Tag: NLRB

New NLRB Rule Speeds Union Elections

An article published recently in the National Law Review by John A. Ferguson Jr., Robert S. Nichols, Nancy M. O’Connor, and Lon R. Williams Jr. of Bracewell & Giuliani LLP covered the New Union Election Rules by the NLRB:

Time and Procedures for Employers to Respond to Union Election Petitions Are Eliminated or Reduced

Today the National Labor Relations Board (NLRB) published in the Federal Register its new Rule that will change procedures for private sector union representation elections. The Rule becomes effective April 30, 2012. The Rule dramatically shortens the period between the filing of an election petition and the election unless the parties stipulate to the election date. The Rule also effectively eliminates pre-election challenges to NLRB rulings on such critical issues as the appropriate bargaining unit and eligible voters.

While the NLRB defends these changes predicting they “will reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation,” the sure effect of these changes will be to reduce the time period—and thus the opportunity—for employers to communicate their views on unions with their employees and to respond meaningfully to union campaign efforts before an election is held.

Which Election Procedures Will Be Changed?

The specific amendments to the NLRB’s current rules of procedure include:

  • Authorizing NLRB hearing officers in pre-election hearings to limit evidence on any individual eligibility issue.
  • Expanding these hearing officers’ discretion over post-hearing briefs, including limiting the subjects that can be addressed, the amount of time for filing, and also determining whether a brief can be filed at all.
  • Eliminating the right to request pre-election review of a Regional Director’s rulings, requiring the request for review to be consolidated with any post-election requests for review of the Regional Director’s rulings on challenges and objections.
  • Eliminating the current 25-day waiting period between the Regional Director’s post-hearing Decision and Direction of Election and the election.
  • Limiting special appeals from rulings of the NLRB hearing officer or Regional Director to “extraordinary circumstances where it appears that the issue will otherwise evade review.”
  • Subjecting the current right to appeal a Regional Director’s post-election rulings on potentially outcome-determinative challenges and objections to the NLRB’s discretion.

What Changes That the NLRB Had Initially Proposed Are Not Included in Its New Rule?

The NLRB’s Final Rule implements only some of the more dramatic procedural changes that the NLRB had originally proposed in June 2011. Some of those proposed changes which are not included in the current Rule would have:

  • Required employers to directly provide the union—within two days of the Regional Director’s decision—each eligible employee’s name, telephone number, e-mail address, work location, shift and classification. Currently, only the employee’s name and home address are required to be provided by the employer to the Regional Director within seven days of the decision. The Regional Director then makes that information available to the union.
  • Set the pre-election hearing within seven days of the filing of the election petition and required that the non-petitioning party, such as an employer, submit a written statement of position with all substantive arguments before that hearing or risk waiving those arguments on appeal.

Has the NLRB’s Final Rule Been Challenged?

Yes.

  • On December 1, 2011, the U.S. House of Representatives passed theWorkforce Democracy and Fairness Act, which would allow a union representation election only after 35 days from the filing of the petition and would also require a two-week waiting period before the first hearing could be held on that petition.
  • On December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the United States District Court for the District of Columbia challenging the Rule, claiming that employers will be denied a fair opportunity to explain to employees the consequences of unionizing.

© 2011 Bracewell & Giuliani LLP

Barnes & Thornburg Labor Relations’ Top Ten Traditional Labor Stories of 2011 (Part 1)

‘Tis the season for year-end recaps, and we here at BT Labor Relations couldn’t resist taking our own look back at the year in traditional labor. As we move into 2012, here’s our countdown of the top ten traditional labor issues that made the news this year. Numbers 10 through 6 are below; check back tomorrow for our top five.

10. The Board sues Arizona over secret ballot constitutional amendment

2011 started off with a bang in January when the Board’s Acting General Counsel Lafe Solomon threatened to sue four states (Arizona, South Carolina, South Dakota, and Utah) over their secret ballot union election constitutional amendments. All four states added provisions to their state constitutions mandating that union elections be held by secret ballot only, after constitutional amendments passed by public referendum at the November 2010 election. These constitutional amendments were in response to the Employee Free Choice Act (EFCA) proposed in Congress in 2009, which would have required an employer to recognize a union if a majority of employees signed cards stating their desire for representation. This “card check” method of recognition is currently allowed by the NLRA, but employers have the option of demanding that election of the union be confirmed by a secret ballot. EFCA would have taken this option away from employers (as well as enacting other pro-union changes to the NLRA).

EFCA never became law, but the constitutional amendments in these states passed anyway, purportedly preserving the right of a secret ballot election for employers in those states. The amendments as they currently stand do not conflict with the NLRA, but the NLRB nevertheless took exception to them, claiming that such state provisions are preempted by federal law. After a back and forth discussion with the states’ Attorneys General during the early part of 2011, the NLRB filed suit against Arizona in May, asking the court to declare that Arizona’s constitutional amendment was preempted by federal law and therefore unenforceable.

Although EFCA never became law, the NLRB has made attempts to individually implement many of the pro-union changes proposed in the bill, and Arizona has become the battleground for card checks. So far, the NLRB’s lawsuit appears to have some traction. The Arizona federal court hearing the case has deniedArizona’s motion to dismiss and litigation continues. Stay tuned in 2012 as this issue continues to develop …

See B&T’s previous coverage of this issue here.

9. The NLRB strikes a blow to mandatory arbitration policies in Supply Technologies

Companies love mandatory arbitration policies in contracts and in May, the U.S. Supreme Court issued a landmark decision in AT&T v. Concepcion upholding such policies in consumer contracts. Employers also see the appeal of mandatory arbitration clauses and many union contracts include such provisions. However, an NLRB Administrative Law Judge reminded employers of the limits of such policies in a decision in June, finding in Supply Technologies LLC that an employer’s arbitration policy violated the NLRA by unlawfully restricting employees’ rights by suggesting that an employee had to bring any unfair labor practice charge through the arbitration procedure, and thus could not make that charge with the Board. This decision served as a warning for employers hopeful after theConcepcion decision that arbitration provisions should be carefully reviewed before being included in collective bargaining agreements. Employers should know that just because SCOTUS approves, doesn’t mean the Board will.

See B&T’s previous coverage of this issue here.

8. Congress sits up and takes notice (although no new legislation is actually passed)

With a new majority in the House of Representatives after the 2010 elections, certain Republican members of Congress have made the NLRB their new target this year. Several hearings were held by Congressional Committees to discuss what many characterize as the pro-union, “activist agenda of the National Labor Relations Board.” The Board’s complaint against Boeing was a frequent target, as well as its decisions regarding posting requirements, “quickie” elections, and “micro” bargaining units.

Additionally, Republicans in both the House and the Senate have introduced bills to amend the NLRA to reverse these controversial actions taken by the NLRB in 2011. The Democrats weren’t able to get EFCA passed when they had a majority of both houses, so it is unlikely that any of this legislation will actually be passed by a divided Congress, but the NLRB’s continued perceived pro-union actions have made traditional labor a key issue as we move into the 2012 election season.

See B&T’s previous coverage of this issue here.

7. General Counsel memo regarding mandatory language in settlement agreements puts additional pressure on employers

This year, the Board has placed additional pressure on employers looking to settle NLRB proceedings with the issuance of a memo by General Counsel Solomon in January which requires mandatory language in settlement agreements whereby an employer in effect agrees in advance that if it is even accused of violating the agreement, all of the prior charges against it have merit. Although the Board characterized this language as necessary for effective enforcement of such agreements, this requirement likely has the effect of simply making employers less willing to settle a case. And it was another example of the Board’s aggressive efforts to secure rights for unions in 2011.

See B&T’s previous coverage of this issue here.

6. Specialty Healthcare decision opens the door for “micro” bargaining units

One of the Board’s more controversial decisions of 2011 was issued in August regarding appropriate bargaining units. In Specialty Healthcare (357 NLRB No. 83), the Board overturned 20 years of precedent regarding determination of an appropriate bargaining unit in non-acute health care facilities. The Board increased the burden on employers who wish to challenge a bargaining unit petitioned for by a union to include more employees. Under the new standard, employers have the burden to prove that the employees the employer believes also should be part of the unit share an “overwhelming community interest” with the petitioned for employees. The previous rule (as articulated by the Board inPark Manor Care Center, 305 NLRB 872 (1991)), applied a lower standard: whether the community of interest of the employees the employer sought to include was “sufficiently distinct from those of other employees” in order to justify their exclusion from the bargaining unit.

The upshot is that this decision allows unions to pursue so-called “micro” bargaining units, and it will be easier for unions to certify bargaining unit(s) piecemeal, even when a majority of employees in a facility do not desire union representation. This decision helps unions trying to “get a foot in the door” by allowing them to target vulnerable employer sub-groups.

This decision was targeted by legislation introduced in Congress to reverse it, but for now, it remains current Board law and sets up new challenges for employers seeking to avoid unionization.

See B&T’s previous coverage of this issue here.

Disagree with our picks? Let us know in the comments what traditional labor issues you think were most important in 2011. And don’t forget to check back tomorrow for our top five!

© 2011 BARNES & THORNBURG LLP

New Facebook Cases – No Protected Concerted Activity, But Is It Surveillance??

Posted in the National Law Review an article by Adam L. Bartrom and Gerald F. Lutkus of Barnes & Thornburg LLP regarding Facebook cases continue to be examined by the NLRB

Facebook cases continue to be examined by the NLRB as a new technology cloaked in traditional case law.  The NLRB’s General Counsel has recently decided to dismiss three complaints brought by terminated employees who were fired for their Facebook posts.  In all three cases, the GC found the conduct not to be protected concerted activity under Section 7 of the NLRA.  That approach is consistent with the GC’s memo earlier this year which emphasized that content and context were key in analyzing whether disciplinary action brought as a result of social media chatter violated the NLRA.  A recent blog post on the topic appears here. To access the GC’s office memoranda on these cases, click here.  All three continue to show the NLRB’s focus on whether the Facebook chatter is merely an expression of individual gripes or is the chatter an effort to initiate group dialogue or group action.  Employers must continue to evaluate decisions to discipline for social media postings within that context.

 However, buried in one of the opinions, Intermountain Specialized Abuse Treatment Center, is a provocative and concerning analysis by the GC’s office regarding union surveillance.  The Advice Memorandum concludes that it agrees with the Regional Director that the Employer did not unlawfully create the impression that it was engaged in surveillance of protected union activity by having knowledge of the Facebook post.  What??  The memorandum states that employer surveillance or creation of an impression of surveillance constitutes unlawful interference with Section 7 rights.  Here, there was no such impression of surveillance because the employer received the Facebook information from another employee and the conduct at issue turned out not to be protected activity.  However, the memorandum certainly raises the question of whether an employer practice to examine Facebook posts on a regular or even on an as needed basis would violate Section 7 rights.  The jury is still out on that issue.  Stay tuned.

© 2011 BARNES & THORNBURG LLP

Divided NLRB Issues Controversial Expedited Election Rules

Posted in the National Law Review an article by attorneys Thomas E. Obenberger and Scott C. Beightol of Michael Best & Friedrich LLP regaring  the National Labor Relations Board recent vote which reversed decades of precedent and practice:

 

On December 22, 2011, the National Labor Relations Board (the “NLRB” or “Board”) published final rules (76 Fed. Reg. 80138) adopted by the Board on a split 2-1 vote which reversed decades of precedent and practice as to how the Board will process representation proceedings. While the final rules place into effect only about one-half of the amendments proposed in its June 22, 2011, Notice of Proposed Rulemaking (76 Fed. Reg. 36812), leaving the others for “further deliberation,” the amendments adopted by the Board dramatically change the substance, timing and procedures involved in union organizing campaigns and representation proceedings, and substantially alter the rights of the parties involved. The amendments adopt many of the “reforms” sought by organized labor through its previously unsuccessful efforts to secure passage of the Employee Free Choice Act. The following comments highlight some of the major changes made by the Board to representation case processing.

While the rules, scheduled to become effective April 30, 2012, have already been challenged in court, it is important for employers to evaluate where they are in terms of their labor relations and union free policies, how well prepared they are to respond to union organizing activities which conceivably could result in a representation election being conducted between 10 to 20 days after the filing of a petition, and how best to communicate with employees on an ongoing and expedited basis.

Among the more significant changes are those relating to initial stages of processing of a representation petition. Changes impact the all-important determination of the scope and composition of an appropriate bargaining unit; inclusions in or exclusions from the voting unit of various individuals or classifications of employees; and, rights to have decisions of an NLRB Hearing Officer or Regional Director reviewed and determined prior to the conduct of an NLRB election.

Significantly, the rules narrow the scope of initial hearings conducted before a Regional Office Hearing Officer following the filing of a petition. The rules generally prevent litigation and pre-election determination of the nature and scope of the appropriate bargaining unit, and inclusions or exclusions of individuals or classifications of employees from that unit, leaving such issues for a post-election hearing, with questioned voters being permitted to vote subject to challenge.  Eligibility issues would be combined in a single post-election hearing also encompassing post-election challenges and objections. Based on the amendments, the only issues generally resolved at a pre-election hearing are to be whether a question of representation exits, and whether there exists any bar to the conduct of the election.

This presents a significant issue for employers, many of whom currently employ numerous individuals who may or may not be supervisors as defined by the National Labor Relations Act, or who may work in classifications which may or may not share a community of interest with a petitioned for unit.  Inclusion or exclusion of such individuals or groups from the voting unit can present serious ramifications. For example, an employer who employs a number of lead persons or working foremen would be found to have committed an unfair labor practice and interfered with the representation election, resulting in a set aside, if those individuals, subsequently found to be statutory supervisors, would have been permitted to participate in the election as eligible employees. Likewise, an employer who prohibits the participation of such individuals, thinking that they may be statutory supervisors, would be guilty of interfering with the protected rights of those individuals if they were found to be eligible and not supervisory employees.

Other than observing that a Regional Director or Hearing Officer might choose, in their discretion, to consider such issues in a pre-election hearing, the Board offers little comfort to employers faced with this dilemma. In fact, in its published comments accompanying the amended rules (76 Fed. Reg at p. 80165), the Board acknowledges that it has previously held in Barre-National, Inc., (1995), 316 NLRB 887, that a Hearing Officer erred by preventing an employer from presenting evidence at a pre-election hearing regarding the eligibility of 24 group leaders (just under 10% of the total unit) to vote in an election directed in a unit of production, maintenance and warehouse employees. The Board brushed off this issue, stating “The Board will no longer follow Barre-National under the amended rules.” (76 Fed. Reg. at p. 80165).  Employers are apparently left, under the amended rules, with trying to persuade a Hearing Officer or Regional Director to take discretionary evidence as to eligibility or exclusion of employees even if the number of employees involved might significantly change the size or character of the voting unit.

Just as importantly, the amended rules severely restrict the rights of an employer to appeal adverse Regional Director or Hearing Officer decisions to the full Board for review. In the past, post-election regional determinations as to challenges and election objections were appealable, as a matter of right, to the NLRB. Such determinations, now including pre-election determinations, as to which no separate right of appeal exists, will only be considered by the Board on appeal in its discretion, and then only if they present an issue of first impression or if there exists a conflict in the law.

Among other noteworthy amendments, the Board has now eliminated the previous 25 day waiting period for an election to be scheduled following a direction of election by a Regional Director, and, in a major change, the terms of a “stipulation” agreement for an election can no longer provide for final resolution of post-election challenges and objections by the NLRB, leaving such final determination to a Regional Director – the same as if the parties were to have entered into a “consent” election agreement, rather than the previously more widely favored “stipulation” form of agreement.

The effect of the amendments was well stated in the dissenting comments of Board Member Hayes upon publication of the then proposed rule changes (76 Fed. Reg. at 36831):

What is certain is that the proposed rules will (1) substantially shorten the time between the filing the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.

© MICHAEL BEST & FRIEDRICH LLP 

NLRB Approves Significant Changes to Representation Election Procedures

Recently published  in The National Law Review an article byJ. Kevin Hennessy, Kenneth F. Sparks, Mark L. Stolzenburg and Lyle S. Zuckerman of Vedder Price P.C. regarding NLRB’s vote at a public meeting on November 30, 2011:  

In June 2011, the National Labor Relations Board issued a Notice of Proposed Rulemaking that sought to significantly change the procedures for representation elections under the National Labor Relations Act. The purpose of the Proposed Rulemaking was to limit the time that an employer has to express its views to employees regarding unionization during a campaign. The NLRB held two days of hearings in July 2011 regarding the proposed rule and received over 65,000 written comments.

At a public meeting on November 30, 2011, by a 2-1 party-line vote, the NLRB voted in favor of a resolution to adopt many provisions of the rule proposed in June. While some of the more controversial provisions were not included, the amendments that the NLRB approved in its November 30 resolution will quicken the election process.

That said, the Board still must draft a final rule and vote on it. However, with the recess appointment of Board Member Craig Becker expiring on December 31, 2011, the Board will lose its three-member quorum and therefore will be unable to adopt rules or otherwise conduct business in any significant manner after that date. Senate Republicans have announced that they will remain in session between now and the 2012 elections, depriving President Obama of the ability to make any additional recess appointments to the NLRB. As a result, employers should expect that the Board will move quickly to prepare and vote on a final rule within the next few weeks.

The resolution that the Board adopted on November 30 contains six procedural amendments to be included in the final rule regarding changes to the election process:

1.  The final rule would amend the existing rule regarding the purpose of pre-election hearings, making them for the sole purpose of determining “whether a question concerning representation exists that should be resolved by an election.” The primary effect of this rule is to preclude litigation about most voter-eligibility issues, such as supervisory status, during pre-election hearings. It is unclear whether this would preclude parties from litigating the overall appropriateness of the petitioned-for bargaining unit. The resolution appears to be more restrictive than the rule proposed by the Board in June 2011, which would have allowed the parties to litigate eligibility issues in a pre-election hearing if those issues involved at least 20 percent of the proposed voting unit.

2.  Under current rules, parties may file post-hearing briefs as a matter of right. The amended rule leaves to the discretion of the hearing officer whether post-hearing briefs will be permitted. In most cases, the parties will be allowed to make closing arguments at the end of the hearing, and briefs will be permitted only where unique or complicated issues are involved.

3.  Current rules require parties to file separate appeals to seek Board review regarding pre-election and post-election issues. The amended rules eliminate all pre-election review by the Board, and will consolidate all issues for review, including election objections, in a single, post-election appeal. According to Chairman Pearce, this will avoid appeals of issues “that become moot as a result of the election.”

4. The fourth amendment eliminates the 25- to 30-day waiting period between issuance of a Regional Director’s Decision and Direction of Election and the scheduling of an election. The purpose of this waiting period is to allow parties to request review of the Regional Director’s decision by the Board, a process that is eliminated by the third amendment.

5. The fifth amendment would limit to “extraordinary circumstances” occasions when requests for special permission to appeal to the Board would be granted. Under this standard, the Board would entertain pre-election appeals only when the issue would “otherwise evade review.”

6. Currently the Board must consider any post-election requests for review. The sixth amendment would make Board review of post-election appeals discretionary, permitting the Board to summarily dispose of appeals “that do not present a serious issue for review.” This is the same standard that currently exists for pre-election reviews.

Several components of the rule proposed in June were not included in the Board’s resolution adopted on November 30. Those are (i) inclusion of employee e-mail address and telephone number on voter-eligibility lists provided to the union before the election, (ii) reducing the time that an employer has to provide the voter eligibility list to the union from seven to two days, (iii) requiring parties to state their positions regarding pre-election issues prior to the hearing and (iv) requiring an employer to provide a “preliminary voter list” before the pre-election hearing. However, on November 30, the Board reserved its right to continue considering these elements of the June rulemaking session.

As NLRB Member Brian Hayes noted at the November 30 public meeting during which the Board voted to adopt the resolution, the median time between the filing of a petition and an election in 2010 was 38 days, and about 95 percent of all elections occur within 56 days. The time target in most cases is for an election to occur within 42 days of the filing of a petition. The amendments approved in the Board’s resolution may have little effect on elections in which the parties agree about the composition of the voting unit and other details without a hearing. However, where there is a dispute over the eligibility of certain voters, elections will occur much more quickly than in the past. In addition, the amendments may increase uncertainty for employers during campaigns. Issues of supervisory status will not be resolved until after an election is over. As a result, employers may be placed at increased risk of unfair labor practice allegations for the conduct of individuals who were not deemed supervisors until long after a campaign concluded.

As a result of these rules that the NLRB is soon to adopt, employers should review their contingency plans for organizing drives and give serious thought to the content of condensed campaigns. Shorter election campaigns may soon be a reality.

© 2011 Vedder Price P.C.

Brief Filed in Litigation Challenging the NLRB’s Final Rule Requiring All Employers to Post Notice of Employee Rights Under the NLRA

Recently posted in the National Law Review  an article by Labor & Employment Practice of Morgan, Lewis & Bockius LLP regarding the NLRB’s Final rule:

 

 

On August 25, the National Labor Relations Board (NLRB or Board) issued a Final Rule (Rule) that requires all employers subject to the Board’s jurisdiction—i.e., the vast majority of employers doing business in the United States—to post a notice in the workplace informing employees of their right, among other things, to “[o]rganize a union,” to “take action . . . to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government, and seeking help from a union,” and to “strike and picket.”

Under the Rule, the notice must be posted in the same place where other employment-related notices are posted, which may include the employer’s intranet or Internet site if the employer customarily communicates with its employees by such means. Failure to post the notice could have three adverse effects: (1) it will be an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act (NLRA), (2) it could toll the six-month statute of limitations for filing unfair labor practices, and (3) it could be used as evidence of an employer’s unlawful motive in unfair labor practice cases.

The Rule is scheduled to go into effect on January 31, 2012.

The Status of the Litigation Challenging the Rule

After the Rule was announced, three separate lawsuits were filed in federal court to block its implementation: two in Washington, D.C. (which were consolidated into one case) and one in South Carolina. The cases challenge, among other things, the NLRB’s authority to issue the Rule.

Cross-motions for summary judgment were filed on October 26 in the District of Columbia action and on November 11 in the South Carolina action. On November 15, John Kline, the Chairman of the House of Representatives’ Committee on Education and the Workforce, along with 35 other members of the House of Representatives, filed in both pending cases an amicus brief supporting the challenge to the Board’s authority to issue the Rule.

The amicus brief was authored by Morgan Lewis attorneys, led by Philip Miscimarra and including former NLRB member Charles Cohen. “Our brief was filed on behalf of thirty-six members of Congress, including John Kline, Chairman of the House Committee on Education and the Workforce, many other members of that Committee, and additional House Members. Their interest in the litigation stems from the fact that legislative decisions are reserved for Congress. The Members we represent believe the NLRB’s creation of a notice-posting obligation—which Congress did not place into the National Labor Relations Act—is contrary to the NLRA and exceeds the NLRB’s authority,” Miscimarra said.

The brief highlights for the first time in either litigation important legislative history showing that the original version of the NLRA contained a notice provision and a specific unfair labor practice relating to the notice provision. Led by Senator Robert Wagner, the sponsor of the law, a unanimous Senate Labor Committee intentionally eliminatedthe notice provision before the NLRA became law. “As the legislative history makes clear, Senator Wagner himself, together with his colleagues, thought there should be no requirement for companies to provide notification to employees. It is time for the NLRB to honor those wishes and abandon its ill-fated notice requirement,” said Cohen.

The amicus brief also discusses how Congress intentionally limited the NLRB’s jurisdiction to actual parties in pending cases—a limitation that was deemed by Congress to be central to the NLRA’s constitutionality. Finally, the amicus brief argues that the new NLRB-created notice obligation undermines important rights afforded by other statutes that explicitly provide for notice provisions. View a copy of the amicus brief at http://www.morganlewis.com/pubs/AmicusBriefUSHouseMembers_DC_15nov11.pdf. A decision regarding whether the NLRB had the authority to issue the Rule is expected before the current implementation date of January 31, 2012.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Department of Labor Revises Conflict Disclosure Requirements for Labor Union Officials

Barnes & Thornburg LLP‘s Labor and Employment Law Department recently posted in the National Law Review an article about the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report.:

 

 

On Oct. 26, 2011, the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report. The new rule reverses the rule published by the agency in 2007 that significantly expanded the financial disclosure requirements of union officials. Effective Nov. 25, 2011, union officials are now required to disclose only payments and interests that involve “actual or likely” conflicts between the official’s personal financial interests and his or her duties to the union. The DOL explains that such conflicts include “payments, interests and transactions involving the employers whose employees the union represents or actively seek to represent, vendors and service providers to such employers, the official’s union or the union’s trust and other employers from which a payment could create a conflict.” The new rule applies to reports required by union officials with fiscal years beginning on or after Jan. 1, 2012.

Use of Form LM-30 for reporting purposes began in 1963 pursuant to Section 202 of the Labor-Management Reporting and Disclosure Act. Although the reporting requirements for Form LM-30 were significantly expanded in 2007, the DOL had issued a non-enforcement policy in 2009 that allowed filers to use either the 2007 expanded version of Form LM-30 or the 1963 version of the Form to disclose potential conflicts.

© 2011 BARNES & THORNBURG LLP

NLRB Delays Implementation of Mandatory Notice Posting Rule

Recently posted in the National Law Review  an article regarding the NLRB postponing the date for employers to post notices informing employees of their rights to join a union  by Aaron J. Epstein of Andrews Kurth LLP:

 

Last week, the National Labor Relations Board (NLRB) postponed the effective date for its rule requiring most U.S. employers to post workplaces notices informing employees of their rights under the National Labor Relations Act (NLRA), including the right to join a union. The NLRB published the new rule on August 31, 2011, and initially set an effective date of November 14, 2011. However, in the face of two lawsuits challenging the validity of the new rule, and citing the need to conduct enhanced education and outreach, the NLRB has delayed the effective date until January 31, 2012.

Below is a brief overview of the new rule and the steps employers must take to comply.

To Whom the Rule Applies

The notice posting rule applies to all employers covered by the NLRA, whether or not they have a unionized workforce. NLRA coverage is intentionally broad and reaches almost all private sector employers. In the case of retail businesses, the NLRB’s jurisdiction covers any employer with a gross annual volume of business of $500,000 or more. The NLRB’s non-retail jurisdictional standard extends to most other employers. It is based on the amount of goods sold or services provided by an employer out of state, called “outflow,” or goods or services purchased by an employer from out of state, called “inflow.” Under this standard, any employer with an annual inflow or outflow of at least $50,000 is subject to the NLRA.

What the Rule Requires

The NLRB’s new rule dictates that employers post an 11-inch-by-17-inch notice detailing employee rights under the NLRA in a conspicuous place where other notifications of workplace rights and employer policies and rules are customarily posted. Employers are required to take reasonable steps to ensure that the notice is not altered, defaced, covered, or otherwise rendered unreadable. Additionally, employers who post personnel policies or workplaces notices on a company intranet or internet site must also post the NLRA notice on those sites, or they can provide a link to the notice on the NLRB’s website with the title “Employee Rights Under the National Labor Relations Act.”

Copies of the notice, in English and Spanish, are available at www.nlrb.gov or at any of the agency’s regional offices. The notice must be posted in English and in another language if at least 20 percent of employees are not proficient in English and speak the other language. The NLRB will provide translations of the notice, and of the required link to the NLRB’s website, in the appropriate languages. If a workforce includes two or more groups, each constituting at least 20 percent of the workforce, who speak different languages, an employer must post the notice in the language spoken by the larger group, and then may either post the notice in the language(s) spoken by the other group(s) or, at the employer’s option, distribute copies of the notice to those employees in their language(s). If such an employer is also required to post the notice electronically, it must do so in each of those languages.

Failure to Comply with the Rule

Failing to post the notice may, in and of itself, be treated as an unfair labor practice and subject an employer to remedial measures. The NLRB may also extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case dealing with other alleged violations of the NLRA.

© 2011 Andrews Kurth LLP

Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts

Recently posted  in the National Law Review an article by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap  of McDermott Will & Emery regarding the NLRB found that an employer unlawfully terminated five employees because they posted comments on Facebook:

In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions.  This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.

This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions.  Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems.  HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.

Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA.  The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees.  The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.

While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook.  As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.

© 2011 McDermott Will & Emery

NLRB Permits Micro-Units In Specialty Healthcare Decision

Recently posted in the National Law Review an article by Mark A. Carter of Dinsmore & Shohl LLP regarding NLRB’s controversial decision to overturn 20 years of precedent:

In one of its most controversial decisions to date, the National Labor Relations Board (“NLRB”) has overturned 20 years of precedent and will now permit unions to organize a minority share of an employer’s workforce. As a result of this decision, organized labor will be able to establish footholds in businesses where the majority of the employees may not desire to be represented by a union. 

On August 26, 2011 the NLRB released its decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In Specialty Healthcare, the United Steelworkers petitioned for a representational election in a bargaining unit that was very distinct from the typical “wall to wall” unit. For decades, the NLRB has concluded that where employees share a “community of interest” that the appropriate bargaining unit in a representational election should include all of the employees of the employer who are similarly situated. Typically this type of unit is called a “wall to wall” bargaining unit and its common description includes all “production and maintenance” workers employed by the employer excluding clerical, administrative and security employees. This scope of employees insured that the union would be elected where the majority of the employer’s employees desired to be represented by a union, but that where a majority of the employees did not desire to be represented, their terms and conditions of employment, and their workplace, would not be impacted by the presence of a labor union. Moreover, the “wall to wall” unit insured that there was not a fracturing of the employer’s workforce where several unions represented several small groups of employees making the collective bargaining unmanageable for any of the parties.

This logical and longstanding policy of Democratic and Republican majority labor boards has been scuttled.

In Specialty Healthcare, the employer operates a nursing home and rehabilitation center in Mobile, Alabama. Among the job classifications – or job titles – at this facility is a “CNA”, or, certified nursing assistant. Rather than seeking to represent all of the employer’s employees, the union petitioned for a bargaining unit consisting only of the CNAs. The employer objected on the basis of the NLRB’s decision in Park Manor Care Center, 305 NLRB 872 (1991) and the Board’s longstanding practice of not certifying “fractured” units but insisting that all of the employer’s employees who shared a community of interest comprised an appropriate bargaining unit. The NLRB, through a regional director, initially concluded that this petition was appropriate and directed an election be held amongst only the employer’s full and part time CNAs. The employer appealed this decision, in essence, by asking the NLRB to review the regional director’s decision. The NLRB not only accepted this obligation but requested briefs from interested parties regarding whether its decision inPark Manor and its longstanding practice of certifying only bargaining units of all of the employees with a community of interest should remain the law. Significantly, the NLRB also requested interested parties’ positions regarding whether its decision should have application in all industries rather than just the health care industry which maintains unique standards under the National Labor Relations Act.

After inviting and, presumably, considering this argument, the NLRB reversed the Park Manor decision and will now permit appropriate units to be petitioned-for and certified even when larger and “more appropriate” bargaining units exist in the employer’s workforce.

“Nor is a unit inappropriate simply because it is small. The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate.”

To that end, the NLRB wrote that it will focus on the community of interest of the employees, the extent of common supervision, interchange of employees, geographic considerations “etc., any of which may justify the finding of a small unit.” An employer can challenge the determination regarding the composition of the unit, but the Board will now require that the burden to establish that a bargaining unit is not appropriate will be an “overwhelming” community of interest between the employees in the petitioned-for unit and the larger workforce.

“…when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or other similar factors) and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit…”

The NLRB did agree that cases may exist where the petitioned-for unit inappropriately “fractured” the workforce. For example, had the union petitioned only for CNAs working the night shift vs. all employees, or only CNAs working on the first floor and not the second floor, but it is eminently clear that the Board will direct elections and certify bargaining units of employees simply because they have one job title or job function and permit the union to ignore the other employees with distinct job titles or functions even when that means that the minority of the employees overall support the union. The reality is that all of the employees will have to deal with the union.

Employers should take no stock in some press suggestions that this decision has limited application to the health care industry. There is no holding or assurance that the rule is limited to the health care industry merely because the case arose within the health care industry. Rather, employers will be well served to heed the opening of Member Brian Hayes dissent which is absolutely accurate:

“Make no mistake. Today’s decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.”

© 2011 Dinsmore & Shohl LLP. All rights reserved.