"When employees are denied the freedom to act in concert even when they desire to do so, they cannot exercise a restraining influence upon the wayward members of their own groups, and they cannot participate in our national endeavor to coordinate production and purchasing power. The consequences are already visible in the widening gap between wages and profits. If these consequences are allowed to produce their full harvest, the whole country will suffer from a new economic decline. The national labor relations bill which I now propose is novel neither in philosophy nor in content. It creates no new substantive rights. It merely provides that employees, if they desire to do so, shall be free to organize for their mutual protection or benefit.

[…] A great deal of interest centers around the question of majority rule. The national labor relations bill provides that representatives selected by the majority of employees in an appropriate unit shall represent all the employees within that unit for the purposes of collective bargaining. This does not imply that an employee who is not a member of the majority group can be forced to enter the union which the majority favors. It means simply that the majority may decide who are to be the spokesmen for all in making agreements concerning wages, hours, and other conditions of employment. Once such agreements are made the bill provides that their terms must be applied without favor or discrimination to all employees. These provisions conform to the democratic procedure that is followed in every business and in our governmental life, and that was embodied by Congress in the Railway Labor Act last year. Without them the phrase “collective bargaining” is devoid of meaning, and the very few unfair employers are encouraged to divide their workers against themselves.” - Senator Robert Wagner (D-NY), speaking to the 74th Congress on the National Labor Relations Act.

The National Labor Relations Act was passed in 1935 and established a basis for collective bargaining in the United States, while also creating the National Labor Relations Board (NLRB). The NLRA, also known as the Wagner Act, applies to most private-sector employers and guarantees the following:

 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [Sec. 7]

The NLRA was also crucial for outlining unfair labor practices for employers, meant to ensure workers could exercise their rights and join unions without fear of reprisal. This was not merely a one-sided document; the Act also outlined unfair labor practices for labor unions.

Based on this federal law, it is an unfair labor practice for employers to refuse collective bargaining with the employees’ representatives, to discriminate against an employee or potential employee so as not to “encourage or discourage membership in any labor organization,” to interfere with the creation or operation of labor organizations, and to interfere with an employee’s rights laid out in Sec. 7 (above).

Happy Labor Day, all.

[Above: Truckers and teamsters fight police in the streets of Minneapolis during the Teamsters Strike in 1934; police use tear gas as truckers organize and strike. The violent 1934 Teamsters Strike was considered an event that helped the passage of the NLRA. Photo Credit: National Archives, Minnesota Historical Society]

BREAKING: NLRB adopts new rules to reduce unnecessary delays

Hours ago, the National Labor Relations Board adopted new rules that would put an end to unnecessary litigation around union elections.

Said NLRB Chairman Michael Pearce:

"This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation."

The rule is due to take effect on April 30, 2012.

See the NLRB’s full statement here.

It isn’t just Richard Cordray. Obama is also set to use recess appointments to install his picks to the National Labor Relations Board, according to White House officials and others familiar with ongoing discussions.

The move, which is arguably as important as the Cordray appointment, will ratchet up opposition from Republicans and make this an even bigger fight, since they have been attacking the NLRB regularly for its moves to streamline union elections and inform workers of their rights.

Obama is set to appoint Sharon Block, Terence Flynn, and Richard Griffin to the board — something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.


Nice! Basically the rule changes will put most of the legal mumbo jumbo that employers use to delay union elections for months after the election. Then it can all be sorted out afterword. This will shorten the time that employers will have to bring in union busting law firms that help intimidate workers and violate labor law while muddying the waters of an election process with frivolous delays.

I dunno why the Chamber of Commerce is against this. It’ll save businesses money. Now instead of companies hiring $1,000-a-day lawyers from union busting firms like Jackson Lewis for months and months at a time, it’ll be more like two months or less. :)

NLRB: In recent years, only about 10 percent of NLRB election cases have gone through the hearing process. Such elections have been held on average 101 days after the election petition was filed with a regional office.

“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said Chairman Pearce.

The general counsel of the National Labor Relations Board ruled on Tuesday that McDonald’s is jointly responsible for workers at its franchisees’ restaurants, a decision that if upheld would disrupt longtime practices in the fast-food industry and ease the way for unionizing nationwide.

Richard F. Griffin Jr., the labor board’s general counsel, said that of the 181 unfair labor practice complaints filed against McDonald’s and its franchisees over the last 20 months, he found that 43 had merit on such grounds as illegally firing or threatening workers for pro-union activities.

In those cases, Mr. Griffin said he would include McDonald’s as a joint employer, a classification that could hold the fast-food company responsible for actions taken at thousands of its restaurants. Roughly 90 percent of the chain’s restaurants in the United States are franchise operations.

As fast-food workers and labor advocates have been pressuring McDonald’s and other restaurant chains to adopt a $15 wage floor, the companies have often said that they don’t set employee wages, the franchise owners do. That defense would be weakened considerably by the workers’ push to have them declared joint employers.

“Right to work” is the most dishonest phrase in American political discourse. It sounds like it’s defending people’s right to earn a living. But as used by its supporters, it means making it impossible for workers to form an effective union, couched in the language of “freedom” and “choice.”

Specifically, it means laws banning “union shops,” in which everyone in a workplace has to join the union or pay a fee to cover the cost of union representation. Twenty-four states have such laws. All were in the South and West until last year, when Indiana and Michigan enacted them. Michigan’s law was rammed through the Republican-dominated legislature in a lame-duck session last December.

The Michigan law was “pretty devastating for the labor movement,” says Erin Johansson of American Rights at Work. It came in the state where the United Auto Workers’ six-week occupation of General Motors plants in Flint in 1937 won the victory that opened the doors for unions throughout American industry, the state whose union labor defined the working-class prosperity of World War II to the 1970s.

Both Michigan Gov. Rick Snyder and Dick DeVos, the heir to the multibillion-dollar Amway fortune who bankrolled the campaign for the law, stuck to the party line about “freedom.” Snyder said the law would give workers “the freedom to choose” and unions “an opportunity to be more responsible to their workers,” because instead of automatically collecting dues, they’d have to show workers “a value proposition.”

“Absolute horseshit,” responds Ed Ott, former head of the New York City Central Labor Council. “This is a total offensive against workers. They don’t want workers to have any say. After workers vote for a union, they don’t want them to maintain membership.”

This year, “right to work” measures were introduced in 17 states, according to Peggy Shorey, director of state government relations at the AFL-CIO. Ten were defeated, including those in Missouri, Kentucky, and New Hampshire, where Gov. John Lynch vetoed one in 2011. Republicans in the Ohio legislature introduced one in early May, but the state senate president said he didn’t want to give Democrats an issue to raise funds on. (Ohio voters overwhelmingly overturned draconian limits on unions in 2011.) Sen. Rand Paul (R-KY) introduced one in January, but it hasn’t gotten a committee hearing.

“It’s striking that they were not successful in passing it in Missouri,” says Shorey. The most significant measures still pending, she says, are in North Carolina and Pennsylvania. In North Carolina, House Speaker Thom Tillis proposed making the state’s “right to work” law and a ban on public-worker unions an amendment to its constitution, after declaring that he wanted to keep North Carolina “the least unionized state in the United States.” In Pennsylvania, the sponsor is Rep. Daryl Metcalfe, chair of the State Government committee, who also sponsored the state’s voter-ID law and fulminates against “illegal alien invaders.”

Neither measure has made it out of committee, but “after Michigan, anything could happen,” warns Ott.

The Michigan and Indiana laws came as part of the 2011–’12 offensive against worker rights in the upper Midwest, but the concept emerged after the great union victories of the late 1930s. The phrase “right to work” was coined in 1941 by William B. Ruggles, an editorial writer at the Dallas Morning News who didn’t want to join a union. His bosses feared that federal laws and regulations backing union rights were forcing unions down the throats of employers and socializing industry. Ruggles proposed a constitutional amendment guaranteeing the right to work with or without union membership.

Lobbyist Vance Muse, founder of an organization called the Christian Americans, picked up the campaign—but realized that it would be much easier to win state laws than a constitutional amendment. Without such a law, he argued. “white women and white men will be forced into organizations with black African apes whom they will have to call ‘brother’ or lose their jobs.” He also said the law would help “good niggers, not these communist niggers.”

He won support from business groups, and Texas outlawed the union shop in 1943. Arkansas followed in 1944. The Taft-Hartley Act of 1947, which restricted strikes and banned communists from being union officials, specifically allowed states to pass such laws, in its Section 14(b). By 1960, 18 states had done so, and Wyoming, Louisiana, Idaho, and Oklahoma trickled in over the next few decades.

In 1961, the Rev. Martin Luther King, Jr. called “right to work” a “fraud,” saying that it “provides no ‘rights’ and no ‘works.’ …Its purpose is to destroy labor unions and the freedom of collective bargaining.” In 1965, the high-water mark of liberal power in Congress in the last 70 years, the House voted to repeal Section 14(b) of the Taft-Hartley Act, but a filibuster in the Senate preserved the provision.

In today’s network of anti-union think tanks and lobbying groups, the two most concerned with right to work are the National Right to Work Committee and its offshoots, based in Washington’s Virginia suburbs, and the Mackinac Center for Public Policy, in Michigan.

The National Right to Work Committee, founded in 1955, has grown to include a legal offshoot, the National Right to Work Legal Defense Foundation, and the National Institute for Labor Relations Research. Reed Larson, who headed NRTWC for 45 years, touts the Foundation, established in 1968, as the nation’s first conservative litigating organization.

The committee proclaims that it is “dedicated to the principle that all Americans must have the right to join a union if they choose to,” but its masthead motto is “No one should have to be forced to pay tribute to a union boss to get or keep a job.”

Asked what these organizations have done to support the right to join a union, spokesperson Patrick T. Semmens says that there’s no risk that union membership will be outlawed, but “the right not to join or associate with a union…is not currently the law and therefore is our focus.”

In practice, responds Erin Johansson, if a worker complains to the National Labor Relations Board that she was illegally fired for union activity, it can take eight or nine years to get her job back. “We have nothing now. We don’t have a functioning NLRB,” she adds.

Republicans in the Senate have filibustered President Obama’s nominees to the NLRB for years, to prevent if from having a majority that recognizes workers’ legal rights. If the vacant seats are not filled by August, the board won’t have a quorum. In January, a federal court said Obama’s recess appointments were unconstitutional, and voided rulings they participated in. The National Right to Work Foundation filed an amicus brief in that case, the result of a lawsuit filed by the Chamber of Commerce-backed Coalition for a Democratic Workplace.

The Foundation has won several Supreme Court decisions banning unions from using dues collected from nonmembers for activities not directly related to collective bargaining—that is, supporting pro-union candidates or legislation. It’s also represented people who don’t want to join unions or pay dues, and calls strikebreakers “courageous individuals.”

The Foundation’s list of “Big Labor’s Top Ten Special Privileges” includes just about anything that would make a union effective.

It claims that union “monopoly bargaining” is “depriving employees of the right to make their own employment contracts.” In other words, it denies them their right to ask for a raise on their own and not get one—or to undercut the union by agreeing to work for less.

It claims that unions have the privilege to “strong-arm employers into negotiations,” because “unlike all other parties in the economic marketplace, union officials can compel employers to bargain with them.” As opposed to employers’ right to ignore workers or tell them, “you’re fired, don’t let the door hit you in the ass on the way out.”

It claims that union workers have the privilege to “refuse to work while keeping their job,” because they can’t be fired for going on strike. This isn’t exactly true. Employers can’t fire workers striking against unfair labor practices, but they can legally “replace” workers striking for more money. The union movement of the mid-20th century was strong enough so employers rarely did that until after 1981, when President Ronald Reagan fired striking air-traffic controllers. And if employers can fire striking workers, that makes it next to impossible to have a successful strike.

If one wants proof of the union slogan that “right to work” really means “right to work for less,” it’s in a book excerpt posted on the National Right to Work Committee’s Web site. In Stranglehold: How Union Bosses Have Hijacked Our Government, Reed Larson blames the New Deal for establishing the plague of “compulsory unionism.” He writes that the National Industrial Recovery Act of 1933, by setting minimum wages in various industries, “trampled the rights of workers” by denying them the freedom to make a contract to work for less money.

The “right to work” network’s other main argument is that weakening unions stimulates job growth, that jobs are increasing in states with right-to-work laws. As companies often prefer to move to places with the lowest wages and the weakest safety regulations—witness the garment industry’s migration from the Triangle Shirtwaist Company to the Rana Plaza factory in Bangladesh over the last century—this makes sense, although Armelagos says, “companies are still moving out of Indiana.”

It’s harder to sell low wages to the public. In 2012, according to the Bureau of Labor Statistics, the median weekly wage for union workers was $943 a week, compared to $742 for nonunion workers. To get around this, they argue that per capita income in “right to work” states, adjusted for the cost of living, is equal to, almost equal to, or more than it is in “forced union” states.

NLRB drops case as machinists’ union seeks to make the best of a bad situation

Republicans won’t have the National Labor Relations Board’s case against Boeing to kick around anymore – though no doubt they’ll keep flogging its corpse. On Friday, the NLRB announced it was dropping its most famous investigation in years. The union that had brought the case, the International Association of Machinists, asked the NLRB to relent following a compromise reached with management. The IAM is touting its deal as a better alternative than pursuing the NLRB case. They’re right – which is a damning measure of how poorly the Obama administration defends workers’ human rights.

At a time of high unemployment and stagnating wages, the Boeing case shows why it is so hard for workers to collect a larger share of national income. It highlights Republicans’ resolute defense of law-breaking big business, and President Obama’s lack of equivalent fire in defense of the 99 percent. Obama expresses sympathy for the occupation movement But in a case where he might have actually done something for the people who do America’s work, he passed.

At stake was a simple question of law. The NLRB’s complaint (similar to an indictment) against Boeing would never have happened if Boeing hadn’t handed the union a stack of smoking guns: Video and news reports in which executives blamed frequent strikes in Washington state’s Puget Sound region for its 2009 decision to build a new line of airplanes (787s) in South Carolina instead.

The National Labor Relations Act is clear: It prohibits employers from retaliating against workers for protected union activity. Along with punishing people for standing up for themselves, such retaliation discourages co-workers from following suit. But as groups like Human Rights Watch have observed, U.S. companies get away with anti-union retaliation all the time. But whether they’re throwing out union activists or shutting down union factories, they usually don’t come out and say that union activity is the reason why.

Boeing did, so the IAM filed charges last year. In April the NLRB issued a complaint, beginning a process that could have ended in an order for Boeing to undo the retaliation by building 787s back in Washington state. That prompted a full-fledged freakout from the Chamber of Commerce, the GOP presidential field, and congressional Republicans, who threatened to defund the entire NLRB. Rather than defending business retaliation against workers, Republicans pretended that the issue was government retaliation against the people of South Carolina.

The idea that Boeing, as a corporate citizen that has prospered in Washington state, has obligations to the citizens of that state was almost entirely lost. No one articulated the idea that workers have legal rights. Faced with Republicans depicting the NLRB as an out-of-control Soviet-style agency, prominent Democrats mostly hid under their desks. Two month after the NLRB issued its complaint, President Obama appointed a member of Boeing’s board as his new commerce secretary. Asked about the NLRB case at a June press conference, Obama said he shouldn’t comment on the details and then, rather than saying that in general workers need the freedom to go on strike, he said, “As a general proposition, companies need to have the freedom to relocate.”

Meanwhile, Boeing dragged out the administrative law judge hearing that precedes appeal to the full NLRB (and from there to federal court), while congressional Republicans inundated the NLRB’s acting general counsel with demands for documents related to his legal strategy in the case.

But by the time the Machinists reached their contract deal with Boeing instead, it was already clear that the NLRB would not be hearing the Boeing case any time soon. The NLRB, which is supposed to have five members, is currently operating with three, which the Supreme Court has ruled is its minimum quorum. One of the three is a recess appointee whose term expires this New Year’s Eve, giving the company and its political allies every reason to run out the clock.

The NLRB’s politically imposed hibernation could have happened a month earlier if the board’s sole Republican member had followed through on a threat to resign last week to prevent a vote on modest changes to union election rules. Given Obama’s reticence on recess appointments, and Republicans’ declared intention to allow no recesses until next year’s election, Boeing workers would have been waiting a very long time for a shot at justice from the NLRB.

The IAM’s contract with Boeing falls short of justice for retaliation against thousands of workers. Under the deal, which members ratified with 74 percent support on Wednesday, Boeing workers get a four-year extension of their union contract, new job security language, and a commitment that a different upcoming line of airplanes, 737s, will be built in Puget Sound, rather than South Carolina or somewhere else. The wages and benefits under their new deal are outstanding by the standards of recession-era U.S. union contracts, but in keeping with contracts Boeing workers have been winning for decades.

While management attorneys and CEOs have been publicly decrying the Boeing case as an example of an out-of-control agency on an anti-business warpath, in private the former must be telling the latter the obvious: You can generally get away with retaliation if you don’t announce that you’re retaliating. If you do get caught, you can delay the process to a snail’s pace. And when labor law becomes a national political issue, Republicans are far more reliable supporters of management’s prerogatives than Democrats are of workers’ rights.

Steven Greenhouse of the New York Times asked whether the new contract represents a new era of labor peace between Boeing and the IAM. But it looks more like a détente.

“If they can’t housebreak us, they gotta find a way to get away from us,” Boeing strike veteran Jason Redrup told me when I visited Puget Sound in July. Boeing has proven that it’s willing to transfer production in order to reduce union leverage, though the new agreement commits it not to do so on its upcoming 737s. Union members, who’ve struck four times since 1989, will remain ready to do so again come 2016.

Given the new production-transferring weapon Boeing now wields, passing the standard of living the machinists have achieved to future generations of Boeing workers will also depend on their ability to organize non-union Boeing employees in states like South Carolina. Many of the Washington state workers I met emphasized their eagerness to organize their counterparts elsewhere. They have a powerful story to tell, of how generations of workers’ strikes wrung economic security out of a corporate giant. It’s a story that can’t be told enough – and that was hardly mentioned in the national controversy over whether Boeing should have to follow the law.

Josh Eidelson is a freelance journalist and a contributor at The American Prospect and In These Times. After receiving his MA in Political Science, he worked as a union organizer for five years.More Josh Eidelson

Employment Law Roundup: NLRB Union Election Rules, Social Media, Exempt Employees, and More…


For your reference, a roundup of recent updates and news from Employment lawyers and law firms on JD Supra:

On NLRB Changes to Union Election Rules…

NLRB Votes in Favor of Major Changes to NLRA Election Procedures and House Passes “Workforce Democracy” Bill (Morgan Lewis) 

“By a 2–1 vote, the National Labor Relations Board (NLRB or Board) decided to move forward with major changes to the Board’s representation election procedures. The vote adopted a subset of procedural reforms first proposed by the Board on June 22, 2011. The new rules are designed to substantially change—and speed up—the existing union election process, as well as limit employer participation in that process. The adopted rules will take effect after the Board drafts the revised regulatory language and then votes on the final language.” Read more»

NLRB Approves Significant Changes in Union Election Procedures (Schottenstein Zox & Dunn Co., LPA):

“The most significant changes will come in the form of speedier union elections – which could occur within two to three weeks after the filing of a petition, although the specific time frame is left entirely up to the NLRB’s regional offices. The obvious downside is that employers will have little time to discuss the impact of unionization with workers before they vote. Also, employers may have no right of appeal before an election occurs if there are questions of law or fact on who should vote or other legal issues, and employers may have no right to be heard on appeal even if there is some grievous error in the process.” Read more»

NLRB Chairman Issues Proposed Resolution on Election Rules In Advance of Today’s NLRB Meeting (Franczek Radelet P.C.):

“According to an explanation posted by the NLRB, the Chairman is proposing this ‘scaled back final rule’ because of the possibility that the NLRB will lose its quorum. Notably, the resolution only commits the NLRB to draft a final rule incorporating six amendments, and that rule would be finalized, circulated and then subject to approval by a majority vote of the NLRB.” Read more»

The NLRB Issues New “Quickie Election” Rules (Miller & Martin PLLC):

On their face, these changes appear to make ‘good common sense’ as far as streamlining and thereby minimizing the amount of litigation which is related to the union election process. What this ‘streamlining’ means to employers, however, is that the time between the filing of the petition which precipitates an election and the election itself will be substantially reduced. Accordingly, employers who wish to remain union-free will have to be proactive.” Read more»

Inside The Beltway - NLRB’s “Scaled Down” Quickie Election Rule (John Raudabaugh):

“Because unions organize for long periods prior to formally filing a petition for election and because the period between the petition filing and election will now be significantly reduced by as much as three to four weeks, employers are once again advised to ‘campaign’ daily, engage employees now, and be prepared.” Read more»

On social media…

Socially Aware: The Social Media Law Update — Vol. 2, Issue 6 — November 2011 (Morrison & Foerster LLP):

“Online social networking, and its capacity to connect our professional lives to our personal lives, have introduced a variety of new legal issues in the workplace – issues that we explore regularly in Socially Aware. Many managers and supervisors have connected with subordinates on social networking sites, and have likely wondered about the practical and legal implications of doing so. Applying long-standing legal concepts to this new context, a number of potential issues stand out.” Read more»

Take 5 - Views You Can Use - Labor & Employment - November 2011 (Epstein Becker & Green, P.C.):

“A survey cited in The New York Times reported that 75 percent of recruiters research candidates online, and 70 percent of recruiters report that they have rejected candidates on the basis of online information. BNA reports that Edward Loughlin, a trial attorney with the EEOC’s Washington, D.C., Field Office, noted that employers can access through social media a great deal of information that they could not access before and that social media might reveal information showing membership in protected classes. He cautioned that, in reviewing adverse actions in an employment claim, the EEOC will apply the same rules that are applied under traditional Title VII analysis, whether the information was obtained through social media or more traditional means.” Read more»

Can Your Employer Fire You For Facebook and Twitter Posts? – Maybe (Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck):

“The [National Labor Relations] Board, however, refused to extend protection to Facebook and Twitter posts in other cases where the comments did not rise to the level of protected concerted activity. In these cases, the Board considered the subject matter of the comment – was it regarding working conditions or terms of employment; the parties involved in the discussion – was it a discussion amongst multiple employees or just one single employee griping; and e substance of the comment – was is vulgar, threatening or harassing toward other employees or Individuals?” Read more»

On the liability of individual employees…

Personal Liability for Employment Decisions (Robert Haurin):

“Many decisionmakers believe that only their employers can be held liable for making decisions that negatively impact other employees of their organizations. This belief is not always correct. The attached white paper illustrates that some employment decisions can result in personal liability to the decisionmaker.” Read more»

When Employees Steal, The SEC May Punish The Company And The CEO (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“According to the SEC’s complaint, Koss Corporation’s former Principal Accounting Officer and its former Senior Accountant, engaged in a wide-ranging accounting fraud to cover up the PAO’s embezzlement of over $30 million from the company… Yet, the SEC filed a lawsuit against the company and its CEO. So why did the SEC feel compelled to punish the victims?” Read more»

On international employment issues…

Conducting International Employment-Related Investigations (Fisher & Phillips LLP):

“If you are a Human Resources or other manager at a multi-national company, it is likely that at times you receive complaints from employees and others requiring investigations to ensure your workplace environment is free from illegal harassment, discrimination, theft, defamation, violence and other violations of the law and/or company policies. However, those responsible for investigations for global organizations must be aware of statutes, policies, and guidelines in countries and regions outside of the United States that could impact the way investigations must be conducted, the actions that may be taken as a result of investigations, and the decisions regarding whether an incident violated applicable law or workplace policy.” Read more»

Launching a Whistleblower Hotline Across Europe (White & Case LLP)

“Domestically within the US, workplace whistleblower hotlines are a largely uncontroversial “best practice” to which few ever object. But tensions rise when a multinational extends report channels abroad. In Europe in particular, whistleblower hotlines can spark blowback from staff, employee representatives and government enforcers, and can trigger confounding legal issues without US counterpart. To a socially-responsible American, the hurdles impeding European whistleblower hotlines have gotten higher than they should have any right to get.” Read more»

On exempt employees…

The FLSA and Myths of Exemption (Ryan Nalley):

“It is typical for employers who wish to avoid complying with the relevant overtime laws to engage in a variety evasive tactics, such as improperly classifying employees so they appear to fall within certain exemptions from the statutes, or by disguising wages as reimbursements or bonuses—to name just a few of the less sophisticated tactics. While there are legitimate exemptions, in my experience they are less prevalent than many imagine. Moreover, it is the employer’s burden to prove the employee’s exempt status.” Read more»

Pharmaceutical Sales Representative Case Goes to Supreme Court (Franczek Radelet P.C.):

“… the Supreme Court announced that it has granted certiorari in Christopher v. SmithKline Beecham Corp., where the Ninth Circuit affirmed that Christopher, a pharmaceutical sales representative, was an ‘outside salesman’ exempt from overtime under the FLSA. In SmithKline, the Ninth Circuit concluded that it owed no deference to the Secretary of Labor’s current interpretation of the outside sales exemption and, in fact, disagreed with the Secretary’s interpretation. This was in contrast to the Second Circuit’s Novartis decision, which adopted the Secretary’s interpretation.” Read more»

On violence in the workplace…

OSHA Publishes Game Plan for Workplace Violence-Related Inspections (McNees Wallace & Nurick LLC):

“Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services… Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.” Read more»


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After Volkswagen issued a letter in September saying the company would not oppose an attempt by the United Auto Workers (UAW) to unionize its 1,600-worker Chattanooga, Tenn., facility, Sen. Bob Corker (R-TN) was flabbergasted.

“For management to invite the UAW in is almost beyond belief,” Corker, who campaigned heavily for the plant’s construction during his tenure as mayor of Chattanooga, told the Associated Press. “They will become the object of many business school studies — and I’m a little worried could become a laughingstock in many ways — if they inflict this wound.”

Corker isn’t the only right-winger out to halt UAW’s campaign. In the absence of any overt anti-union offensive by Volkswagen, conservative political operatives worried about the UAW getting a foothold in the South have stepped into the fray.

Leaked documents obtained by In These Times, as well as interviews with a veteran anti-union consultant, indicate that a conservative group, Grover Norquist’s Americans for Tax Reform, appears to be pumping hundred of thousands of dollars into media and grassroots organizing in an effort to stop the union drive. In addition, the National Right-to-Work Legal Defense Foundation helped four anti-union workers in October file a complaint with the National Labor Relations Board claiming that Volkswagen was forcing a union on them.

“Everyone is definitely looking at this fight,” the anti-union consultant, Martin (not his real name), told In These Times. “This is the union fight going on right now and everybody [in the anti-union world] is looking to play their part and get compensated for playing their part.”

The last VW plant where workers don’t have a voice

As the only major VW plant in the United States, Chattanooga is also the only plant whose workers have no opportunity to join German-style “works councils” — committees of hourly and salaried employees who discuss management decisions, like which plant will make specific car models, on a local and global scale.

Organizing with the UAW, workers say, would help them to both form new works councils and gain representation at existing ones — which, in turn, would attract more jobs to the area.

“I personally feel like not having a union and not participating in a works council is going to do more damage for future expansion and new product development in Chattanooga than any unionization would do,” says Volkswagen employee Justin King. “The way VW works on the international level, [management] almost expects to work with a union. Now, we aren’t able to say, ‘Hey we would like to build that new SUV, or we would like to hire some new workers.’ We are only hurting ourselves by not going union.”

Workers also say having a union would help the plant be more efficient. “On the assembly line, the process changes each year because [of] new models,” says worker Chris Brown. “A voice in the company would help smooth the process from year to year.”

Beyond this, VW employees feel that organizing could help address their problems with corporate policy, including the fact that nearly one-fifth of workers at peak times in auto production have been temporary employees. Temporary employees’ starting wages are more than two dollars an hour lower than full-time employees’, and their healthcare and retirement benefits are much less robust, says the UAW.

According to Brown, approximately 200-300 “temps” are currently employed in the VW factory — and the UAW says they can remain classified as temporary even if they work at VW for years.

“I am friends with these people, and they want a job. Some of these people have been there for 18 months as a temp and that’s just … wrong,” says Brown. “If this is a job that I do, they should be making the pay that I make. [They] should have the same job security that I have as an employee.”

Fellow employee Lauren Feinauer agrees that a union would improve workers’ communication with management. “We heard a lot in the beginning about how VW works with their employees: close relationships and a lot of communication. I know there is a lot of that going on, but I think some of the VW way got lost in translation,” she says. “This is why we want a union.”

This September, the UAW announced that a majority of VW workers have signed up to join the union. But according to the UAW, it and VW still have yet to agree on a process for recognizing the union. That has left time for outside anti-union forces to try to dissuade workers from joining the UAW — time that many of those groups have capitalized upon.

Anti-union consultants get in the game

In a proposal dated Aug. 23, 2013, which was presented to a prominent anti-union group before being leaked to In These Times, Washington, DC-based consultant Matt Patterson outlined a vision of how anti-union forces can work with community groups to persuade VW workers that organizing is not in their long-term economic interest.

In the report, Patterson explained his approach thus far to laying the groundwork for an anti-union campaign, which he calls the “Keep Tennessee Free Project,” in Chattanooga. From last May to August, he said, he “leveraged a $4,000 budget into a deep and effective anti-UAW campaign that received national media attention, pressured politicians to issue public statements against unionization, forced the union to expend resources to counter our efforts, developed an extensive intelligence network that stretched from Chattanooga to Germany to Detroit and brought the terrible economic legacy of the UAW to the forefront of the debate.”

Patterson claimed that during the summer, he generated 63 stories denouncing the UAW effort in Chattanooga. In three months, he said, he was able to build a media echo chamber that now hammers Chattanooga with anti-union messaging on a regular basis.

And such remarks aren’t idle boasting. The fruits of Patterson’s anti-organizing crusade have appeared in the National ReviewForbes and local Chattanooga TV station WDEF 12, in addition to a host of smaller conservative talk radio shows.

But he didn’t stop there — he also gathered grassroots support. “Within a few weeks,” he wrote, “I had organized a coalition consisting of members of the Tea Party, Students for Liberty, former VW employees, politician and businessmen to craft and deliver a consistent message that has shaped public opinion.”

H/T: BillMoyers.com

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics – and a handful of liberal ones – who had accused Mr. Obama of improperly claiming that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents when it has become increasingly difficult for presidents to win Senate confirmation for their nominees. In recent years, senators have more frequently balked at consenting to executive appointments. President George W. Bush made about 170 such appointments, including John R. Bolton to be ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

“If this opinion stands, I think it will fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled,” said John P. Elwood, who handled recess appointment issues for the Justice Department during the Bush administration. “This is certainly a red-letter day in presidential appointment power.”

Think Obama has a hard enough time appointing people now? Imagine how hard it’ll be if the ruling stands. FWIW, it cuts back a loophole in the current law that allows the president to appoint politicians without Senate approval, by scaling back the definition of the word “recess” in regards to executive power.

UNLESS something changes in Washington, American workers will, on New Year’s Day, effectively lose their right to be represented by a union. Two of the five seats on the National Labor Relations Board, which protects collective bargaining, are vacant, and on Dec. 31, the term of Craig Becker, a labor lawyer whom President Obama named to the board last year through a recess appointment, will expire. Without a quorum, the Supreme Court ruled last year, the board cannot decide cases.

What would this mean?

Workers illegally fired for union organizing won’t be reinstated with back pay. Employers will be able to get away with interfering with union elections. Perhaps most important, employers won’t have to recognize unions despite a majority vote by workers. Without the board to enforce labor law, most companies will not voluntarily deal with unions.

If this nightmare comes to pass, it will represent the culmination of three decades of Republican resistance to the board — an unwillingness to recognize the fundamental right of workers to band together, if they wish, to seek better pay and working conditions. But Mr. Obama is also partly to blame; in trying to install partisan stalwarts on the board, as his predecessors did, he is all but guaranteeing that the impasse will continue. On Wednesday, he announced his intention to nominate two pro-union lawyers to the board, though there is no realistic chance that either can gain Senate confirmation anytime soon.

For decades after its creation in 1935, the board was a relatively fair arbiter between labor and capital. It has protected workers’ right to organize by, among other things, overseeing elections that decide on union representation. Employers may not engage in unfair labor practices, like intimidating organizers and discriminating against union members. Unions are prohibited, too, from doing things like improperly pressuring workers to join.

The system began to run into trouble in the 1970s. Employers found loopholes that enabled them to delay the board’s administrative proceedings, sometimes for years. Reforms intended to speed up the board’s resolution of disputes have repeatedly foundered in Congress.

The precipitous decline of organized labor — principally a result of economic forces, not legal ones — cemented unions’ dependence on the board, despite its imperfections. Meanwhile, business interests, represented by an increasingly conservative Republican Party, became more assertive in fighting unions.

The board became dysfunctional. Traditionally, members were career civil servants or distinguished lawyers and academics from across the country. But starting in the Reagan era, the board’s composition began to tilt toward Washington insiders like former Congressional staff members and former lobbyists.

Starting with a compromise that allowed my confirmation in 1994, the board’s members and general counsel have been nominated in groups. In contrast to the old system, the new “batching” meant that nominees were named as a package acceptable to both parties. As a result, the board came to be filled with rigid ideologues. Some didn’t even have a background in labor law.

Under President George W. Bush, the board all but stopped using its discretion to obtain court orders against employers before the board’s own, convoluted, administrative process was completed — a power that, used fairly, is a crucial protection for workers. In 2007, in what has been called the September Massacre, the board issued rulings that made it easier for employers to block union organizing and harder for illegally fired employees to collect back pay. Democratic senators then blocked Mr. Bush from making recess appointments to the board, as President Bill Clinton had done. For 27 months, until March 2010, the board operated with only two members; in June 2010, the Supreme Court ruled that it needed at least three to issue decisions.

Under Mr. Obama, the board has begun to take enforcement more seriously, by pursuing the court orders that the board under Mr. Bush had abandoned. Sadly, though, the board has also been plagued by unnecessary controversy. In April, the acting general counsel issued a complaint over Boeing’s decision to build airplanes at a nonunion plant in South Carolina, following a dispute with Boeing machinists in Washington State. Although the complaint was dropped last week after the machinists reached a new contract agreement with Boeing, the controversy reignited Republican threats to cut financing for the board.

In my view, the complaint against Boeing was legally flawed, but the threats to cut the board’s budget represent unacceptable political interference. The shenanigans continue: last month, before the board tentatively approved new proposals that would expedite unionization elections, the sole Republican member threatened to resign, which would have again deprived the board of a quorum.

Mr. Obama needs to make this an election-year issue; if the board goes dark in January, he should draw attention to Congressional obstructionism during the campaign and defend the board’s role in protecting employees and employers. A new vision for labor-management cooperation must include not only a more powerful board, but also a less partisan one, with members who are independent and neutral experts. Otherwise, the partisan morass will continue, and American workers will suffer.

William B. Gould IV, a law professor at Stanford, was chairman of the National Labor Relations Board from 1994 to 1998.

Within the next eight days, the National Labor Relations Board plans to vote on a crucial rule that would speed up union elections—a change that’s drawn serious opposition from the US Chamber of Commerce and Republican politicians. Unions are very eager to see the law passed, since employers will often delay union elections until they can quash the organizing drive through intimidation or other means.

The NLRB has only three of five seats filled because of Republican obstruction in the Senate, and with two of those seats being held by Democrats, passage of the rule would seem likely. But there’s one way Republicans can stop this—and they might be on the brink of doing it.

In 2010, the Supreme Court ruled that the NLRB cannot function with only two members, as it did for a brief period at the end of President Bush’s term and the beginning of President Obama’s. The Court found that two members do not constitute a quorum, and invalidated everything the NLRB did during that time.

So in order to stop the union election rule, which is scheduled to be held by November 30, the lone Republican member can simply resign, and poof—no NLRB. This possibility was first flagged Monday by Mike Elk at In These Times, and today The Hill obtained a letter from NLRB Chairman Mark Pearce to the panel’s only Republican, Brian Hayes. The letter clearly indicates that Hayes has threatened to resign:

“In mid-October, I specifically discussed with you a potential schedule for consideration of the rulemaking. You did not offer any alternative schedule,” Pearce wrote in the letter to Hayes. “Instead, you indicated that, if the board proceeded with consideration of the matter, you would consider resigning your position.”

The obvious disadvantage of the resignation scheme, from a Republican point of view, would be that President Obama then gets an extra appointment to the NLRB. But Republicans have been so successful at blocking these nominations they might not be concerned about this possibility—and if Obama loses the 2012 election, it becomes a moot point.

In fact, Republican obstruction in the Senate might kill the NLRB at the end of this year anyhow. The term of Craig Becker, who President Obama put on the board with a recess appointment, will expire when Congress adjourns for the year. If Republicans can prevent Obama from making another recess appointment—as they’ve successfully done in the case of the Consumer Financial Protection Bureau—then the NLRB shuts down.

But for now, the goal is to kill the union election rule—and Republicans may be poised to hit the resignation kill switch. 

Rethuglicans playing politics with union rules as usual and to keep the NLRB from functioning at all (thanks to the minimum of 3 members for quorum rule).

h/t: George Zornick at The Nation

In a move eagerly anticipated by labor and dreaded by employers, the NLRB today issued its decision in Specialty Healthcare. I’ve referred to this case several times over the last few months, and for good reason. The case presented the NLRB with a chance to redefine what constitutes a unit of employees that’s appropriate for bargaining.

The NLRB seized the opportunity to, in the words of board member Brian Hayes’s withering dissent, “define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included” (emphasis added).

In other words, a union may now cherry-pick for organizational purposes only those employees it believes support the union, and the burden falls on the employer to show that other employees should be in the unit because the excluded employees share an overwhelming community of interest with the union’s cherry-picked employees.

Bottom line: It will be significantly easier for unions to organize almost any workplace, thus stemming the steep decline in private-sector union membership. Workplaces previously thought by employers to be insulated form organizational efforts now are much more vulnerable, almost as vulnerable as they would have been had the Employee Free Choice Act passed.

If Boeing’s board was making a business decision, rather than a political and ideological one, the choice was obvious: A second Everett line would save the company billions of dollars and months if not years of delays, resulting in higher productivity, higher quality, and higher profits. That’s Boeing’s own conclusion. Boeing doesn’t even significantly save on wages in non-union South Carolina—according to Machinists spokesman Bryan Corliss, entry level workers in South Caroline are paid only 30 cents an hour less than their counterparts in Everett. Add that to the fact that according to Boeing’s own analysis, the Charleston line presented a “high risk to program execution,” and there’s an argument to make that any choice but Everett would amount to corporate malpractice.

Unless, of course, the main rationale driving Boeing’s decision was never higher productivity, higher quality, and higher profits.

At some point, years ago, Boeing’s Chicago-based executives decided to move production out of Washington and into a non-union state. The Project Gemini documents outline all the many risks and costs involved, and yet Boeing proceeded anyway, because the goal was never as much to speed up production and improve profitability as it was to “create long-term change in union leverage.” And despite Boeing’s disingenuous claims to the contrary, it’s a decision that will cost the Puget Sound region thousands of middle class jobs.

@AFLCIO @UAW - The anti-worker Republicans are at it again.  Slandering unions, the NLRB, and my profession (union organizing) in attempt to push another anti-union bill.  This time on the Federal level.  They want to force unions to have a vote every 3 years to exist, force unions to stay out of politics, and increase penalties against unions that break labor law, citing intimidation by union organizers.  The Republican disconnect from what working families want and need continues…

Found out about this via Steven Greenhouse’s twitter: @greenhousenyt

From The Washington Times:

Legislation would require workers to reaffirm unions with votes every 3 years

In an effort to loosen labor’s grip on workers, two GOP lawmakers want legislation that would require workers to re-affirm the existence of their unions with new votes every three years.

Sen. Orrin G. Hatch of Utah and Rep. Tim Scott of South Carolina are pushing the Employee Rights Act that also would place limits on strikes, how fast a union can organize and how membership fees may be used to support political candidates. The bill has yet to receive a committee hearing in either chamber.

“It’s neither anti-union, nor pro-employer,” Mr. Hatch told The Washington Times. “It’s pro-worker.”

The move comes as unions are showing new signs of a turnaround in growth. The number of members spiked by about 50,000 workers to nearly 14.8 million in 2011, according to the Bureau of Labor Statistics. That follows two years of declining membership, during which unions lost nearly 1.4 million workers.

Conservative groups are joining in the fight to handicap unions. The Center for Union Facts recently started running a $10 million campaign to promote the bill. The advertisements are running in the District and were aired nationally on Fox News during the South Carolina presidential primary debate.

Supporters of the bill are taking a new approach. Rather than pitting unions against businesses, they are spinning it as unions against workers.

“There’s not a single provision in this bill that will empower employers at the expense of the union,” Mr. Hatch said. “The only parties whose position will be improved by the Employee Rights Act are employees.”

They paint a picture of workers in the middle of a spectrum, surrounded by businesses on the right and unions on the left.

“It’s about time we start worrying about the employees and the workers, rather than unions and management people,” Mr. Hatch said. “It is fair to both employers and unions, and, far more importantly, it’s fair to workers.”

Secret-ballot elections, instead of card checks, would be the voting method of choice under the Employee Rights Act, which was introduced last August in both chambers.

Few workers - less than 10 percent of union members - vote to organize. Instead, most workers join an existing union as a condition of employment.

This bill, however, would give workers a chance to voice their opinions. Union officials would be up for re-election every three years. At that time, employees could decide whether to keep or eliminate their union.

“My goal is to make sure that employees of a company make the decision on joining unions,” Mr. Scott said. “This just gives them an opportunity to say, ‘Yes, I want to be a part of the union.’ “

“Voters get to choose senators every six years, they decide on the president every four years, and on me every two years,” he said. “To me, it makes sense that union members should decide on their leaders at least every three years.”

Mr. Hatch agreed.

“I think the right of an individual to not join a union is just as essential as the right to unionize,” he said.

In the instances of nonunion workplaces that want to organize, the bill would require a minimum of 40 days between the time a petition is filed and a vote is taken. That would give employees time to hear from both unions and employers before they decide.

This provision comes in response to the National Labor Relations Board’s recent decision to speed up union elections, including in some cases to less than 10 days.

“Nobody has enough time in 10 days to decide the benefits and the negatives of joining a union,” Mr. Scott said.

The bill would also combat strikes. It would streamline the federal process, requiring a majority of union members to approve a strike.

“Strikes can be damaging,” Mr. Hatch said. “Employees lose work and may not get back to work. Shouldn’t they at least have a chance to vote on whether to go on strike?”

He pointed out that strike funds, which provide financial assistance to union members during work stoppages, rarely pay more than 20 percent of an employee’s salary. And they usually have to be actively involved in the strike, such as on the picket line, to get that money.

Unions also would be required to receive written consent from each member before donating portions of their membership fees to political candidates. This would be determined individually, member by member, so some members could agree to support a certain candidate, and others could decide against it. Their money would be split up.

Union membership is split fairly evenly between Democrats (49 percent) and Republicans (47 percent). But 93 percent of campaign contributions go to Democratic candidates.

“I’d like anyone who would oppose this provision to explain to me why it is fair to force workers to contribute to political campaigns at all, regardless of the party on the receiving end,” Mr. Hatch told the Senate when he introduced the bill in August.

The penalities would also be updated, so unions that violate labor laws are held to the same disciplinary measures as businesses that do so.

“We’ve all heard the accounts of unions obtaining signatures through deception and intimidation,” Mr. Hatch said.

The AFL-CIO and SEIU did not respond to requests for comment.