically speed up the union election process from petition to election and reduce an employer's opportunity to raise challenges to the process. Pro-business groups have given these rules the apt name, "Ambush Elections," and view the changes as an Obama administration payoff for the support of Big Labor. There is no question that the changes will tilt the playing field in the unions' favor and make it more difficult than ever for employers to remain union-free.

Reading the Writing on the Cyber-Wall

The chief lawyer for the National Labor Relations Board (NLRB) knows that guidance on how to craft a lawful social media policy is weak at best. He also knows guidelines for when to discipline employees for improper Internet comments is equally obscure. In January, the general counsel issued his second paper summarizing the NLRB’s decisions on this point. Some general guidelines are emerging, but more questions than answers remain.

NLRB's General Counsel Issues New Guidance for "R" Cases

The NLRB revised its procedures for handling "representation" cases - the NLRB proceedings that relate to elections.

D.C. Circuit Court Enjoins Enforcement of NLRB Notice Posting Rule

On April 17, 2012, the U.S. Court of Appeals for the District of Columbia issued an injunction preventing the National Labor Relations Board ("NLRB") from enforcing its employee notice posting rule, which had been scheduled to become enforceable on April 30, 2012. See Nat'l Ass'n of Mfrs. v. NLRB, Case No. 12-5068 (D.C. Cir. April 17, 2012). In issuing the injunction, the Circuit Court noted conflicting lower court decisions and held that "[t]he uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits." This ruling means that employers are not required to post an employee rights notice by April 30, 2012 informing employees of their rights to, among other things, organize into unions, engage in collective bargaining, discuss wages, benefits, and working conditions or to refrain from any of these activities.

NLRB Takes Another Hit: D.C. Circuit Puts "Poster Rule" On Hold

The National Labor Relations Board got more bad news yesterday, when the U.S. Court of Appeals for the District of Columbia Circuit enjoined enforcement of the NLRB's "poster rule." The court's action came only a few days after a federal court in South Carolina struck down the rule. A federal district court in the District of Columbia had held earlier that the NLRB had the authority to issue the rule but had struck down key enforcement provisions.

NLRB Posting Requirement is on Hold

As we have previously reported, the National Labor Relations Board (NLRB) issued a rule requiring most private sector employers to display a poster giving employees notice of their rights under the National Labor Relations Act. The controversial rule’s effective date was to be April 30, 2012. Its status has been uncertain as the legality of the rule was challenged in federal court proceedings.

Court Strikes Down NLRB Poster Requirement

A federal judge in Charleston, South Carolina, has struck down the requirement of the National Labor Relations Board that employers post an employee rights poster as of April 30, 2012. The decision comes on the heels of a decision from another judge, this one in the District of Columbia, who ruled that the requirement was lawful but that certain enforcement mechanisms related to the posting requirement were unlawful. Employers are thus currently left with two different and conflicting interpretations of the NLRB's authority to make and enforce its poster rule.

NLRB Poster Takes Another Hit

The D.C. Circuit Court of Appeals enjoined the NLRB's implementation of the poster in an order here.

D.C. Court of Appeals Blocks Notice Posting Rule Pending Appeal; April 30 Date on Hold

Employers across the country can breathe a little easier today, as an appellate court has put the National Labor Relations Board’s notice posting rule on hold. It will not take effect on April 30.

Implementation of NLRB Workers’ Rights Posting Rule Delayed by Federal Appeals Court

The National Labor Relations Board’s rule that requires all employers covered by the National Labor Relations Act to post a notice informing workers of their rights under the Act will not go into effect on April 30th after all. An emergency injunction was granted by the U.S. Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. NLRB, No. 12-5068, on April 17. The Court also ordered expedited briefing and oral argument in September 2012. This means that the rule will not go into operation, if at all, until the fall.

U.S. Court of Appeals for the D.C. Circuit Enjoins NLRB From Enforcing Notice Posting Rule

Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012.

Friday The 13th An Unlucky Day For The NLRB

For months now, the business community has been bracing for the implementation of two key pro-labor initiatives on April 30, courtesy of the National Labor Relations Board: 1) an expedited election rule designed to cut the period between petition and election in half; and 2) a first-ever mandatory-posting requirement that would educate employees as to their representation rights, while laying the groundwork for unfair labor practice charges and extended limitations periods against those employers who fail to comply. The first initiative is proceeding on course, despite ongoing challenges that will ultimately be played out before the courts.

NLRB Workers' Rights Posting Requirement is Unlawful, Federal Judge in SC Holds

The National Labor Relations Board does not have the authority to require that all employers covered by the National Labor Relations Act conspicuously post a notice informing employees of their right to organize, providing contact information for the NLRB, and conveying information about enforcement procedures, a federal district court judge in South Carolina has ruled in Chamber of Commerce v. NLRB, No. 11-cv-2516 (D.S.C. Apr. 13, 2012). Granting summary judgment to the Chamber of Commerce of the United States and the South Carolina Chamber of Commerce, Chief Judge David C. Norton found the Board, in promulgating its final rule, exceeded its authority, in violation of the Administrative Procedure Act.

South Carolina Federal Court Finds NLRB Posting Rule Unlawful

A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees.

Federal District Court Strikes Down NLRB's Posting Rule

On April 13, 2012, a federal district court in South Carolina invalidated the National Labor Relations Board's (NLRB) notice posting rule. Chamber of Commerce of the United States v. NLRB, No. 2:11-cv-02516-DCN, U.S. District Court for the District of South Carolina (April 13, 2012).

Are You Ready to Display Your NLRB Poster?

A recent court decision upheld the NLRB’s authority to require the poster and denied a challenge on free-speech grounds, but it was not a total victory for the agency.

Federal Judge Rejects Request for Stay In Implementation of Union Rights Posting Requirements

A federal judge has ruled that implementation of a rule, requiring most private sector employers to post notice of employee union rights, will not be stayed pending an appeal of the court ruling allowing it to proceed.

District Court Refuses to Block NLRB Notice Posting Rule During Appeal; April 30 Date Still Applies

As we noted in an alert last week, the District Court for the District of Columbia issued its final order in National Association of Manufacturers v. NLRB on the challenge by the National Association of Manufacturers (NAM) and National Federation of Independent Business (NFIB) to the National Labor Relations Board’s notice posting rule. The court upheld the legality of the notice posting rule itself and, earlier this week, the court declined to block enforcement of the rule while NAM and NFIB appeal the decision. Accordingly, employers still face an April 30, 2012, notice posting deadline, barring another successful court or legislative challenge.

FEDERAL COURT OK’S NLRB NOTICE POSTING REQUIREMENT

In our September 15, 2011 issue of Compliance Matters, we wrote about the court actions filed by business groups to block implementation of the NLRB's controversial notice posting rule.

Court Decision on NLRB Posting Requirement Isn't Much of a "Win" for Employers

Last week's decision by a federal judge on the "posting rule"of the National Labor Relations Board was not a total loss for employers, but it was hardly a resounding victory.

Federal Court Upholds NLRB Posting Requirement

In January 2011, the National Labor Relations Board (NLRB) promulgated a rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The rule required that the notice be posted in a "conspicuous place" and provided for penalties for employers who failed to comply. If the NLRB determined that an employer had failed to comply, it could toll the statute of limitations for an employee who files an unfair labor practice (ULP) charge for any alleged conduct by the employer--not only for conduct relating to the failure to post the notice. A failure to post, alone, also would constitute an ULP.

What the NLRB Posting Ruling Means for Employers

A federal judge upheld the NLRB posting rule but rejected two of its rather onerous penalties.

Federal Court Partially Invalidates NLRB Notice Posting Rule, Rejects First Judicial Attempt to Contest Board Recess Appointments

The U.S. District Court for the District of Columbia issued a ruling on March 2, 2012 that strikes down part of the National Labor Relations Board's notice posting rule, but declines to address whether the three recess appointments to the Board are valid.

Court Invalidates Sections of NLRB's Recent Notice-Posting Rule

Today, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated key provisions of the National Labor Relations Board's "Notification of Employee Rights" rule, under which all covered employers would have been required after April 30th of this year to post an 11" x 17" poster, or else to face possible legal consequences. While she left the actual posting requirement intact, she ruled that the proposed penalties attached to the Board's rule were unlawful under the National Labor Relations Act (NLRA).

Judge Finds NLRB Workers’ Rights Posting Requirement Lawful, But Strikes ULP and Tolling Provisions

The National Labor Relations Board has the authority to require that all employers covered by the National Labor Relations Act conspicuously post a notice that informs employees of their right to organize, provides contact information for the NLRB, and provides information concerning basic enforcement procedures, a federal district court judge has ruled in National Association of Manufacturers v. NLRB, No. 11-1629 (D.D.C. Mar. 2, 2012). Judge Amy Berman Jackson, however, held that the NLRB exceeded its authority by promulgating provisions that permit the Board to deem failure to post an unfair labor practice and to toll the statute of limitations for claims brought by employees against employers who failed to post the notice.

Notice Posting Decision Disappoints Employers

On March 2, 2012, a federal trial judge in the District of Columbia issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. The court held that the NLRB did not exceed its statutory authority by requiring employers to post its "Notification of Employee Rights under the National Labor Relations Act." In language that seems at first favorable to employers, the court ruled that a failure to post is not automatically an unfair labor practice and does not automatically toll the statute of limitations in unfair labor practice actions. A closer reading, however, reveals that the court opened the door for the NLRB to find, on a case-by-case basis, violations and tolling for failure to post, thus allowing the Board to accomplish by decision what it cannot do by rulemaking.

NLRB's power to impose penalties for employer's failure to post "Employee Rights Notice" is clarified by the D.C. Circuit.

On March 2, 2012, a federal trial judge in the D.C. Circuit Court of Appeals issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. National Association of Manufacturers v. NLRB, No. 11-1629 (ABJ), U.S. District Court for the District of Columbia (March 2, 2012).

District Court Invalidates Portion of NLRB Posting Rule

Today a federal district court judge partially invalidated the National Labor Relations Board’s (NLRB) rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA).

Bill Would Prevent Excelsior List Rulemaking

As a preemptive strike against further development of a National Labor Relations Board representation election rule, Rep. Sandy Adams (R-FL) has introduced a bill that would prohibit the Board from requiring employers to provide to the union or Board employee telephone numbers or email addresses. The Keeping Employees' Emails and Phones (KEEP) Secure Act (H.R. 3991) (pdf) would add the following provision to the end of Section 9(c) of the National Labor Relations Act: “In no circumstances shall the Board require an employer to provide to the Board or to a labor organization the telephone number or email address of any employee.’’

University of Illinois Medical Center Nurses Ratify Contract with Staffing Language and Bonus Program

Nurses at the University of Illinois Medical Center (the “Medical Center”) overwhelmingly voted to ratify a new three-year contract covering more than 1,000 nurses represented by the Illinois Nurses Association (the “Union”). The contract includes enhanced staffing language, a bonus program and wage increases of up to 17.85% over the three-year contract term.

NLRB Proposed Rules Will Make It Easier for Unions to Organize Companies

On November 30, 2011, the National Labor Relations Board (the NLRB or Board) approved a resolution to adopt new rules affecting the processing of petitions for elections to determine whether employees want to become unionized. The Board currently is drafting the actual language of the proposed new rules.

Further update on the NLRB's "Employee Rights Notice" - another extension of the posting deadline.

As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

NLRB POSTPONES (AGAIN) ITS CONTROVERSIAL NOTICE POSTING DEADLINE

The National Labor Relations Board has postponed to April 30, 2012 the implementation date of its rule requiring most private sector employers to post a notice advising employees of their rights to unionize the workforce.

NLRB Adopts Controversial Amendments to Election Case Procedures, Postpones Posting Requirement

After months of deliberation and comment, the National Labor Relations Board (the "NLRB" or the "Board") has adopted a final rule amending its election case procedures. The amendments were drawn from a more comprehensive (and controversial) proposal put forward by the NLRB in June. The new rule will take effect on April 30, 2012.

NLRB Poster Requirement Delayed Until April 30, 2012

As we notified our clients several months ago, the NLRB recently issued a new notice-posting requirement, mandating that employers post an oversized (11" x 17") Notice of Employee Rights. See our August 25 Legal Alert. Because of the pressure of legal actions challenging the new rule, the implementation date was first pushed back from November 9 to January 31, which we noted in an updated Legal Alert on October 6.

NLRB Postpones Notice Posting Effective Date to April 30, 2012 December 27, 2011

On December 23, the National Labor Relations Board announced that it was postponing the effective date of its rule requiring covered employers to post a notice informing employees of their rights under the National Labor Relations Act. You can read the NLRB's press release here. The notice posting requirement was scheduled to take effect on January 31st, but has now been pushed back to April 30, 2012.

Pro-Union Rail and Air Transport Voting Rule Upheld

The National Mediation Board’s new union election rule making it easier for unions in the rail and air transport industries to organize workers does not violate federal labor law, the D.C. Circuit Court of Appeals has held in a 2-1 decision. Air Transport Association of America, Inc. v. National Mediation Board, et al., No. 10-5253 (D.C. Cir. Dec. 16, 2011). The decision overturns 75 years of precedent and is subject to appeal.

NLRB Delays Requirement for Employers to Post Pro-Union Notice

In August, the National Labor Relations Board (NLRB) issued regulations requiring virtually all employers to post a large notice to employees informing them of rights under the National Labor Relations Act (NLRA), particularly their right to unionize. In December, the NLRB postponed the effective date until April 30th, 2012.

Judge Needs More Time, NLRB Posting Rule Postponed to April 30, 2012

The National Labor Relations Board has announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on January 31st. Now, the rule will be effective on April 30, 2012. (For more information about the new rule, see our article, New Posting Required: Labor Board Rule on Notification of Employee Rights under Labor Act.)

NLRB Delays Implementation Date of Notice Posting Rule until April 30, 2012

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

NLRB Extends Employee Rights Posting Deadline To April 30, 2012

Remember our recent posts about the National Labor Relations Board’s new “employee rights” posting requirement? If you don’t, I will remind you, since it is the day before a long holiday weekend and you all deserve a break! The rule mandated that all employers post an 11-by-7 notice advising employees of their rights under the National Labor Relations Act (“NLRA”.)

DC Judge Recommends Postponement of NLRB Notice Posting Rule

During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance.

IS THERE A UNION IN YOUR COMPANY’S FUTURE?

Big changes are afoot in Washington that could mean your business will be much more susceptible to becoming unionized. Here is what's happening and what it means.

Agencies Issue Final Rule Disallowing Federal Contractor Reimbursement for Persuader Activities

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.

NLRB Posting Delayed and Challenged

As we previously reported, the National Labor Relations Board (NLRB or Board) has promulgated a new regulation requiring virtually all private sector employers to post a notice informing their employees of rights under the National Labor Relations Act (NLRA). Initially, the regulation was to become effective on November 14, 2011. However, purportedly for “further education and outreach,” the NLRB has delayed the effective date until January 31, 2012. It is unclear why the Board believes more education and outreach is needed. The regulation was initially proposed in the spring, six months prior to its initial effective date.

House Committee Hearing Focuses on Workforce Democracy and Fairness Act, Recent NLRB Actions

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.

NLRB Delays Posting Deadline Requirement

The National Labor Relations Board (NLRB) has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

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 undue 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.

Breaking News: NLRB Posting Rule Postponed

The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012. (For more information about the new rule, see our article, New Posting Required: Labor Board Rule on Notification of Employee Rights under Labor Act.)

NLRB Extends Employee Rights Notice Posting Rule Implementation Date

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

NLRB Delays Effective Date of Employee Rights Notice

On October 5, 2011, the National Labor Relations Board (NLRB) issued a press release announcing its decision to postpone the implementation date for the new NLRA employee rights notice. According to the NLRB, the initial effective date of November 14, 2011 has now been pushed back to January 31, 2012 to allow for enhanced education and outreach to employers.

Amidst Controversy NLRB Postpones Effective Date of Employee Rights Posting Requirement.

The fight over the controversial “Employee Rights” posting requirement has begun in earnest. The National Labor Relations Board announced yesterday that the effective date for the “Employee Rights” posting requirement has been delayed until January 31, 2012. The NLRB cited the need for “enhanced” education and outreach as the reason for the delayed implementation. I found interesting that the press release also mentions that NLRB member Brian Hayes dissented to the promulgation of the rule and agreed with the delay of the effective date, so I checked out his dissenting opinion. It is worth a read.

The Love-Hate Relationship of Labor Unions and Social Media

Have labor unions outlived their usefulness? Yes, said nearly half of the Americans polled, according to a recent Rasmussen survey. With only 48% of U.S. workers believing that unions still serve a worthwhile purpose, there is plenty of reasons for the labor movement to market their message. And social media has been a useful tool for doing so. For example, see this post about the 14 Ways Unions Are Using Twitter and this AFL-CIO post from 2009 for examples of Social Media Use by Unions for some insight about labor’s efforts in the online space.

NLRB Makes New Poster Available Amid Legal and Legislative Challenges to Rule Requiring Its 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. This past week, the NLRB published copies of its new poster. A copy is available from the NLRB website. Employers have the option of downloading a single 11” x 17” poster, or two 8.5” x 11” posters. Copies are also available at the Board’s regional offices. The final rule requires employers to begin displaying these posters by November 14, 2011.

NLRB Requires Employers To Post Unionization Rights Notices - FAQs

As a follow up to our previous eLABORate, below you will find frequently asked questions related to the final rule published by the National Labor Relations Board on August 30, 2011, that will require most private-sector employers in the country to notify employees of their rights under the National Labor Relations Act. The 11-by-17 inch notice will need to be posted in a conspicuous place no later than November 14, 2011.

NLRB Makes New Poster Available Amid Legal and Legislative Challenges to Rule Requiring Its 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. This past week, the NLRB published copies of its new poster. A copy is available from the NLRB website. Employers have the option of downloading a single 11” x 17” poster, or two 8.5” x 11” posters. Copies are also available at the Board’s regional offices. The final rule requires employers to begin displaying these posters by November 14, 2011.

TRADE GROUP FILES SUIT TO ENJOIN NLRB POSTING REGULATION

We recently reported that the National Labor Relations Board published a Final Rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their organizing rights. The Rule was to become effective November 14, 2011.

New Notification of Employee Rights Posting Requirement Effective November 14

The National Labor Relations Board (NLRB) requires employers post a notice informing employees of their rights under the National Labor Relations Act (NLRA), including the right to organize and form a union, beginning November 14, 2011. The notice also provides contact information for the NLRB.

NLRB Releases Employee Rights Poster Under New Rule

The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act.

Download Your NLRB Poster on Employee Rights Today!

As recently reported by our colleague, Karen Schanfield, in her article, Federal Agencies Focus on Non-Union Employers, most private sector employers are subject to the new National Labor Relations Act posting requirement. This is effective November 14, 2011!

New Federal Labor Poster Mandated by NLRB; Business Group Sues To Stop It

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. Employers must comply with this new mandate by November 14, 2011.

Federal Agencies Focus on Non-Union Employers

Many non-union employers wrongly believe that the National Labor Relations Act (NLRA) does not apply to their workplaces. However, recent activity by the National Labor Relations Board (NLRB) underscores its interest in non-union workplaces. Together with the Department of Labor, the NLRB continues to seek ways to protect employees’ rights and lower barriers to union organizing.

Labor Day, A Day After - Should We Put This To A Vote?

Any thoughts on how the following legislative finding might fare in today's Congress?

New NLRB Rule Requires Almost Every Employer To Post A Notice Advising Employees How To Form A Labor Union and File Charges Against The Company

Union membership nationally is at an all-time low of just 6.9% of private sector employees. With big labor one of President Obama's largest supporters, it's no surprise that Mr. Obama's appointees to the National Labor Relations Board (NLRB) have begun significantly altering the law to make it easier for unions to organize.

Helping Unions Organize, NLRB Reinstates Two Pro-Union Decertification Rules

Reversing decisions it issued in 2002 and 2007, the National Labor Relations Board has decided in separate cases that the union-employer relationship must be protected from decertification after a change of ownership at a unionized company and after an employer has voluntarily granted recognition to a union. These decisions were issued on the eve of former Chairman Wilma Liebman's departure from the Board.

NLRB Hands Down Union-Friendly Decisions

As expected, the end of Chairman Wilma Liebman's term at the National Labor Relations Board (NLRB) did not end without an onslaught of radical, precedent-reversing decisions. On August 30, the Board published three very significant 3-1 decisions signed by Liebman in the closing hours of her term.

NLRB Overturns Key Bush-Era Decisions, Boosts Union Card Check Campaigns

As we predicted in September 2010, with the Employee Free Choice Act stalled in Congress, a majority of the National Labor Relations Board (the “Board”) has taken the opportunity to overturn two key employer-friendly decisions from the Bush-era Board, boosting the prospects for union card check campaigns.

Board Gives Special Treatment To Union Organizing: Unions may organize employers piecemeal by proliferating small units

In another thinly-veiled effort to open the floodgates to union victories in representation elections, the National Labor Relations Board's three-member Democrat majority has overruled a long-standing standard for determining bargaining unit appropriateness in the non-acute health care industry. In Specialty Healthcare and Rehabilitation of Mobile, the majority of the Board ruled that a petitioned-for unit comprised solely of Certified Nursing Assistants was appropriate where the employees shared a "community of interest." Although the Board has never previously approved a CNA-only unit, it has now found the job-based unit classification to be presumptively appropriate. It also held that, in order to overcome the presumption, a challenging party would bear the burden of proving that excluded employees shared an "overwhelming community of interest" with the employees in the petitioned-for unit. This constitutes a significant – and far-reaching – departure from the established law.

11 Employer FAQs (No. 6): We don't have a union. Do I still have to display that new NLRB poster?

Maybe. If you are covered under the National Labor Relations Act, then you have to display the new poster, which explains employees' right to join a union and engage in other activity protected by the NLRA. Unless you are a federal contractor, in which case, you don't.

A Parting Gift From the Liebman Board: Employers Must Post Notice of Organizing Rights Starting November 14

As a parting "gift" for employers during Wilma Liebman's last days as Chair, the National Labor Relations Board announced its final rule on Notification of Employee Rights under the National Labor Relations Act. The rule passed the Board by a 3-1 vote, with Member Brian Hayes dissenting. The rule will take effect on November 14, 2011, 75 days from the date of its publication in the Federal Register.

NLRB Requires Employers to Post Pro-Union Notice: Employment Law Update

On August 25, 2011, the National Labor Relations Board (NLRB) issued regulations requiring virtually all employers to post a large notice to employees informing them of rights under the National Labor Relations Act (NLRA), particularly their right to unionize. Employers must post the notice beginning November 14, 2011.

NLRB's Rescue Plan for Unions - Part One

Under a new rule published by the National Labor Relations Board (NLRB or Board), most private sector employers will be required to post a workplace notice of employee rights under the National Labor Relations Act (NLRA) starting November 14, 2011. In essence, the notice informs employees that they have the right to form and join unions, bargain collectively with their employers, and to engage in other protected concerted activities, or to refrain from engaging in any of those activities. Specific rights are outlined, as well as prohibited conduct by employers and unions.

New Posting Required: Labor Board Rule on Notification of Employee Rights under Labor Act

The National Labor Relations Board has issued its final rule on “Notification of Employee Rights under the National Labor Relations Act.” The August 25, 2011, regulation, passed by a 3-1 vote of the Board, will have a significant impact on union-free and partially unionized employers.

NLRB rule requires employers to post notice regarding employee rights to unionize.

On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.

New Rule Means New Posting for Nearly All Employers

Workplace bulletin boards will be a bit more crowded this Fall, thanks to a new rule issued by the National Labor Relations Board (NLRB). The new rule, which becomes effective on November 14, 2011, will require most employers to post a notice detailing employee rights under the National Labor Relations Act.

National Labor Relations Board Now Requires Posting Of Employee Rights

n August 25, 2011, over the dissent of Member Brian Hayes, the National Labor Relations Board issued a final rule addressing "Notification of Employee Rights under the National Labor Relations Act." Effective 75 days following the August 26, 2011 scheduled publication in the Federal Register, which would be November 9, or November 14 (per the NLRB's inconsistent press release), every employer covered by the National Labor Relations Act will be required to post the prescribed 11x17 inch notice.

NLRB Issues Final Rule Requiring Employers to Notify Employees of Their Rights Under the NLRA

In December 2010, Franczek Radelet notified employers that the National Labor Relations Board (NLRB) had announced a proposed rule which would require employers to post a notice of employee rights under the NLRA. On August 25, 2011, the Board announced that a final rule regarding this posting requirement will go into effect for all employers subject to the Board’s jurisdiction on November 14, 2011.

Final Rule, Finally Issued, on Employee Rights Notice Posting

On August 25, the National Labor Relations Board (NLRB) issued a press release announcing its final rule on Notification of Employee Rights under the National Labor Relations Act (NLRA). The proposed rule had been pending since December of last year.

Groups Call Labor Board’s Proposal to Rush Union Elections “Unnecessary”

The National Labor Relations Board has issued a Notice of Proposed Rulemaking (NPRM) that would drastically expedite the union election process, shrink employers’ opportunities to affect the composition of the voting employee-unit, and reduce an employer’s ability to communicate lawfully with prospective voters so that employees can make a fully informed choice in any election.

Protecting Jobs From Government Interference Act (HR 2587)

Introduced on July 19, 2011, the Protecting Jobs From Government Interference Act is moving uncharacteristically swiftly through the legislative process. Representative Tim Scott of South Carolina introduced the bill in response to the National Labor Relations Board's (NLRB) complaint against the Boeing Co. for its decision to place an assembly line at a non-union plant in South Carolina. The NLRB claims that Boeing's decision was illegal retaliation for prior strikes by unionized worker's at the Company's operations in Washington state. The bill would amend the National Labor Relations Act to deny the NLRB any power to: order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment; rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or employer who shall be engaged in production or other business operations; or require any employer to make an initial or additional investment at a particular plant, facility, or location. Supporters of the bill claim it would remove an impediment to job creation while opponents argue that it would hamper the NLRB's ability to protect workers from unfair labor practices and would eliminate the Board's authority to restore jobs when companies eliminate work to get rid of pro-union employees. Within just six days of its introduction, the bill was referred to the House Committee on Education and the Workforce where it was recommended, without a hearing and by a vote of 23-16, to be considered by the House as a whole. For guidance on these and other employment or labor law issues, contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.

Unions Continue Success In Organizing Healthcare Employees

In recent years, unions have continued to realize greater success in organizing healthcare employees than employees in other industries. Union win rates in the healthcare sector have been at or above 70%, generally about 10% above their win rates in other sectors. Additionally, more elections are taking place in the healthcare industry. The total jumped from 220 elections in 2009 to 305 elections in 2010.

Piling On! DOL Proposes Rule Changes That Will Impact Employers

By now you're aware of the NLRB's proposed rule changes aimed at speeding up elections to make it easier for unions to organize. (See our Legal Alert "Unions In Decline? Labor Board To The Rescue!" June 30, 2011).

NLRB Issues Key New York New York Decision

Finally, after over a decade of litigation, the National Labor Relations Board (NLRB) issued its decision in New York New York LLC, 356 NLRB No. 119 (March 25, 2011) on remand from the District of Columbia Circuit Court of Appeals. Based on the Board’s precedent-setting ruling, we could have waited a little longer.

Congressional Hearing on NLRB’s Proposal to Rush Union Elections

The United States House of Representatives Education and The Workforce Committee held a hearing on July 7 on the topic of “Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice.” Michael Lotito, a partner in the San Francisco office of Jackson Lewis LLP, was one of five witnesses to testify before the Committee. Mr. Lotito’s written testimony is available here.

Make Your Voice Heard on NLRB's Proposed New Rules to Aid Union Organizing

In 2008 and 2009, employers played a critical role in defeating the Employee Free Choice Act. Now, employers need to quickly step up again and voice their opposition to the National Labor Relations Board's recently proposed changes to the rules regarding the Board's election process. Comments from employers and other interested parties in response to the proposed rule changes must be submitted no later than August 22.

Unions In Decline? Labor Board To The Rescue!

The failure of the Employee Free Choice Act to become law does not mean that unions are giving up, or that their elected and appointed officials are throwing in the towel on their efforts to increase unions' ever-shrinking share of the American work force. Last week the National Labor Relations Board (NLRB) took a giant step in that direction.

NLRB Rules Union "Rat Displays" and "Bannering" at Secondary Employer Lawful

The National Labor Relations Board has held that a union’s display of a 16-foot tall, inflatable balloon rat and handing out flyers at a secondary employer’s worksite did not violate the National Labor Relations Act. Sheet Metal Workers Int’l Ass’n, Local 15, 356 NLRB No. 162 (5/26/11). This further expands the rights of employees and unions in conducting expressive activity that may be detrimental to employers. (See our article on the Board’s early decisions on this topic, A Sign of Changes to Come: NLRB's New Majority Rules Union "Bannering" Lawful.)

Micro unions could create big problems

Recent pro-union actions by the National Labor Relations Board (NLRB) are making it easier to unionize employees. One of the latest potential changes involves micro-unions, a possible outcome of Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, a case pending before the NLRB.

NLRB Proposes Rule that Would Require Posting of Notice Regarding Right to Organize

On December 22, 2010, the National Labor Relations Board ("NLRB"), an independent federal agency vested with the power to safeguard employees' rights to organize and to prevent and remedy unfair labor practices, published a proposed rule which, if enacted, would require every employer subject to the National Labor Relations Act ("NLRA") to post a notice informing employees of their rights under this federal labor law. The NLRA applies to most private-sector workplaces, whether or not employees are represented by a labor organization.

You've Got Rights: NLRB's Proposed Notice to Employees

Employers should be aware that the National Labor Relations Board (NLRB) has proposed a new regulation that would require employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The NLRB has provided a fact sheet that answers some basic questions about the proposed regulation. Under the Notice of Proposed Rulemaking, which was issued on December 22, 2010, employers would be required to post a notice that included information on employees’ rights under the NLRA, and conduct by employers and unions that is illegal under the NLRA.

Constitutional Showdown Threatened Over South Carolina's Secret Ballot Protection Amendment

In a January 13, 2011, letter to newly-elected Attorney General Alan Wilson, the National Labor Relations Board (NLRB) threatened to file suit against South Carolina if the General Assembly ratifies the recently passed constitutional amendment guaranteeing individuals the right to a secret ballot vote on the issue of union representation. The letter, written by Acting NLRB General Counsel Lafe Solomon, asserts that federal labor law preempts state law � including state constitutional provisions � and gives him the right to file suit in federal court to hold the conflicting state provision unconstitutional.

NLRB Proposed Workplace Notice Likely to Spark Uptick in Union Activity

Not satisfied, it seems, merely with issuing individual case decisions that favor organized labor, the National Labor Relations Board has proposed a rule that would require employers to notify employees of their rights under the National Labor Relations Act through a uniform workplace posting. The posting would be required for both unionized and non-unionized employers and would have to be posted physically and electronically, at least when electronic posting is a “customary means of communicating with employees.”

Jackson Lewis Submits Brief Urging NLRB to Limit Union Access to Employer Property.

Jackson Lewis LLP, on behalf of the Retail Litigation Center, Inc., has filed with the National Labor Relations Board a “friend-of-the-court” brief urging the Board to limit non-employee union agents’ right to access store property to communicate to shoppers the union’s disagreement with the way the retailer is operating. The brief asks the NLRB to limit such access only to cases where the employer has allowed like conduct by other individuals and groups, so that the union has been singled out for adverse treatment.

Under proposed NLRB rule, all employers must post a notice of employees' right to unionize and to strike.

The National Labor Relations Act (NLRA) is one of the few federal employment/labor laws which does not include a specific provision requiring employers to post a notice related to employee rights under that law.

NLRB Going Wild.

The National Labor Relations Board is proposing a regulation that requires all employers under the NLRB's jurisdiction - both union and non-union- to post a notice explaining to employees their rights under the National Labor Relations Act. That notice will include helpful information like how to file an unfair labor practice complaint, the right to collectively bargain and elect a union, etc. The entire contents of the notice is posted below. The proposed regulations currently require qualifying employers to post the notice on paper with the other millions of government posters, and also send the notice out by email or put it on a company intranet. Multiple languages, etc. too.

NLRB Activism Update: Acting GC Directs Remedies Initiative, NLRB Proposes Rights Notice

The National Labor Relations Board continues its push to change the national labor policy administratively with two moves – one by the agency’s Acting General Counsel and the other by the Board members themselves. NLRB Acting General Counsel Lafe Solomon, the Board’s chief prosecutor, has urged regional officials to seek “special remedies” in unfair labor practices (ULPs) complaints for alleged violations committed by employers during union organizing drives. Meanwhile, the NLRB is proposing a rule requiring employers in a mandatory posting to notify employees of their rights under the National Labor Relations Act (and how employers can violate them).

NLRB Examines The Electronic Workplace.

The National Labor Relations Board (NLRB) recently issued a decision finding that an employer must distribute remedial notices electronically when that is a customary means of communication with its employees. As a result, the NLRB modified its standard notice posting provision - which requires posting of remedial notices in all places where notices to employees are customarily posted - to expressly include electronic communications.

Labor Law Update for Employers Who Are Not Unionized: Stay Tuned – NLRB Scrutinizes Facebook Policies.

On November 2, 2010, the Hartford Regional Office of the National Labor Relations Board (NLRB) issued a Complaint against American Medical Response of Connecticut (AMR), an ambulance service, for discharging Dawnmarie Souza for posting comments on her Facebook page that were negative and critical of her supervisor. Because of the potential implications of this case, we assume that the NLRB’s General Counsel must have approved the issuance of the Complaint.

NLRB Holds Employers and Unions May Enter into Lawful Pre-Recognition Agreements

In a 2-1 decision, the National Labor Relations Board has held that Dana Corp. and the United Auto Workers lawfully entered into an agreement governing a framework for collective bargaining and providing that the employer would recognize the UAW as its employees’ bargaining representative at a previously unrepresented facility if the UAW established majority support through a card check. Dana Corp., 356 NLRB No. 49. The Board in its December 6, 2010, decision also ruled, however, that it would “leave for another day the adoption of a general standard for regulating pre-recognition negotiations between unions and employer[s].”

Going Over The Top At Disneyland: Sleazy Union Tactics In "The Happiest Place On Earth"

Disneyland is known as "The Happiest Place On Earth." But UNITE HERE Local 11, the Union that represents the park's 2,100 hotel employees, is not in a happy place. For close to three years now, it has been bargaining over a new labor contract. During that time, the union has staged protests and walk-outs, had its members engage in a week-long hunger strike and gone on a one-day quickie strike. But no matter what the union has done to force the issue, no new labor agreement has been reached.

SEIU Paints A Bull's Eye On Fast Food Industry.

It's common for fast food workers in Canada, Germany, France and Australia to be represented by a union. But in America less than 2% of fast food workers are unionized – and most of them work in stores located on college campuses, in hospitals or in government buildings where labor unions are commonplace. Indeed, until very recently, the conventional wisdom among union leadership was that employees working in freestanding fast food restaurants were simply too short-sighted, too transient, or too timid, to be viable targets for union organizing. Accordingly, even though it promises the possibility of hundreds of thousands of new union members, the fast food industry has gone largely ignored by unions. All of that may soon change.

UNITE-HERE Ups The Ante Against Hotels.

Hotels and other entities should expect unions to routinely use OSHA citations as an organizing tool and a way to harass hospitality employers. In a recent Hospitality Update, we described a May 12 Houston Chronicle article complaining about the allegedly high rate of ergonomic injuries suffered by hotel employees. [See "Multiple Embarrassing OSHA Citations: The Next Union Organizing Tactic?" by Howard Mavity. Hospitality Update, June, 2010.]

If You Build It...

It comes as no surprise that employers in the last several years have been forced to focus on survival in an extremely difficult environment. There have been sharply decreased (or nonexistent) profit margins, falling sales, reorganizations, reductions in force, retrenchment and reversion to the mean. Overall business conditions aren't really much better now than they were three years ago and nobody really knows when they will improve.

NLRB to Decide On Union Access to Employer Property

Signaling it may be ready to establish a broad right of union access to employer property for handbilling directed against retail employers and their contractors, the National Labor Relations Board has invited “all interested parties” to submit briefs addressing when an employer may lawfully deny access to a union that does not represent the retailer’s employees. This action came in a decision in which the Board reserved judgment on whether an employer violated the National Labor Relations Act by removing non-employee union handbillers from its private property, although it had permitted other groups and elected officials to solicit frequently inside and outside its retail premises over several years. Roundy’s Inc. and Milwaukee Bldg. & Constr. Trades Council, AFL-CIO, 356 NLRB No. 27 (Nov. 12, 2010). A formal notice and invitation for briefing followed. The decision on this question will likely have wide-ranging implications for both union and non-unionized employers.

NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC

The Acting General Counsel for the National Labor Relations Board has issued guidelines to the agency’s regional officials, recommending that they prepare to seek promptly federal court injunctions where the evidence obtained during an expedited Board investigation appears to support a discriminatory termination charge. According to Acting General Counsel Lafe Solomon, this would compel employers charged with discriminatory termination of union advocates and supporters during union organizing to offer the fired employees reinstatement pending litigation of the underlining unfair labor practice charge in Board administrative hearings.

EFCA, Schmefca: The Obama Board Won't Wait For Legislation To Change Labor Law

Even with the Employee Free Choice Act (EFCA) now seemingly DOA, major reform of labor law is not far off. Wilma Liebman and the three new Obama appointees, including Craig Becker, are now in the driver's seat at the National Labor Relations Board. Big Labor justifiably expects the Liebman/Becker-led Board to deliver on Obama's campaign promises and to revamp federal labor law in its favor.

NLRB Poised to Advance EFCA Through Reversal of Key Board Decisions

This week, the National Labor Relations Board (the Board) made two announcements, the results of which could further the administration’s EFCA agenda without the need to pass legislation. Most prominently, the Board will revisit its 2007 Dana decision through review of two sets of cases that question when a union’s support among employees can be challenged (Rite Aid Store #6473 / Lamons Gasket Co. and UGL-UNICCO Service Co. / Grocery Haulers Inc.). Dana has been widely cited as legal support for maintaining secret ballot elections in lieu of the union-supported card-check procedures in EFCA.

Hospitality Industry: "Hello. I'm From The Union And I'm Here To Help You."

This is a message to our clients who have union-free operations. We assume that you operate non-union for a reason, and that you work hard to ensure that you preserve and maintain your non-union status. In case you needed one, here is just one more reason that remaining non-union gives you an edge in managing your operation.

Unionization of Private Colleges’ And Universities’ Graduate Students (pdf).

Unionization of Private Colleges’ And Universities’ Graduate Students.

New Mandatory Posting for Government Contractors (pdf).

President Obama continues his support of big labor with a first of its kind mandatory employer posting requirement designed to advise employees how to form or affiliate with a labor union. If you are a federal contractor or subcontractor - or are thinking about becoming one – you will want to read about this important development.

Executive Order 13496 (Employee Posting Rule) Update.

New requirements under Executive Order 13496 could appear in federal contracts and subcontracts as early as this week. The final rule, published on May 21, becomes effective June 21, 2010. Fortunately or unfortunately, the Federal Acquisition Regulation Council (FAR Council) has not yet issued an implementing FAR that will require the employee notice to be posted.

DOL Requires Federal Contractors and Subcontractors to Post Notice Informing Employees of Their Rights to Join a Union and Engage in Concerted Activity.

Effective June 21, 2010, employers who conduct business with the federal government or who perform work essential to a federal contract now must post a notice informing their employees of their right to join a union and engage in concerted activity.

FEDERAL CONTRACTORS MUST POST NEW FEDERAL NOTICE OF UNIONIZATION RIGHTS.

President Obama continues his support of big labor with a first of its kind mandatory employer posting requirement designed to advise employees how to form or affiliate with a labor union. If you are a federal contractor or sub-contractor - or are thinking about becoming one - we urge you to read about this important development.

DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights.

The Department of Labor's Office of Labor Management Standards (OLMS) published a final rule on May 20, 2010, implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. This EO 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). In turn, covered contractors are 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.

Multiple Embarrassing OSHA Citations: The Next Union Organizing Tactic?

While many union organizers seem to have moved to D.C. to become lobbyists, UNITE/HERE, the SEIU, and other unions continue to aggressively campaign against hospitality employers. Campaigns are becoming even more nasty than in the past. Unions consciously harm the property's reputation and inflict costly wage-hour, discrimination, and OSHA costs that may weaken the employer's resolve.

DOL Issues Final Regulations Requiring Federal Contractors To Post "Labor Friendly" Notice.

The Department of Labor has issued Final Regulations implementing President Obama’s Executive Order 13496. The regulations impose two requirements on government contractors and subcontractors: (1) to post a specified notice of employees’ rights to join a union and engage in organizing activity; and (2) to include certain language in covered contracts and subcontracts. While the government calls the long-awaited Final Regulations “very, very balanced,” the required Employee Rights Notice is unquestionably “labor-friendly.” The new requirements go into effect on June 21, 2010.

New Information-Posting Requirement For Federal Contractors and Subcontractors.

Federal contractors and subcontractors are subject to a new posting requirement. Federal contractors and subcontractors (except for acquisition contracts worth less than $100,000 and subcontracts worth less than $10,000) have until June 21, 2010, to post a new notice telling their employees about their rights under the National Labor Relations Act (NLRA), the federal law that governs the relationships between private sector employers and unions. The posting describes the rights of employees to organize into unions and collectively bargain for a contract with their employer. It also describes union and employer conduct that is deemed to be unfair interference with employee rights, and tells employees to contact the National Labor Relations Board if they believe their rights have been violated.

Federal Contractors Must Post Employee Rights Poster and Include Contract Notice.

A final rule issued May 20, 2010, provides the poster federal contractors and sub-contractors are required to post to provide employees notice of their rights under the National Labor Relations Act. This rule implements President Obama's Executive Order 13496, signed January 30, 2009. The Order has two requirements for covered federal contractors and sub-contractors; (1) post with other employee notices, including electronically, the "Employee Rights under the National Labor Relations Act" poster and (2) include the language of the employee notice requirement.

Department of Labor Publishes Poster to be Used by Federal Government Contractors to Notify Employees of Their Rights Under the National Labor Relations Act and Issues Final Rule.

Federal Government Contractors are required to post a new poster notifying employees that the National Labor Relations Act ("NLRA"):

New Employee Notification Requirements for Federal Contractors and Subcontractors Issued Today.

Pursuant to a Department of Labor (DOL) Final Rule published on May 20 and going into effect on June 21, 2010, federal contractors and subcontractors subject to the National Labor Relations Act (NLRA) will be required to include certain language in their contracts and to conspicuously post notices of employee rights under federal labor laws. The Final Rule describes the content of the notice required to be posted by contractors and most subcontractors, and outlines the penalties that can be imposed for noncompliance. This Final Rule, published in today’s Federal Register, implements Executive Order 13496, signed by President Barack Obama in January of last year.

The Future of Unions: A Key Question.

BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read.

Union Membership Declines In 2009.

The union membership statistics for 2009 suggest that organized labor has lost ground over the past year. According to the Bureau of Labor Statistics' report on annual union membership, private sector unions lost 834,000 members in 2009, bringing membership down to 7.2 percent of the private sector workforce (compared to 7.6 percent in 2008). Overall union membership, however, held steady at 12.3 percent in 2009. This was largely due to public sector union membership, which rose slightly from 36.8 percent in 2008 to 37.4 percent last year.

Will There Be an End-Run Around the EFCA?

After months of moribundity, the Employee Free Choice Act (“EFCA”) is showing signs of life. Or at least alternative means of imposing some of the major changes included in EFCA, such as greatly decreasing the time of an election campaign and limiting employers’ ability to actively participate in union elections, are being considered. It all depends on the possible confirmation of Craig Becker, whose nomination to the NLRB has been stalled in the Senate but was recently voted out of committee on a party line vote.

Whatever Happened to the Employee Free Choice Act?

For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.

Union Avoidance + Improved Employee Relations = As Good As It Gets.

While our crystal ball is no better than anyone else's, change in our country's labor laws appears to be drawing ever closer. While EFCA as it was originally proposed with its elimination of secret-ballot elections is undergoing change, a lot of other tweaking has been going on lately in the Senate reflecting unions' desire to find some form of legislation which will pass and which will give them the stimulus they need to revitalize their efforts to halt the continuing loss of union jobs and members.

Who Needs EFCA? - Expect Big Labor Law "Reforms" From the NLRB.

For the past several years, the business community's attention has been focused almost exclusively on federal legislation inaccurately named the "Employee Free Choice Act" (EFCA). That legislation would radically overhaul labor-management relations by substituting "card check" (employees' signatures on union cards) in place of government-protected secret ballot union representation elections, and by compelling arbitration of first contracts written by federally-appointed arbitrators where the union and the employer fail to agree after 120 days of bargaining. EFCA also contains anti-employer penalties and fines of $20,000 per violation and triple back pay, as well as federal court injunctions.

Top Five Reasons You Can't Blame Employees For Joining A Union.

We all know that union membership has been on the decline for decades. But with a new administration in the White House, and Democrat majorities in the House and Senate, employers should expect significant labor law reforms and dramatically different enforcement strategies that will make it easier for labor unions to organize employees. In fact, hopeful labor leaders proclaim that the expected changes could add up to 1.5 million new members per year for the next 15 years.

Carroll College Case Proves No Free Pass For Unions...Yet.

With membership at its lowest point in over 60 years, unions are steadfastly proving they still know how to play politics. Organized labor has recently taken steps to reinforce its ranks through legislation, introducing significant reform efforts such as the Employee Free Choice Act (EFCA). The Act, in effect, would eliminate secret ballot elections from the provisions of the National Labor Relations Act (NLRA) related to union organizing, substitute card check verification instead, and make employer neutrality mandatory in the electoral process.

Senate Democrats pull back on Specter's card-check prediction.

Constangy partner Mel Haas is Vice Chairman of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you yesterday's communication from the "The Hill" so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.

New Employee Notice Rule Proposed for Federal Contractors and Subcontractors.

On August 3, 2009, the U.S. Department of Labor (DOL) issued a proposed rule to implement President Barack Obama’s recent Executive Order 13496 requiring federal contractors to inform employees of their rights under federal labor laws, including the National Labor Relations Act (NLRA). Executive Order 13496 requires covered contractors to include certain language in their contracts and to conspicuously post notices of employee rights under federal labor laws. The proposed rule describes the content of the required notice, which contractors and subcontractors must post, and the penalties that can be imposed for noncompliance.

CONGRESS DROPS CONTROVERSIAL CARD CHECK PROVISION FROM “EMPLOYEE FREE CHOICE ACT”.

As the union-friendly Employee Free Choice Act (EFCA) (S. 560 and H.R. 1409) makes its way through Congress, one of the most controversial provisions of the legislation has been withdrawn. That's the good news for employers.

Investor Letters Regarding EFCA.

Constangy partner Randy Loftis is a member of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you communication from the Chamber's Executive Director of Labor Law Policy so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.

Is There a Union in Your Future? Labor Law Reform II (pdf).

Though the ink is hardly dry on the economic stimulus plan, Congressional Democrats have turned their attention to their next big fight: easing the way for labor organizing at companies big and small. On March 10th, both houses of the United States Congress introduced identical versions of the socalled Employee Free Choice Act (EFCA) legislation (S. 560 and H.R. 1409). This legislation is designed to make it dramatically easier for a union to organize your employees.

A New Law Could Make Unionizing Your Employees Easy.

The Employee Free Choice Act (EFCA)—recently referred to by some commentators as the Employee Forced Choice Act—is proposed national legislation that would overturn nearly 60 years of traditional labor law by amending the National Labor Relations Act, in several unprecedented and extremely significant ways. In a nutshell, companies that are not currently unionized will have a substantially increased possibility of becoming organized.

EFCA Introduced In Congress.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced in the 111th Congress on March 10. The bills introduced in both the House of Representatives, H.R. 1409, and Senate, S. 560, are identical to last year's measure, which passed the House but stalled in the Senate due to a filibuster on the motion to debate the bill on the Senate Floor. This year's bills were introduced with fewer original cosponsors amid increasing concerns regarding the economic impact of "card check" and compulsory arbitration of first contracts.

Employee Free Choice Act in the 111th Congress: The Battle is Joined (pdf).

The grossly misnamed and highly controversial Employee Free Choice Act (“EFCA”) was introduced by Senators Ted Kennedy (D-MA) and Tom Harkin (D-IA), and Representative George Miller (D-CA) in the 111th Congress on March 10, 2009 (H.R. 1409, S. 560). The legislative fight over EFCA is a battle royale between business and organized labor and is a defining moment in the history of labor relations in the United States. The President of the U. S. Chamber of Commerce, Tom Donahue, in a major address in Washington last week, called this legislation “Armageddon” and a “game changer.” EFCA is clearly the most ambitious and transformative piece of labor legislation to come before Congress since the 1935 enactment of the National Labor Relations Act (“NLRA”) and would radically alter the balance of power between management and labor.

IS THERE A UNION IN YOUR FUTURE? CONGRESS INTRODUCES EMPLOYEE FREE CHOICE ACT.

Yesterday, both houses of the United States Congress introduced identical versions of the Employee Free Choice Act (EFCA) legislation (S. 560 and H.R. 1409). This legislation is designed to make it dramatically easier for a union to organize your employees.

One Step Closer to The Employee Free Choice Act.

The Employee Free Choice Act was introduced in both houses of Congress today. The bill would allow labor unions to bypass secret ballot representation elections that have been in place for 75 years in favor of a streamlined process known as "card check." It also contains binding arbitration provisions that would allow an outside arbitrator to dictate the terms of a first contract in the event that the parties cannot reach agreement within the first four months of negotiations, and it would impose substantially increased penalties against employers who commit unfair labor practices.

EFCA Introduced in Congress.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced on March 10 in the 111th Congress. The new bills introduced in both the House of Representatives and Senate are identical to last year’s bill, which passed the House but was stalled in the Senate by a filibuster on the motion to debate the bill on the Senate Floor.

EFCA Rumors.

Constangy partner Mel Haas is a member of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you last night's communication from the Chamber's Executive Director of Labor Law Policy so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.

New Employment Laws to Worry About: It's Not Just About Card Check Anymore.

Employers are rightfully concerned and even alarmed about what to expect from the new Congress and the Obama Administration. Democrats are firmly in control and owe much to organized labor and other constituencies that are not necessarily employer-friendly. So, what can healthcare expect in the new year and beyond?

Executive Order Could Effectively Prevent Federal Contractors From Opposing Union Organizing Efforts.

The new administration is moving swiftly to change the playing field between labor and management.

A FREE COUNTRY?

The inauguration of President-elect Barack Obama is just a few days away. Congress will assemble with solid Democratic majorities in each house. The new administration doubtless will breathe new life into bills that have languished in Congress during the past eight years.

Unions Claim Credit for Obama Win – and Expect Big Payback.

Immediately after the victory of labor-backed Senator Barack Obama, both the AFL-CIO and Change To Win federations praised the win as the beginning of a new era in workers’ rights. AFL-CIO President John Sweeney called the Obama victory in the presidential race and the Democratic majorities in the House and Senate a working families’ mandate for “broad-based economic change.”

UFCW Is “In” at Smithfield, Shortly After RICO Suit Settled.

On December 12, 2008, the NLRB announced that the United Food and Commercial Workers Union won an election at Smithfield Foods’ pork processing plant in Tar Heel, North Carolina. The UFCW has been seeking to represent the Tar Heel workers for more than 15 years.

What a Racket!

The New York Court of Appeals, New York’s highest court, recently ruled that Local 32BJ of the Service Employees International Union was properly enjoined from announcing its presence outside the Empire State Building with a “banging racket” of drumming on metal pots and tin cans.

Video - "Employment Law: How Will the 2008 Election Impact You and Your Business?"

Employers can expect that efforts will be made to significantly change employment and labor laws and regulations over the next several months. Nexsen Pruet Employment and Labor Law attorneys David Dubberly, William Floyd, Cherie Blackburn and Mike Brittingham provide a briefing to help clients prepare for the changes.

2008 Elections Cause Concern Among Employers.

In a historic and hard-fought election, Senator Barack Obama was elected the 44th President of the United States earlier this month. President-elect Obama will be the first African-American president in the country's history.

The EFCA Problem For Retailers.

Gallons of ink have been spilled by lawyers and journalists concerning the Employee Free Choice Act (EFCA). But this law is likely to have a particular effect on retailers, and retailers – more so than other employers – should start planning for the worst now.

The Likely Rise Of Unionization In The New Political Environment.

The idea of revamping the National Labor Relations Act in favor of unions has been floating around for some time now, but legislation has stalled. No more. At the dawn of a new political regime, employers are bracing for monumental change.

Employee Free Choice Act: What It Means and Why Non-unionized Employers Should Care.

The Employee Free Choice Act (EFCA) is proposed national legislation that would overturn nearly 60 years of labor law by amending the National Labor Relations Act (Act) in several unprecedented ways. The U.S. House of Representatives passed the EFCA last March by a significant margin (241-185). While 51 Senators supported the bill, it stalled in the Senate because of a threatened filibuster. Most commentators expect that it will ultimately pass the new Senate and be signed by President Obama in some form.

The EFCA, Organized Labor's Legislative Agenda and Its Impact on Your Business.

Organized labor's membership in the private sector has plummeted below 8 % – an all time low. To address this problem, unions have turned to an aggressive legislative agenda designed to tilt the scales in their favor. Among the items on their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).

Employee Free Choice Act -- Overview and Preparation (pdf).

The recently concluded Presidential and Congressional elections have organized labor salivating over the likely passage of the so-called and grossly misnamed Employee Free Choice Act (“EFCA”). EFCA, which actually would eliminate “employee free choice” concerning unionization, is at the very top of organized labor’s very aggressive legislative agenda and enjoys the strong support of President-elect Barack Obama. You cannot underestimate how dramatically the enactment of this misguided and ham-handed legislation could change your workplace and jeopardize your business and the livelihoods of your employees. The proposed law is nothing short of a power grab by unions. At this point, EFCA is still only proposed legislation, and no one knows exactly what form it will take upon final passage. One thing is certain, however: with strong Democrat majorities in both the House and Senate, and a President who is eager to sign the legislation, EFCA is certain to become law in some form, and employers need to begin preparing for it now.

Unions Continue to Covet Healthcare Workers: Is Your Hospital Ready?

By now, most hospital and healthcare leaders recognize that their employees represent an increasingly inviting organizing target for unions such as the Service Employees' International Union (SEIU) and the California Nurses Association (CNA). If any question remains, it is "when," not "if" one or more unions will mount some sort of an offensive at your facility.

The EFCA: Organized Labor's Legislative Agenda and Its Impact on Your Business.

Organized labor's density in the private sector has plummeted below 8% – an all time low. To address this problem, unions are increasingly turning to an aggressive legislative agenda designed to tilt the scales in their favor. Among those items at the top of their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT).

The Return of Labor.

The election looms. No one can say with certainty what the results will be. The political scene may shift dramatically in a few months. But organized labor is as excited as a child on Christmas Eve. Conventional wisdom feeds this optimism.

Hospitality Labor Letter: Box Score (Spring 2008).

There have been 24 union petitions at hospitality employers, that we are aware of, filed since the beginning of 2008.

Prohibition on Union Buttons May Violate National Labor Relations Act.

The 9th U.S. Circuit Court of Appeals has overturned a decision by the National Labor Relations Board related to a hospital’s prohibition on union buttons. According to the Ninth Circuit, prohibiting the buttons violated nurse/employees’ rights under the National Labor Relations Act.

Unions Maintain Focus On Healthcare Employers.

While their overall membership rates continue to decline, unions remain focused on attracting and organizing new dues-paying members in the relatively untapped healthcare market. Maintaining a historic trend, union membership dropped again last year; it's now less than 9% of the private sector workforce, roughly 12.0% counting public employers.

Cute Titles for Bad Laws: A look at union-sponsored federal legislation.

Most of our readers have heard of the "Employee Free Choice Act" (EFCA). The bill passed the U.S. House of Representatives, but was subject to a Republican Party filibuster in the Senate. This union and Democratic Party-sponsored legislation would eliminate secret ballot elections regarding union representation in a workplace, and instead make such representation automatic and mandatory if more than 50% of employees in a bargaining unit signed union authorization cards.

Auto Dealership Update: Unions Push on Several Fronts.

Organized labor's efforts to unionize auto dealerships continued unabated during 2007. While these efforts will no doubt continue in 2008, federal legislative changes loom on the horizon which, if enacted, will significantly increase the number of successful unionization efforts. Regardless of whether these changes are implemented, dealerships should consider implementing an updated pre-campaign strategy designed to anticipate and adapt to labor's evolving unionization efforts.

California Nurses Association Launches New Wide-Ranging Mail Campaign.

Fresh from its "victory" in an election at Cypress Fairbanks Hospital in Houston, the California Nurses Association (CNA) has wasted no time in launching a wide-spread direct mail campaign that targets registered nurses in several states. The full color tri-fold campaign pieces, which have been arriving in nurses' homes during the past 10 days, include union authorization cards. At a minimum, nurses in Texas, Florida, North Carolina, South Carolina, Georgia, Kentucky and Illinois have received these mailers.

Houston Nurses Vote for Unionization.

It has been no secret that high-profile unions are devoting considerable resources to their attempts to organize employees in the healthcare industry. Bolstered by success in California, New York, Illinois and Florida, the California Nurses Association (CNA) and the Service Employees International Union (SEIU) have now set their sights on the vast, relatively untapped state of Texas.

Guidelines For Investigation of "Salting" Claims Issued.

On February 15, 2008, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued two guideline memoranda to Regional Directors, Officers-in-Charge, and Resident Officers, outlining the NLRB's rationale in two recent decisions, and providing guidance for analyzing, investigating, and pleading union "salting" claims in light of those decisions.

9th Circuit Upholds Casino's Right to Express Opinions on Unionization.

The rule of thumb for employers facing union campaigns dictates that managers may offer employees facts about unions, their opinions on unions in general, or their personal experiences in previous dealings with unions. The general limitation on this rule is that employers may not threaten employees, interrogate or spy on them, or promise benefits in exchange for opposing the union.

Labor Board Approves Restrictive E-mail Policies (pdf).

The NLRB just announced new guidelines for private sector employers.

Zounds! Tough Talk About Bargaining No Threat To Knights And Squires.

Employers who have been involved in union election campaigns know that it's important to educate employees on all aspects of unionism, in order to counter the union's often pie-in-the-sky promises of more money, better benefits, and a chicken in every pot.

Unions Target Healthcare Industry With New Organizing Tactics.

Organized labor has a new target in sight - the healthcare industry - and it has begun using creative ways to make an initial contact and to identify individuals who might be receptive to the union's message. Contacts have focused on social activism, legislative efforts, and improving the quality of patient care, although these issues may not be the union's true organizing objective.

SEIU Establishes New National Healthcare Union.

The Service Employees International Union (SEIU) recently announced the creation of a "new national healthcare union" called "SEIU Healthcare." This major initiative could have significant ramifications on union organizing in healthcare.

Construction Company's Discharge Of Union "Salt" Held Unlawful.

The federal appellate court with jurisdiction over South Carolina employers recently ruled against a nonunion employer who fired an employee for dishonesty after he started distributing union materials. According to the Fourth Circuit Court of Appeals, there was sufficient evidence that the employer, which did not thoroughly investigate the dishonesty allegation, was motivated by anti-union animus.

Congress Debating "Employee Free Choice Act" (pdf).

With the political shift in Congress, several important labor or employment laws may significantly change.

Union Forced Card Check Bill Passes House by Wide Margin... Next Step The U.S. Senate.

Today, the U.S. House of Representatives voted 241-185 to pass H.R. 800, the misnamed "Employee Free Choice Act (EFCA) of 2007." With its passage by the House, organized labor's efforts to overhaul the Nation's labor laws cleared its first legislative hurdle. The bill now goes to the U.S. Senate that will take up either the House-passed bill or a companion bill to be introduced by Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-MA).

Unions Urge Congress To Eliminate Secret-Ballot Elections (pdf).

It seems incredible that, in America of all places, arguments must be mustered to support the idea of a secret-ballot election. Yet that is exactly the situation in the current Congress. Rep. George Miller (D-CA), current chairman of the House Education and Labor Committee, has introduced the oddly-named “Employee Free Choice Act,” (EFCA) perhaps better known as the “card check” bill. Its purpose is to eliminate the right of employees to decide via secret ballot whether they wish to be represented by a labor union or not.

New Congressional Leadership Introduces Union Organizing Measure To Guarantee Union Contracts (pdf).

New Congressional Leadership Introduces Union Organizing Measure To Guarantee Union Contracts.

Unions Expect Help from New Congress (pdf).

Sieck guaranteed success in organizing, mandated contracts.