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.
Obama also set to make recess appointments to the NLRB | Greg Sargent
washingtonpost.comIt 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.
Bad news organizers,
nytimes.comand yet an emphasis on why solidarity unionism is evermore essential & urgent as compared to going through the bureaucratic processing of the NLRB.
So my Sister works at the NLRB
seattletimes.nwsource.comEvidently Lynda gets to keep her job
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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BREAKING: Obama To Make Recess Appointments To National Labor Relations Board
thinkprogress.orgPresident Obama is planning to announce today that, in addition to his recess appointment of former Ohio Attorney General Richard Cordray as the first director of the Consumer Financial Protection Bureau, he will also use his recess appointment powers to place Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn to the National Labor Relations Board.
Like the CFPB, Republicans have spent the past year blocking nominations to the NLRB in an effort to keep the agency from functioning. Those efforts would have paid off soon, since after Craig Becker’s term on the board expired this week, the NLRB would have been reduced to two members, which is the number it had for more than two years from 2008 to 2010. This effectively shuts down the board, since the Supreme Court ruled in 2010 that two members does not constitute a legal quorum, and thus, a two-member board can’t make binding rulings.
Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.
Republicans have shown outrage at Obama for using his recess appointment powers with Consumer Financial Protection Bureau director Richard Cordray, and similar outrage is likely to follow the news of the NLRB appointments. But the past three Republican presidents also made recess appointments to the NLRB. Ronald Reagan and George H.W. Bush each made three recess appointments to the NLRB, while George W. Bush made seven such appointments.
H/T: Travis Waldron at ThinkProgress Economy.
Could the presidential recess appointment be a thing of the past? A federal court today struck down three of Obama's recess appointments, deciding the case broadly enough that it could change one of the executive branch's biggest workarounds against Congressional inaction. More:
nytimes.comThe 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.
NLRB Advances Union Rule Despite GOP Board Member’s Threat To Quit | TPMMuckraker
tpmmuckraker.talkingpointsmemo.comUpdated: Nov. 30, 4:30PM
Despite threats from the sole Republican member of the National Labor Relations Board that he’d quit over a controversial union elections law, the board voted two-to-one on Wednesday to advance part of a rule that union leaders said would decrease delays in the elections process.
The board only voted on portions of the rule that would limit litigation surrounding elections. But GOP member Brian Hayes said that the board’s decision to advance the rules went against tradition.
“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.
“Regardless of whether a two member majority has the technical authority to act or whether there is no internal rule expressly applicable to this situation, I believe the change in current law and procedure without three affirmative votes would be contrary to the spirit of the board’s deliberative traditions, established and honored over decades… and that such actions will ultimately cause harm to the agency and the constituents that we serve,” Hayes continued.
Hayes noted that the upcoming expiration of another board member’s recess appointment would reduce the board to two members, denying them quorum for an indefinite period.
“With all due respect, this is not an emergency situation,” Hayes said. “Board members come and go under our statutory plan. Their timely replacement is a matter for the president and the United States Senate to arrange. In fact, two board member nominations have been pending in the Senate since January of this year. Inaction or disagreement on the nominations is not by itself a justification for preemptive or perceptive rule-making action by two of three sitting board members.”
“Further, no matter how passionately my colleagues believe that the proposed rule will right some fundamental wrong, I trust that they are fully aware that on some quadrennial occasion, the partisan pendulum will swing and the very precedent that they established by changing the law with only two votes may facilitate reversal of that law, presuming Congress does not act first,” Hayes said.
As the Associated Press reported, Hayes absence would have brought the board to a standstill:
But the board’s lone GOP member, Brian Hayes, has threatened to quit the agency over his objection to the planned rules, an unprecedented move that would render the board powerless to approve any new measures at all. The board needs at least three members to make any decisions.
If Hayes leaves, only two members — both Democrats — would remain instead of the five members it’s supposed to have. Congressional Republicans have blocked President Barack Obama from filling the other two vacancies at the board.
The board hasn’t yet finalized the rule, and a resignation by Hayes would still effectively block the measure. But he indicated Wednesday that he’s weighed and rejected that option.
“Some say collective bargaining is antithetical to the economy. I don’t buy that at all. [The National Labor Relations Act] was a statute that worked. It created the middle class. It created good jobs.”
—Wilma B. Liebman, outgoing chairwoman of the National Labor Relations Board, quoted in Leaving Labor Board, Liebman Responds to Critics - NYTimes.com
She says recent criticism of the board has been “grossly out of proportion to what has happened and what has been done.”
Still a fan of unions? Those cheaters
nationalreview.comIn 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.
Boeing... Boeing... Gone: Documents Reveal Boeing's Long-Term Strategy to Move Jobs out of WA | Slog
slog.thestranger.comIf 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.
Congress passes anti-worker bill: Workforce Democracy and Fairness Act
dcemploymentlawupdate.comAs expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution.
As previously discussed, the Workforce Democracy and Fairness Act would set forth eight separate factors that the Board would use to assess whether a group of employees share the requisite “community of interest” to be considered an appropriate bargaining unit. The Board would be required to make this determination before an election takes place. These eight factors are: (1) similarity of wages, benefits, and working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer’s organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry. If an employer seeks to add or “accrete” additional employees to an existing bargaining unit, it would need to prove that there exists an “overwhelming” community of interest between the additional employees and those in the existing unit, and that the additional employees “have little or no separate identity” from the established unit. The Act seeks to avoid the proliferation of “micro” bargaining units by stipulating that “employees shall not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”
The purpose of these provisions is to overturn the Board’s decision in Specialty Healthcare, in which the Board held that a union’s petitioned-for bargaining unit shall be deemed appropriate so long as that unit consists of a clearly identifiable group of employees, thus making it significantly easier for smaller, more fragmented units to be certified.
In addition, the bill would codify the following election procedures:
- Following the filing of a representation petition, employers would have at least 14 days to prepare for a pre-election hearing.
- Parties would be permitted to raise relevant and material pre-election issues as the pre-election hearing record is developed. Such pre-election issues “shall include, in addition to unit appropriateness, the Board’s jurisdiction and any other issue the resolution of which may make an election unnecessary or which may reasonably be expected to impact the election’s outcome.”
- Parties would be entitled to raise independently any issue or assert any position at any time prior to the close of the hearing.
- The date for an election would be set no sooner than 35 days after the petition is filed.
- An employer would provide the union with a list of eligible voters (the “Excelsior” list) no sooner than 7 days after the Board determines the appropriate bargaining unit.
- Employees would be allowed to decide in writing which one form of personal contact information is to be provided to the union.
The House rejected the four amendments offered by Democratic lawmakers.
While the bill was readily approved in the House, it is unlikely to advance in the Democrat-controlled Senate.
Many of these provisions would serve as a preemptive strike against the NLRB’s rulemaking efforts to alter the representation election process. The NLRB is expected to issue a final rule that while less sweeping than the original proposal, would still serve to expedite the election process and deprive employers of certain procedural rights. Namely, the resolution discussed during the Nov. 30 meeting would limit the matters that would be resolved at a pre-election hearing; limit the filing of post-hearing briefs; delay Board review and resolution of pre-election issues – including questions of voter eligibility – until after an election is already conducted; and significantly narrow the circumstances under which a request for special permission to appeal to the Board would be granted, among other changes. Anticipating that the Board will lose its quorum at the end of the year when Board Member Craig Becker’s recess appointment ends, Chairman Mark Pearce announced that he was “putting forward a more limited resolution at this time,” although “other portions of the original rule will remain under consideration by the Board for possible future action.”
The Board approved by a 2-1 vote Chairman Mark Pearce’s resolution to amend the election procedures. According to Pearce, this approval is an “interim step” and a final version will be presented to the Board to consider. During the public meeting, dissenting Board Member Brian Hayes – who stated at the meeting today that he was not going to resign his position on the Board – claimed that under the proposal, the time period between the filing of a petition and an election would be shortened. In addition, Hayes argued that the rule would deprive employers of the opportunity to present their position regarding union representation. Another criticism Hayes raised is the fact that the Board has advanced this rule in a “far, far too truncated a procedural manner.”
Dennis Kucinich nailed it:
The right to organize is a fundamental right in a Democratic society. In fact, workers’ rights are human rights. This bill seeks to frustrate workers rights to an election through attacking the National Labor Relations Board (NLRB).
Today, workers have to wait an average of 101 days to cast a ballot in an election. One hundred and one days to wait for union representation. How long should workers have to wait to be able to assert their fundamental rights in a democratic society if we really believe in democracy?
Some of us believe that when a majority of workers want to be able to have a union, they should be able to do so forthwith. We believe in government of the people. Why, then, would corporations want to block or frustrate the right of workers to organize? I think it’s obvious.
When workers are organized they have the ability to be able to participate in being able to say what their wages are worth. This is about wages, it’s about benefits, it’s about workplace safety, and about working conditions. Workers’ rights are human rights.
This assault on the NLRB is translated into a fundamental assault on our democracy. If we believe in a democracy, then we believe in a right to organize, a right to strike, a right to collective bargaining, a right to decent wages and benefits, a right to a secure retirement, a right to workers to participate in a political process.
This is America. Let’s lift up the standard of workers, not attack it by making the day of their election and claiming a union farther and farther away, almost to the point of nullification. Stand up for the American workers.
Employers’ Social Media Policies Come Under Regulatory Scrutiny
nytimes.comThe US National Labor Relations Board has ruled that private organizations cannot ban “disrespectful” posts that criticize the employer if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.
However, offensive posts by employees who are venting personal feelings rather than taking concerted action to improve conditions are not protected by federal law.
Via NYTimes.com
Obama re-nominates his unconstitutional NLRB appointees
After being smacked down in Federal court for his unconstitutional appointments to the National Labor Relations Board, President Obama is re-nominating his appointees. This time, they will have to get Senate approval before going to work.
from the Hill:
President Obama on Wednesday asked the Senate to confirm two members of the National Labor Relations Board (NLRB) whose recess appointments were ruled unconstitutional.
Obama sent the Senate a package of nominations that included NLRB Members Sharon Block and Richard Griffin, who were both installed at the agency in a show of power that was ruled invalid by a federal court.
The U.S. Court of Appeals for the D.C. Circuit ruled last month that Block and Griffin’s recess appointments to the NLRB were unconstitutional. Since then, Republicans have sought to challenge decisions made by the labor board during the tenures of Block and Griffin, which began in January 2012.
Forty GOP senators sent a letter Block and Griffin last month urging them to step down. Sens. Lamar Alexander (R-Tenn.), John Cornyn (R-Texas) and Mike Johanns (R-Neb.) have also introduced legislation that would freeze work at the NLRB and the Consumer Financial Protection Bureau (CFPB) due to the controversy over the recess appointments.
The White House said it disagrees with the court ruling. The administration is expected to appeal the decision.
I think the GOP should block the nominations and urge the courts to invalidate the hundreds of regulations that these unconstitutional appointees have made in the last few months.
