Articles Discussing General Labor Law Topics And The NLRA.

On August 26, 2013, in Waugh Chapel South, LLC v. UFCW (4th Cir. 2013), the U.S. Court of Appeals for the Fourth Circuit delivered a victory, in part, to employers and, in part, to labor. In its decision, the Fourth Circuit expanded the scope of activity subject to the secondary boycott proscriptions of the National Labor Relations Act (NLRA), but limited the type of organizations that are subject to those proscriptions.

During a hearing conducted by the House Subcommittee on Health, Employment, Labor, and Pensions, Littler Shareholder Stefan Marculewicz explained the role that worker centers, also referred to as union front organizations (UFOs), play in modern labor organizing. Such worker centers, Marculewicz testified, are typically non-profit organizations that “offer a variety of services to their members, including education, training, employment services and legal advice.” The problem with these rapidly growing organizations, however, is that they are:

The AFL-CIO convention ended yesterday, but not before some fireworks over the Affordable Care Act (ACA). Certain aspects of the healthcare law – particularly ACA’s impact on multi-employer healthcare plans – have caused a great deal of consternation for unions. The concern over the law’s effect on unionized employees appears to have come to a head during the final day of the convention, where after three days of closed-door meetings, delegates adopted a resolution outlining their apprehension about the healthcare law and making suggestions for change. Resolution 54 was submitted by the Building and Construction Trades Department, the International Union of Operating Engineers and the American Federation of Teachers. The Resolution states that “federal agencies administering the ACA have interpreted the Act in ways that are threatening the ability of workers to keep health care coverage through some collectively bargained, non-profit health care funds.”

On day three of the AFL-CIO annual convention, delegates adopted a number of resolutions that provide insight into the organization’s priorities for the coming year. As discussed in yesterday’s coverage of the event, the AFL-CIO adopted two resolutions – Resolution 5: A Broad, Inclusive and Effective Labor Movement and Resolution 16: Building Enduring Labor-Community Partnerships – that support a closer alliance with union front organizations (UFOs). Other noteworthy resolutions are as follows:

As expected, the second day of the annual AFL-CIO convention focused on ways to create and promote “new forms” of union membership that would appeal to younger workers and nonunion members. In his keynote address, AFL-CIO President Richard Trumka strongly supported aligning labor with non-labor groups. An integral part of this initiative is to promote membership with Working America, the AFL-CIO’s community affiliate designed to provide services to nonunion workers. According to the AFL-CIO, “Working America . . . is the fastest-growing organization for working people who don’t have a union on the job.”

The AFL-CIO kicked off its annual convention on Sunday with the expected amount of fanfare. As we have discussed in detail, the labor organization is in the process of reinventing itself in an effort to boost its declining membership.

Now that two federal appellate courts have invalidated the National Labor Relations Board’s rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act, the Board has developed a new way to disseminate this information. On August 30, 2013, the Board launched a mobile app that “provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”

In Community Options NY, Inc., 359 NLRB No. 165 (2013), the Board condoned the bribing of employees to vote against decertification by waiving union dues. Strong words, but no other conclusion can be reached after reviewing the Board’s decision.

In July 2013, the AFL-CIO released a report in advance of its annual convention that provides a blueprint of how the labor movement intends to reinvent itself. The document – Interim Report to the AFL-CIO Executive Council on AFL-CIO Pre-Convention Outreach and Engagement – discusses the organization’s many outreach efforts, and how it plans to evolve and adapt to combat waning membership.

Executive Summary: The Fourth Circuit has become the second federal appeals court to strike down the National Labor Relations Board’s rule requiring employers to post a notice of employee rights. In Chamber of Commerce v. NLRB (June 14, 2013), the court held that the Board exceeded the authority granted to it by the National Labor Relations Act when it promulgated the rule.

In State Employees Bargaining Agent Coalition v. Rowland I/O as Governor of the State of Connecticut, Connecticut Governor Dannell Molloy attempted to extract $450 million in long-term concessions from the State Employees Bargaining Agent Coalition (SEBAC) and 13 other public employee unions during the negotiation of a collective bargaining agreement. Notably, these unions represented 40,000 Connecticut state employees. The Governor advised the plaintiffs that unless they agreed to the concessions, he would fire approximately 3,000 unionized state employees. When the plaintiffs not only failed to agree to the Governor’s proposed concessions but also offered alternative concessions, the Governor ordered the firing of approximately 2,800 union employees.

Executive Summary: Although the D.C. Circuit Court of Appeals’ decision invalidating the Nation Labor Relations Board’s (NLRB’s) notice posting requirement means that private employers currently are relieved of this obligation, the ruling did not create a reprieve for federal contractors.

The divergence of opinion between the National Labor Relations Board (NLRB) and the United States Court of Appeals for the District of Columbia Circuit has just widened considerably. Three months after the D.C. Circuit ruled that certain board actions were invalid due to constitutionally invalid appointments by President Barack Obama (Noel Canning v. NLRB), the court, in National Association of Manufacturers v. NLRB, has invalidated a 2012 board rule providing that: 1) any employers subject to the board’s jurisdiction would be liable for an unfair labor practice if they did not post on their properties and on their websites a “Notification of Employee Rights under the National Labor Relations Act;” 2) the failure to post would toll the six-month statute of limitations for filing an unfair labor practice charge; and 3) the board may consider an employer’s knowing and willing refusal to comply with the posting requirement as “evidence of unlawful motive in a case in which motive is an issue.”

Executive Summary: The D.C. Circuit Court of Appeals has vacated the National Labor Relations Board’s rule requiring employers to post a Notice of Employee Rights under the NLRA because it violates employers’ free speech rights. See National Ass’n of Manufacturers v. NLRB (May 7, 2013). The court also found invalid the rule’s provision permitting tolling of the statute of limitations for an unfair labor practice if the employer failed to post the Notice.

Executive Summary: Employers who seek to protect their confidential business information and their reputations by requiring employees to sign employment agreements containing confidentiality and non-disparagement clauses may now face opposition from the National Labor Relations Board (NLRB). In Quicken Loans (January 8, 2013), an ALJ in the NLRB’s Phoenix region held that such clauses violate section 8(a)(1) of the National Labor Relations Act (NLRA) because they tend to chill employees’ exercise of their Section 7 rights.