NLRB Re-Issues Controversial "Quickie" Union Election Rule

On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule.  As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012.  The reissued "quickie" election rule would substantially shorten the time between the filing of a petition and the election to determine whether the union will represent employees--from  approximately 42 days to as little as 10 to 14 days.

The D.C. District court struck down the rule in 2012 for procedural reasons. The Board initially issued the rule in 2011, but its implementation was stayed as a result of a decision of the United States District Court for the District of Columbia, which held that the rule had been improperly adopted with only two Board member votes, rather than statutorily required three Board member votes, under the U.S. Supreme Court's landmark 2010 decision in New Process Steel.  Since July 2013, however, when the U.S. Senate confirmed President Obama's new appointees, the Board has operated with a full five members for the first time since 2007.

How The "Quickie" Election Rule Would Change Union Elections

Under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes, they do not. During the pendency of the election (which is currently about 40 days), employers have an opportunity to “campaign” against unionization by providing employees with information about the union, its tactics, and the costs and disadvantages of joining a union. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.

Under the proposed rule, however, the already short campaign period will be further compressed to as few as 8 to 10 days, resulting in the union getting a quick vote before the employer can make its case against unionization. This means that employees will be voting based on the information provided to them by the union, which is less than complete and somtimes less than factual. The rule also requires employers to provide the union with voter lists in electronic form, including telephone numbers and email addresses. The new rule will also defer most aspects of litigation (such as contesting the appropriateness of the bargaining unit) and any appeals until after the election.

Unions currently win a majority of elections - approximately 69% in 2012. Even without the “quickie” election rule, the Board holds elections promptly: the median in 2010 was 38 days, and 95.1% of elections were held within 56 days. The rule seems unnecessary to meet its stated goal of “more effectively administering the NLRA” and “removing barriers to the fair and expeditious resolution of questions concerning representation.” Instead, its true goal simply appears to be to increase unionization.

Speak Now And Expect Litigation Later

Comments on the proposed rule are due by April 7; the Board will hold a public hearing the same week.  Should the rule be enacted, litigation to challenge the rule on various grounds is likely.  And as always, stay tuned to Stoel Rives World of Employment Law blog for further updates.

Obama NLRB Presents Employers With Several Lumps Of Coal

We continue our recent end-of-year postings (on new California employment laws and things every employer should resolve to do in 2013) with an update on recent cases by the National Labor Relations Board ("NLRB" or "Board").  In late December, 2012, the NLRB issued a series of controversial decisions which from an employer’s perspective cannot be considered Christmas presents.  While some of these cases impact only narrow circumstances, each of the decisions dramatically changes the law, always in ways adverse to employers. 

The Board's December 2012 Decisions

In Alan Ritchey, Inc., the Board created an entirely new obligation for employers operating a workplace where a union has been recognized or certified, but no collective bargaining agreement has yet been agreed to. In this setting, the Board concluded, an employer must notify the union and provide it with an opportunity to bargain over individual discretionary discipline before the discipline is imposed. The Board made clear that this obligation requires sufficient advance notice for meaningful bargaining. Moreover, the employer must respond to union requests for information regarding the discipline before such meaningful bargaining can occur. The Board dismissed concerns that the new obligation it had created would be unduly burdensome for employers, suggesting that there may be circumstances in which an employee could be removed from a job prior to bargaining, when leaving employee on the job might present “a serious imminent danger to the employer’s business or personnel.”

In WKYC-TV, Inc., the Board reversed fifty year old precedent and concluded that even after a collective bargaining agreement contract has expired, the employer remains obligated to collect union dues. The general rule has long been that when a collective bargaining agreement expires, the employer must continue to abide by the contract because its terms and conditions represent the status quo, and the employer is not entitled to change the status quo until the parties have reached a new agreement or have bargained to impasse. For fifty years, one of the few exceptions to that rule has been the so-called “dues check off,” which enables employees to pay their union dues through payroll deduction. Recognizing that under the National Labor Relations Act the underlying obligation for employees to be members of the union expired with the expiration of the collective bargaining agreement, the Board had long held that the obligation to collect dues for the union similarly expired. In WKYC-TV, the Board concluded that there was no relationship between the employees’ obligation to maintain union membership, and the employers’ act of collecting dues to pay for their membership.  The Board then held that employers must continue to collect dues for the union.

The Board also issued decisions that will affect a more limited number of employers. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over a “public charter school” operated by a non-profit corporation. In Latino Express, the Board changed various aspects of how it implements back pay awards. If these issues are of concern to you, please contact your Stoel Rives labor lawyer.

Finally, in American Baptist Homes of the West d/b/a Piedmont Gardens, the Board overruled a 35-year old precedent and concluded that employers were not entitled to keep witness statements confidential from a requesting union. Under the Act, employers have the obligation to furnish the union with information relevant to employees’ terms and conditions of employment. This includes information relevant to specific instances of discipline, including information pertaining to witnesses to the incident leading to discipline. Since the late 1970s, however, the Board had recognized that this obligation did not extend to formal witness statements collected by an employer, where an employee had been promised confidentiality and reviewed and approved the witness statement. In Piedmont Gardens, the Board rejected this rule, instead concluding that witness statements are merely another type of confidential information, about which employers must balance their confidentiality concerns with the union’s need to review the information. Even when the employer has legitimate confidentiality concerns, the employer must be willing to bargain with the union about a possible accommodation to address the union’s need for the information.  The Board was unconcerned about the possibility for intimidation or coercion of witnesses, in the absence of clear proof.

What Do These Decisions Mean For 2013?

Each of these decisions is a radical departure from existing law, as the Board implicitly acknowledged. In all three, the Board expressly overruled prior case law.  Moreover, the Board admitted that it would work an injustice to apply the decisions in Alan Ritchey, WKYC-TV and Piedmont Gardens retrospectively. Thus, the new obligations created in those cases will only be applied to cases occurring after the decisions were issued.

Prospective application is cold comfort to employers now attempting to deal with these cases on an ongoing basis. The Alan Ritchey decision provides little guidance as to what might amount to the “exigent circumstances” preventing removal of the employee prior to the bargaining the Board now requires. Moreover, the decision is unclear as to the extent and duration of that bargaining. The Board did not address, for example, the delay that could be caused by responding to union information requests prior to such bargaining. Perhaps even more troubling, the Board seemed unconcerned about the fundamental revision it was making to the terms and conditions of employment it ordered for affected employees. Even though never yet covered by any collective bargaining agreement, these at-will employees were no longer truly at-will employees.

WKYC-TV offers no offset for the bargaining leverage taken away from the employer, which must now continue to provide financial support to the union with which it is involved in contract negotiations, regardless how acrimonious those negotiations might be. In Piedmont Gardens, the Board appeared unwilling to give any credence to the notion that bargaining unit employees may face coercion or retribution from their union or their pro-union co-workers if their identity must be revealed to the union.

Finally, employers must carefully consider what the Board’s actions imply for what may be in the future. The Obama Board has demonstrated a complete willingness to reverse decades-old precedent, so long as overturning that precedent helps unions. The recent Board cases emphasize that employers dealing with unions are entering an era of unprecedented uncertainty. For example, Alan Ritchey arose only in the context of a newly certified union, bargaining for its first contract. Will the Board extend Alan Ritchey to cases arising after a collective bargaining agreement has expired, before a successor agreement has been finalized? Given the Obama Board’s willingness to change well-settled rules, employers should proceed continuously when determining their next steps. If you face any of the issues raised by these recent Board actions, you should your contact your Stoel Rives labor lawyer.

11th Circuit Disagrees With NLRB And Finds Nurses Are "Supervisors" In Lakeland Health Care Decision

Several weeks ago the U.S. Court of Appeals for the 11th Circuit weighed in on the ongoing debate in labor law over the definition of who is a “supervisor,” and therefore not eligible to join a union, under the federal National Labor Relations Act (“NLRA”). The opinion, Lakeland Health Care Associates , is but the latest installment in an area of labor law that has been evolving over at least the past decade.  While this line of cases, including Lakeland Health Care, are specific to the “supervisor” status of nurses working in the residential care industry, the relevant legal tests are the same for all industries. Employers who may wish to oppose unionization efforts among employees it believes are supervisors will therefore want to continue to pay close attention to these cases to see what could be done to maximize the chance that the National Labor Relations Board (“NLRB” or “Board”) would also find those employees are supervisors. 

LPNs Supervise Other Employees, But Are They “Supervisors” Under The NLRA?

As with many things in labor law, determining who is a “supervisor” is rarely straightforward: simply giving someone the title of “supervisor” is never enough. In many cases employees may have only partial supervisory authority—the issue in cases like Lakeland Health Care is whether the employees had enough supervisory authority to be “supervisors” under the NLRA.

Lakeland Health Care operates residential care facilities (until recently known commonly as “nursing homes”). Consistent with industry-wide practice, Lakeland Health Care staffs its facility primarily with Certified Nursing Assistants (“CNAs”), who perform most of the day-to-day work providing physical care to residents—such as feeding, dressing, bathing, turning, etc.—and charge nurses, usually Licensed Practical Nurses (“LPNs”) or sometimes Registered Nurses (“RNs”), who provide basic medical care to residents such as administering medication, inserting or monitoring intravenous lines, and performing blood draws. Also consistent with industry practice, the RNs and LPNs have general day-to-day supervision over the CNAs with whom they work each shift, but do not have independent hire/fire authority.

Section 2(11) of the NLRA and related case law has a very detailed and complex definition of who is a “supervisor.” To summarize, a “supervisor” is any employee who has the authority to hire, fire, discipline, or assign work to other employees, or to effectively recommend any of those actions, or who “responsibly direct[s]” other employees in their day-to-day work. The supervisor must also use “independent judgment” in performing those supervisory functions and not merely report employee conduct to higher level managers to take action.  Those who meet the "supervisors" tests are not "employees" eligible to organize into unions under the NLRA.

After reviewing the testimony of company witnesses, and employee handbooks and written job descriptions, the 11th Circuit concluded, in contrast to the NLRB, that the Lakeland Health Care LPNs were supervisors under that NLRA definition. Specifically, the Court found that even though LPNs could not hire or fire CNAs, they could independently issue them written and verbal coaching (i.e., discipline) and assign work. The Court also found that LPNs “responsibly directed” CNAs in their day-to-day work in that the LPN ultimately could be held responsible, and disciplined, if the CNAs failed to provide adequate care to residents. The Court found that the LPNs exercised sufficient “independent judgment” in performing all of these functions with respect to CNAs.

A Brief Recent History Of “Supervisor” Status

The supervisory status of charge nurses in the residential care industry has been the subject of much labor litigation over the past 10 years (perhaps because that industry has specifically been targeted for organization drives by many major national and local unions). While the reasoning in Lakeland Health Care summarized above may sound straight-forward, other cases with nearly identical facts have reached very differently results. These differing outcomes make it difficult for employers to know when employees are supervisors, and appear to be largely influenced by two factors.

First, the NLRB’s own interpretation of the law can change dramatically over time depending on whether a pro-union Democrat or pro-business Republican is President. For example, in 2006 the Bush-era Board issued employer-friendly decisions that broadly applied the “supervisor” exception in its Oakwood Health Care “trilogy” (also involving the status of charge nurses in residential care facilities). In so doing, Oakwood Health Care departed from Clinton-era NLRB decisions that had made it much more difficult to show that employees like LPNs are “supervisors.” In recent years, the Obama Board has distinguished Oakwood Health Care to turn back the clock to the broader Clinton-era interpretations of “supervisor.” Perhaps most difficult, the NLRB rarely outright reverses earlier opinions, but instead tries to find subtle factual nuances to harmonize its decisions, even though the different outcomes sometimes seem to be based on very similar factual patterns. 

Second, there is also tension between the (generally pro-union) NLRB and the federal circuit courts, which have jurisdiction to reverse those decisions and may tend to be more pro-employer. For example, the 11th Circuit in Lakeland Health Care specifically held that the employer must only show that the LPNs have the authority to perform the supervisory functions (through written job descriptions, handbooks, and the testimony of managers), not that they demonstrate a practice of actually having used that authority in specific cases. That holding may be a departure from recent cases where the Board found under virtually identical facts that charge nurses were not supervisors, because, even though written policies and job descriptions showed they had supervisory authority, they did not actually discipline CNAs, or did not do so often enough. 

Back To The Future:  More Conflicting Decisions To Come?

It will be interesting to see how the Obama Board will respond to the 11th Circuit’s opinion in Lakeland Health Care.  As we have blogged about repeatedly, the current Obama Board has been very active, tends to be pro-union, and is not afraid of taking positions potentially at odds with federal courts, even the U.S. Supreme Court.  And the NLRB could only be emboldened now that President Obama has won re-election. It is therefore difficult to see how this tug-of-war will play out.  Maybe the only thing that is certain is that more fireworks are likely over the next few months and years in this area.

In the meantime, Lakeland Health Care may offer some help to employers who wish to oppose unionization efforts involving potentially supervisory employees.  While circuit court opinions are not technically binding on the NLRB or its regional offices, they can be persuasive authority.  Also, while this line of cases is particularly relevant for employers like Lakeland in residential care, the “supervisor” tests are the same everywhere.  Employers in all industries may wish to pay particular attention to the weight the 11th Circuit gave to the handbooks and written job descriptions, which helped show that the LPNs in that case had the necessary supervisory authority, and revise their own written job descriptions if needed. If you find yourself in an NLRB hearing involving the supervisory status of employees, the quality of your written job descriptions and handbooks could help make the difference in proving your case.

Where There Is At-Will, There Is A Way: NLRB Issues New Guidance On "At Will" Employment Policies

On Halloween, the National Labor Relations Board (“Board”) General Counsel’s Division of Advice handed out a rare treat to employers by issuing two Advice Memos (Mimi's Café, Case No. 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), deeming two particular (and common forms of) at-will employment policies contained in employee handbooks lawful under the National Labor Relations Act (the “Act").  

Earlier this year, an Administrative Law Judge frightened many employers by ruling a particular company’s “at-will” policy violated the Act because it theoretically could make employees believe that they could not form a union or otherwise advocate to change their at-will employment status. That challenged policy stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The case, American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), was settled before the NLRB could review it on appeal. 

The Division of Advice’s Halloween memoranda distinguished American Red Cross case from Mimi's Café and Rocha Transportation – noting that the at-will policy in American Red Cross used the personal pronoun “I” (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”), which as written essentially constituted an impermissible waiver of any right of employees to try and change at-will status (i.e., to try to form a union).  The Division of Advice also noted that the policy in American Red Cross declared that the at-will employment relationship could never be modified under any circumstances whatsoever, which could be interpreted as chilling employees’ rights under the Act to engage in protected concerted activity such as forming a union.   Finally, the Division of Advice, perhaps dismissively, noted that American Red Cross had settled before getting to the Board level.

In contrast, in the two cases and policies analyzed by the Division of Advice’s Halloween memoranda, one employer’s handbook specifically provided for possible changes to an employee’s at-will employment status if made in writing and signed by the company president, and the other employer’s handbook merely said that no one in management had authority to make changes to the at-will policy. Specifically, the two at-will policies validated by the Division of Advice provided:

At-Will Employment

The relationship between you and Mimi’s Café is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

Statement of At-Will Employment Status

Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

The Rocha Transportation handbook also contained an "Acknowledgment of Receipt" that employees were required to sign, acknowledging that "nothing in the employee handbook creates or is intended to create a promise, contract, or representation of continued employment ...” The Division of Advice noted this was important in showing that the employer was trying to protect against contract claims, as opposed to trying to restrict employees’ rights under the Act.

The Division of Advice’s memoranda provide a welcome respite from an otherwise troubling (for employers) spate of Board decisions affecting both non-union and unionized employers on topics such as social media, off-duty access, and confidentiality policies. Although the Division of Advice’s memoranda are technically not binding, the Board’s Acting General Counsel has instructed all NLRB Regional Offices to consult with the Division of Advice before issuing any complaint challenging an employer’s at-will policy. And employers now have some helpful guidance from these memoranda concerning how to word at-will policies.

 

UPDATE: NLRB Postpones Posting Rule Indefinitely

In response to two federal court cases we previously blogged about here and here, the NLRB has indefinitely postponed implementation of its notice posting rule pending appeals in both of those cases.  The bottom line is that no employer needs to post the notice for the time being.

The U.S. Court of Appeals for the D.C. Circuit will hear the NLRB’s appeal of an emergency injunction that court issued against the rule, but the hearing will not occur before September 2012.  In the trial court ruling in that case, the judge found the NLRB's posting rule valid, but its enforcement provisions invalid.  The NLRB is also appealing the South Carolina federal trial court decision we previously blogged about, in which a judge deemed the NLRB's entire posting rule invalid.  No schedule has yet been set for the South Carolina appeal.

See the NLRB’s statement about this issue here.

UPDATE: DC Court of Appeals Delays Implementation of NLRB Posting Requirement

The NLRB’s new posting rule, which would apply to virtually all private sector employers, was scheduled to go in effect on April 30, 2012.  Yesterday, we blogged about a South Carolina federal trial court decision striking down the posting rule.  More good news for employers arrived today, as the United States Court of Appeals for the District of Columbia issued an emergency injunction preserving the “status quo” and delaying implementation of the NLRB’s posting rule until that Court of Appeals determines its validity.  The D.C. trial court had previously determined the posting rule was valid (contrary to the South Carolina case) but that its remedies were invalid.  Oral argument in the D.C. appellate case is currently estimated to occur in September 2012.  A copy of the D.C. Court of Appeals injunction decision is here.

 

We now have two courts that have stymied the NLRB posting rule.  It is still unknown whether the NLRB will appeal the South Carolina and D.C. Court of Appeals decisions.  But for now, absent an emergency appeal, it appears that the NLRB’s posting rule will, at a minimum, be delayed for several months.  We will keep you “posted” as developments occur.

South Carolina Federal Court Holds NLRB's Notice Posting is Unlawful

As previously blogged here, a federal court located in the District of Columbia upheld the National Labor Relations Board's (“NLRB”) rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act.  While upholding the rule, that federal court did at least strike down the rule’s main enforcement provisions.  A copy of that federal court decision is here.  As we blogged then, another legal challenge to the NLRB’s rule was also pending in a South Carolina federal court.  That decision is now here, and it is a good one for employers.

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce challenged the NLRB’s rule.  On April 13, 2012 (perhaps Friday the 13th from the NLRB’s perspective), the federal judge in that South Carolina case ruled that the NLRB’s entire posting rule is invalid, finding the NLRB exceeded its authority when it required employers to post notices explaining workers’ rights to form a union. In his ruling, the South Carolina federal judge said the NLRB lacked the legal authority to issue the notice and thus the rule was not lawful.  “Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner,” the court ruled.

Many labor law professionals feel that the NLRB has become overly aggressive in supporting and expanding union rights during the Obama administration.  This sentiment is especially strong in a conservative state like South Carolina, which also was at the center of a now-settled dispute between the NLRB and Boeing over Boeing’s decision to move production of its 787 Dreamliner airplane from Washington State to South Carolina.  The South Carolina federal judge appears to agree that the NLRB is becoming overly aggressive, stating, “The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles.”  A copy of the South Carolina decision is here. Its authority is technically legally limited to that particular court, but because of its import we expect it to have an effect nationally as the NLRB seeks to regroup and rethink what it will do.  If the NLRB does not appeal the South Carolina court’s decision, the ruling will stand and, from a practical perspective the posting requirement will be invalidated nationally.  But most pundits anticipate that the NLRB will file an appeal over the South Carolina decision.

The bottom line is that we now have two conflicting federal court rulings on the issue, and await the NLRB’s decision on whether it will appeal the South Carolina ruling, and/or delay implementation of its previously stated April 30, 2012 posting deadline.  Stay tuned.

NLRB Posting Requirements - Update

Update: A federal trial court in the District of Columbia has upheld the notice posting requirement in the National Labor Relations Board's (“NLRB”) recently issued final rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act. To view the Court's decision, click here.  The court also held, however, that the rule’s main enforcement provisions, including making an employer’s failure to post a per se unfair labor practice, are invalid. Unless this decision is overturned or another court finds the rule to be invalid, the notice posting requirement will still take effect April 30, 2012. An appeal is likely in the District of Columbia case, and at least one other court challenge is pending in South Carolina.


For additional information regarding the NLRB's rule and posting requirement, including links to the rule and the poster employers must post, see our prior discussion on this topic by following this
link.

NLRB Finds Employee Arbitration Agreement Waiving Class Claims Violates Federal Labor Law

In DR Horton, a decision issued on January 3 and applicable to most private sector employers, whether unionized or not, the National Labor Relations Board (NLRB) held that federal labor law prevents employers from requiring their employees, as a condition of employment, to agree to broad waivers that would deny their right to pursue employment-related class actions both in court and in arbitration, leaving them no forum for pursuing class or collective claims.  As a result, an important tool for managing the risk of employment-related litigation has been taken away (for now). 

The facts of the case are straightforward.  DR Horton, like many employers, required its employees to sign an arbitration agreement as a condition of employment.  The agreement required employees to arbitrate all claims arising out of their employment, and precluded arbitrators from issuing class or group relief.  As a result, employees were prevented from bringing class or collective actions in any forum.  Relying on this agreement, DR Horton refused to arbitrate a class action alleging that it had misclassified certain employees as exempt from the protections of the Fair Labor Standards Act (FLSA).

 

Not so fast, according to the NLRB.  Tracing federal labor law back to its origins, the NLRB found that the filing of a class action “to redress workplace wrongs or improve working conditions” is activity at “the core” of what Congress intended to protect when it enacted the National Labor Relations Act in 1935.  This intent, the NLRB reasoned, is reflected in Section 7 of the Act, which gives employees the right to engage in “concerted activities” for the purposes of “mutual aid or protection.”  Relying on Section 7, the NLRB found that Employers cannot compel their employees, as a condition of employment, to entirely waive the right to bring class or collective actions.

 

The NLRB’s ruling in DR Horton clashes with the U.S. Supreme Court’s recent decision in AT&T Mobility v. Concepcion, which held that arbitration clauses that waive the right to bring class claims entirely (in the commercial contract context) may be lawful and enforceable.  But unless and until the courts intervene to resolve this tension, requiring your employees to completely waive the right to bring employment-related class or collective actions - a common feature of arbitration agreements - is probably no longer permissible under federal labor law.

 

If You're Interested In Learning More, Sign Up For Our Webinar

Stoel Rives is hosting a webinar on January 11, 2012, to address employee arbitration agreements generally and the DR Horton decision in particular.  Click here if you're interested in learning more or attending.

NLRB's New "Vote Now, Litigate Later" Union Election Rules To Become Effective April 2012

 The NLRB gave organized labor a meaningful gift just before the holidays by issuing a final rule adopting new election case procedures that will likely result in more and faster union elections, and probably also result in more employers having unionized workforces.  The new rule becomes effective on April 30, 2012.

The New Year:  Out With The Old Rules...

During union campaigns, the union and the employer may disagree (vigorously) about the proper size ("scope") of the proposed bargaining unit.  Such disputes can include whether certain employees are "supervisory" employees and thus ineligible to vote, or whether different classifications of employees share enough of a "community of interest" to be included in the same bargaining unit, and covered by the same contract.  How those disputes are resolved often determine the outcome of the election.  Under the existing (er, now old) election rules, employers had the opportunity to litigate these types of bargaining unit scope issues before the election. 

...In With The New

The NLRB's new rule essentially eliminates the employer's opportunity to litigate, prior to the election, any disputes over the scope of the bargaining unit proposed by the union.  Under the rule, such issues will ordinarily be addressed only after the election takes place.  Employers should be aware of how this "vote now, litigate later" rule could impact union elections. 

Shorter Election Campaigns: Under the old rules, litigating bargaining unit scope issues usually delayed the election, giving employers additional time to discuss the pros and cons of unions with its workers before the vote.  That additional campaign period is now lost, depriving employers of valuable time to counter an organizing campaign that may have started months before the union went to the NLRB seeking an election. 

Greater Difficulty in Challenging The Union's Proposed Unit: Although employers may technically be able to litigate unit scope and voter eligibility issues after the NLRB conducts the election, in those cases where the vote results in a "yes" vote for the union (which under the old rules happened more than 60% of the time), employers will be in the difficult position of having to contest threshold legal issues after the employees have already "won" the right to representation.  This procedure tilts the playing field in favor of unions. 

Considered in the context of the NLRB's August 2011 decision in Specialty Healthcare, this rule means that the petitioning union will get a quick election in the unit of employees it has chosen to organize.  Specialty Healthcare enables unions to organize small or "micro" units of employees (such as single classifications of employees or individual departments).  The Board held that for an employer to add excluded employees to the union's proposed unit, it must demonstrate that the excluded employees share an "overwhelming community of interest" with the employees the union seeks to represent.  In a dissenting opinion, NLRB Member Brian Hayes noted that this test makes it “virtually impossible” for the employer to prove the union's proposed unit is not proper.  To make matters worse, now the Employer will ordinarily have to make that argument after the union has already "won." 

Why Now?  Election Year Politics, That's Why.

That the NLRB issued these new rules now probably had less to do with the holiday spirit than with an election of a different sort--the 2012 U.S. Presidential election and the related gridlock in the U.S. Congress.  Up until last week, the Board had three members (out of a possible five) which, after the U.S. Supreme Court's 2010 decision in New Process Steel, is the minimum required for the NLRB to decide cases and issue regulations.  Last week was when President Obama's controversial recess appointment of Member Craig Becker ended.  The NLRB may have wanted to enact the new rules before it was reduced to two members again, as that may be the last opportunity in an election year for the Obama Administration to do something substantial for organized labor, an important constituency.  While nominations for the three NLRB Member vacancies are pending, the gridlocked Senate is not expected to act on those nominations any time soon.  While the President could make another recess appointment to ensure a functioning, three-member NLRB, that risks (further) alienating Senate Republicans, all 47 of whom recently signed a letter urging the President not to fill NLRB vacancies using recess appointments.  The next few weeks, before Congress reconvenes on January 23 from its holiday recess, could be very interesting for NLRB-watchers.  Stay tuned...

Update!

 

...well you didn't have to stay tuned for long!  President Obama has announced three recess appointments to the NLRB.  The appointees include two Democrats (Richard Griffin and Sharon Block) and one Republican (Terence Flynn), giving Democrats a 3-2 Board majority.  The President’s decision to bypass the Senate confirmation process quickly drew the ire of Senate Republicans, but the President chose that fight over the alternative of allowing the NLRB to go through a prolonged period in which it was unable to issue decisions or adopt regulations.  As a result of these appointments, we can expect more pro-labor decisions in 2012.

 

Update - New Rule Requires Employers to Post Notice of Employee NLRA Rights

In order to allow more time for legal challenges to its notice-posting rule to be resolved, the National Labor Relations Board has again postponed the rule's effective date, this time to April 30, 2012.  Stay tuned.

For additional information regarding the NLRB's new rule and posting requirement, including links to the new rule and the poster employers must post, see our prior post on this topic by following this link.

Seasons' Greetings From The California Legislature--New Laws That Apply To Employers In January 2012

The California legislature has done plenty this year to leave in employers' stockings for the holidays--new employment laws that will become effective January 1, 2012.  In addition to the new California Transparency in Supply Chains Act we blogged about earlier, after some eggnog and holiday cheer, employers will need to be aware of new legal obligations that will kick in as we kick off 2012.  Here are the highlights.

 “Anti-Wage Theft” Law (AB 469). The Wage Theft Prevention Act of 2011 requires employers to provide non-exempt employees, at the time of hiring, a notice specifying the employee’s rate or rates of pay and the basis on which the employee’s wages are to be calculated (such as hourly, daily, piece, salary, commission, etc.). The notice must also include applicable overtime rates, allowances (if any) claimed as part of the minimum wage, the employer’s designated regular payday, the name of the employer (including any “doing business as” names), the employer’s physical and mailing addresses, and contact information for the employer’s workers’ compensation carrier. The Act also requires the employer to notify employees in writing of any changes made to any of this information within seven days of the implementation of such changes, unless the changes are reflected on a timely wage statement or other writing required by law. The Act adds an element of criminal liability by providing that any employer who willfully fails to pay wage-related Labor Commissioner orders or court judgments is guilty of a misdemeanor. 

Independent Contractors (SB 459). This new law cracks down on employers who misclassify their employees as independent contractors by imposing a fine of between $5,000 and $25,000 for “willfully” misclassifying a worker as an independent contractor. “Willful misclassification” means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor. The law also imposes joint and several liability for a non-attorney consultant to advise an employer to willfully misclassify someone as an independent contractor.

Background Checks (AB 22). This law prohibits most employers from obtaining or relying on consumer credit reports regarding employees or job applicants, except in certain specified limited circumstances. The law does not apply to financial institutions or entities required by law to perform credit checks. Under the new law, employers may still obtain and rely upon credit reports for managerial employees covered by the executive exemption.

Pregnancy Disability Leave (AB 592 and SB 299). This law expressly prohibits “interference” with the exercise of any right provided under the California Family Rights Act, or due to disability by pregnancy, childbirth or related medical conditions. In a provision that may prove to be preempted by ERISA, the law also requires employers to maintain and pay for health coverage under a group health plan for any eligible female employee who takes up to four months of leave due to pregnancy, childbirth or a related medical condition in a twelve month period. 

Gender Identity and Expression (AB 887). Existing law prohibits discrimination and harassment based on gender. This law expands the definition of “gender” to include both gender identity (how the person sees him or herself) and gender expression (how other people view the person). Under the new law, an employee must be permitted to dress consistent with the employee’s gender identity and expression.

Genetic Information Discrimination (SB 559). Discrimination in hiring or employment based on genetic information is now unlawful under the Fair Employment and Housing Act. Genetic information is defined to include the individual employee’s genetic tests, the genetic tests of the employee’s family members, and the manifestation of a disease or disorder in the employee’s family members. 

Commission Agreements (AB 1396). This law requires all contracts for employment involving commissions as a method of payment to be in writing and to set forth a method by which the commissions are required to be computed and paid. The employee must be given a signed copy, and the employer must obtain a signed receipt from each employee. This law does not take effect until January 1, 2013, so employers have a year to prepare for compliance.

Agricultural Labor Relations (SB 126). This law authorizes the California Agricultural Labor Relations Board to certify union elections when employer misconduct affects the outcomes.

 Happy Holidays!

New Rule Requires Employers to Post Notice of Employee NLRA Rights

Your bulletin board full of required workplace postings just got more crowded. The National Labor Relations Board (“NLRB”) has issued a final rule that will require nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act (“NLRA”). The notice must be posted by no later than November 14, 2011 (now postponed until January 31, 2012, see update below).  The new rule is one of many new developments arising from the current NLRB’s implementation of the Obama administration’s labor policy.

This new notice is a form designed by the NLRB. Among other things, it contains:

 

·         A summary of employee rights under the NLRA, including the right to discuss wages and working conditions with co-workers or a union, form or join a union, take collective action to improve working conditions, and engage in other protected activities.

·         Examples of violations of those rights, and an affirmation that unlawful conduct will not be permitted.

·         Information about the NLRB, the NLRB’s contact information, and details on how to file an unfair labor practice charge with the NLRB.

·         A statement about the employer's obligation to bargain in good faith if a union has been selected by employees.

 

This new rule applies to almost all employers except public sector employers, very small employers below the NLRB’s jurisdictional standard for impacting interstate commerce, and other limited classes of employers outside of the NLRA’s jurisdiction. The NLRB may find that an employer’s failure to post the notice constitutes an unfair labor practice. The remedy for a violation may not be severe because the NLRB cannot impose fines – but much worse, a violation can be evidence of unlawful motive and prevent the running of the statute of limitations.

 

The full text of the actual required notice is available here. Private sector employers will be required to post this notice in conspicuous places, including where they customarily post other workplace notices. In addition, employers who customarily post personnel policies and rules on an internet or intranet site must include this new notice there or provide a link to the NLRB’s website section containing the notice. If an employer has employees working at another employer’s site, it will also need to determine whether it can post notices at that site if the other employer does not already have the notice posted. If 20 percent or more of an employer’s employees are not proficient in English and speak the same foreign language, the notice must also be posted in that language. The NLRB will provide translations in such circumstances. Copies of the required 11x17 posters will be available at no cost from the NLRB upon request, and will also be downloadable from the NLRB’s website, www.nlrb.gov. A federal contractor will be regarded as complying with the NLRB’s new posting requirement if it already posts the notice required of federal contractors by the U.S. Department of Labor. See our earlier discussion of those posting requirements here. 

 

The NLRB fact sheet with further information about the rule is available here. There are likely to be legal challenges to the NLRB’s new notice posting rule, and at least one bill has already been introduced in Congress seeking to invalidate it. For now, employers will need to be prepared to comply with the new posting requirement. While already unionized employers will likely see little impact from the new rule other than the actual posting requirement itself, non-unionized employers may be faced with employees raising questions about their rights under the NLRA. Because such questions will invariably be directed toward their immediate supervisors, it is important for non-unionized employers to make sure that supervisors are properly trained regarding how to maintain a union-free environment without violating the NLRA. Non-unionized employers might also be tempted to post their own notice alongside the new NLRB poster, advising employees why a union is not needed. As with all such efforts, missteps can lead to challenges before the NLRB, so employers should consult with their Stoel Rives labor attorney.

 

UPDATE:  On September 14, 2011, the NLRB made available the poster that employers must post.  The link to that poster is here.  The NLRB recently postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers.  See here.  The new effective date of the rule, and the date by which the new notice must be posted, is January 31, 2012.

Companion Anti-Union Bills Slated to Pass Idaho Legislature

Never shy about taking on unions, especially in a state where organized labor enjoys little support outside the government sector, the Idaho Legislature recently introduced a pair of bills for addition to the state’s existing Right to Work statute. 

Senate Bill 1007, named the “Fairness in Contracting Act,” is intended to “promote fairness in bidding and contracting.”  This bill provides, among other things, that a “contractor or subcontractor may not  directly or indirectly receive a wage subsidy, bid supplement or rebate on behalf of its employees, or provide the same to its employees, the source of which is wages, dues or assessments collected by or on behalf of any labor organization(s), whether or not labeled as dues or assessments.”  The proposed measure would also prohibit labor organizations from “directly or indirectly” paying “a wage subsidy or wage rebate to its members in order to directly or indirectly subsidize a contractor or subcontractor, the source of which is wages, dues or assessments collected by or on behalf of its members, whether or not labeled as dues or assessments.”  Use of any fund financed by wages collected by or on behalf of any labor organization, whether or not labeled as dues or assessments, to subsidize a contractor or subcontractor doing business in the state of Idaho would be deemed unlawful. 

Contractors, including subcontractors, or labor organizations that violate the provisions of this proposed law will be guilty of a misdemeanor and could be fined an amount not to exceed ten thousand dollars ($10,000) for a first offense, twenty-five thousand dollars ($25,000) for a second offense, and one hundred thousand dollars ($100,000) for each and every additional offense. 

The legislation would also confer standing on any “interested party,” including a bidder, offeror, contractor, subcontractor or taxpayer, to challenge any bid award, specification, project agreement, controlling document, grant or cooperative agreement in violation of the provisions of the law.  If an interested party prevails in a lawsuit challenging the bill, it will be awarded costs and attorney's fees.

A companion bill, Senate Bill 1006 (“The Open Access to Work Act”), introduced at the same time, bars bidders on public works projects from paying a predetermined amount of wages or wage rate; or type, amount or rate of employee benefits.  The law does not apply when federal law requires the payment of prevailing or minimum wages to persons working on projects funded in whole or in part by federal funds.  A separate provision makes clear that the contractor party cannot be required to enter into an agreement with a labor organization as part of the contract.

Both of these bills were printed and sent to the State Affairs Committee for further action last week.  Yesterday, the full Senate considered and voted on SB 1006, approving it by a 27-7 vote. It has now been referred to the Idaho House. SB 1007 on Monday passed the Committee by a 7-2 party line vote, and will soon be taken up by the full Senate. 

Although these bills remain at a relatively early stage, questions have been raised about their legality and potential conflict with federal labor law.   Stay tuned for more.

Court Dismisses Lawsuit Against Oregon Mandatory Meeting Law

Last week a federal judge dismissed a lawsuit aimed at blocking SB 519, the Oregon law the prohibits employers from requiring employees to attend meeting about, among other things, labor unions.  Click here to read the District of Oregon's opinion in Associated Oregon Industries v. Avakian

SB 519, passed by the Oregon legislature in 2009, prohibits employers from disciplining or threatening to discipline employees who refuse to attend mandatory or "captive audience" meetings on religious or political matters, including the employer's views on labor unions.  SB 519 also requires employers to post a notice informing employees of their rights under the law, which you can download here

Associated Oregon Industries brought a federal lawsuit on behalf of Oregon employers, arguing that the law is preempted by the National Labor Relations Act and violates employers' First Amendment free speech rights.  The court did not reach the merits of that challenge; instead, the court held that the case was not ripe for review, and indicated it could not be challenged "until an employer holds a mandatory meeting, and then creates an employee's cause of action by disciplining an employee who refuses to attend." 

In our humble opinion (not to be taken as legal advice!), the portion of SB 519 that applies to union meeting will someday be successfully challenged on the basis that it is preempted by federal labor law.  This latest ruling, however, seems to indicate a court will be reluctant to rule on the bill until it is presented with a case involving employee discipline, and that may take an employer with enough interest in such meetings to be willing to run the risk and costs of litigation. 

When Is It Okay to Cuss Out Your Boss?

Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired.  That assumption may be wrong, depending on the context in which the swearing occurs.  A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises after he used profanity toward his supervisor in the course of union activity.  Click here to read the opinion in  FAA and National Air Traffic Controllers Association

In FAA, an employee (who was also the union president) got into a verbal altercation with his supervisor over what the employee felt were insufficient staffing levels under their union contract.  In the course of that altercation, the employee told his boss:  “F*** you, I don't give a f***!”  (Imagine a certain four-letter word that rhymes with "duck.")  In response, the supervisor had the employee escorted off of the employer's premises.  A federal judge held that the employer's response violated the employee's rights under federal labor law.  The judge ruled that because the swearing occurred in the course of union activity,  it was protected speech:  “the use of profanity, standing alone, does not remove conduct or speech from the protection of [federal labor law]."   The Judge also noted that the outburst was brief, made in a normal tone of voice, and not overheard by other employees.

FAA teaches us an important lesson:  even relatively robust swearing by an employee during the course of otherwise protected activity may be protected.  The same logic behind the FAA decision could possibly apply to other types of protected employee speech:  union activity, harassment complaints, discrimination complaints, safety reports, etc. 

So when does profanity, even in the scope of protected activity, lose its protection?  There are no "bright line" rules, but courts look to several factors: 

  • the volume, severity and duration of the outburst
  • whether it is accompanies by threats or threatening gestures
  • whether there is a workplace culture that condones or encourages profanity
  • whether it is overheard by other employees
  • whether the profanity is likely to disrupt workplace operations
  • whether it rises to the level of verbal harassment that may violate the employer's policies
  • whether it was a spontaneous outburst made out of frustration, instead of a premeditated attempt to humiliate the supervisor. 

In any event, employers should proceed with a great deal of caution before disciplining an employee who uses profanity in the course of a protected activity.  If the swearing was not in the course of a protected activity, disciplining the employee for insubordination or unprofessional behavior is relatively risk-free. 

Oregon Employers: Download SB 519 (Mandatory Meeting Ban) Notice Here!

Back in June, we reported on Oregon SB 519 - the law taking effect January 1, 2010 that will prohibit Oregon employers from disciplining any employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters - including labor unions. 

SB 519 also requires ALL Oregon employers to post a notice informing employees of their rights under the new law.  We usually rely on the Oregon Bureau of Labor and Industries (BOLI) to supply us with all mandatory postings, but BOLI has chosen not to publish an SB 519 posting. 

We at the Stoel Rives World of Employment and Stoel Rives couldn't just leave you in the lurch - we have created our own SB 519 Poster - just click the link to download, free of charge.  It's a .pdf document, and we've included two per page, just in case you want multiple copies.  We would recommend that you post the notice wherever you typically put up your employment law posters.  If you have an extra copies, we think they make excellent stocking stuffers (at least for the HR professional in your family).

DISCLAIMER!  (You knew this was coming, right?)  No government official or agency has approved this poster as fulfilling the SB 519 requirements.  This poster represents our best efforts to create a poster that complies with those requirements, but we make no representations, promises or warranties as to whether it fulfills the legal requirements of SB 519.  As always, the materials available at this web site/blog are for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site/blog or any of the materials or e-mail links contained within the site do not create an attorney-client relationship between Stoel Rives and the user or browser.

Key EFCA Ally Withdraws Support for Card-Check Bill

California Senator Dianne Feinstein has withdrawn her support for the Employee Free Choice Act (EFCA), according to this editorial in the Oakland Tribune.  Because of the recession, the time is not right, according to Senator Feinstein, who stated that she still hopes a union/management compromise is possible.

Senator Feinstein's withdrawal of support may put the nail in EFCA's coffin - at least in its current form.  It remains possible that a modified form of EFCA - without the original bill's controversial card-check provision - will still pass in late 2009 or 2010.  A revised EFCA will likely replace the card check with faster election periods, giving employers less time to actively campaign against unionization efforts.  Even with an apparently watered-down version of EFCA on the way, employers should be prepared to face a radically different set of federal labor laws as soon as January 1, 2010.  The Stoel Rives World of Employment will continue to keep an eye on EFCA and bring you updates as they occur.

Supreme Court Agrees to Hear Case About Meddling International Union

The US Supreme Court just agreed to hear a case asking just how much international unions will be allowed to meddle in the affairs of their local affiliates.  In Granite Rock v. Teamsters, the employer sued the International Brotherhood of Teamsters in federal court claiming that the International interfered with the relationship between the employer and the Local Teamsters union. 

In Granite, the employer and the Local had reached a tentative new agreement which contained a no-strike clause. The employer alleged that the Local ratified the agreement and then engaged in a strike.  Apparently a high ranking official of the International was the motivating force behind the strike.  The 9th Circuit held that the employer could not sue the International because the agreement was between the employer and the Local, and did not involve the International.  The Supreme Court granted cert and will hear the case, perhaps recognizing that international unions are often working behind the scenes with their local unions.

The Court will probably not hear the case until the 2010 session, and it could be some time before an opinion is issued.   It is not uncommon for employers to have good relationships with local unions.  Sometimes those relationships are strained through pressure from out-of-town international union officials.  Currently, international unions are somewhat insulated from liability for meddling in negotiations and other ongoing business relationships between local unions and employers.  Ultimately, this decision could open a new legal avenue for employers to hold international unions accountable for their actions.

 

9th Circuit Orders Damages, but Not Reinstatement for Unauthorized Alien Workers

What's an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States?  Pay liquidated damages instead, according to the Ninth Circuit's recent decision in NLRB v. C&C Roofing Supply Inc

In C&C, the National Labor Relations Board (NLRB) alleged that the employer unlawfully fired 20 workers for engaging in union activity.  The parties reached a formal settlement that called for reinstatement of the illegally fired workers and payment of specific amounts of liquidated damages to each.  However, the employer then refused to reinstate the employees because many of them were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act, which both prohibit hiring unauthorized aliens. 

The Ninth Circuit solved the dilemma by ordering the employer to pay the agreed-upon liquidated damages, but did not require the employer to reinstate the unauthorized employees.  But how does this case square with Hoffman Plastic Compounds Inc. v. NLRB?  There, the U.S. Supreme Court held 5-4 that the board may not order back pay for unauthorized aliens, despite their firing in violation of federal labor law, because doing so would violate immigration policy expressed in IRCA.  In C&C, the Ninth Circuit dodged that issue by ruling that agreed-upon liquidated damages as part of a settlement do not raise the same issues as back pay ordered by the court, as the employees need not be "available to work" in order to receive liquidated damages.  Don't be surprised if this one gets appealed up to the Supreme Court for a determination if it really does square with Hoffman

Oregon Legislature Bans Mandatory Meetings

A new Oregon bill will prohibit employers from requiring employees to attend mandatory or "captive audience" meetings on, among other topics, labor unions.  Governor Ted Kulongoski is expected to sign the bill, which would them become law effective January 1, 2010.  Click here to read SB 519

SB 519 prohibits an employer from taking action against an employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters. Religious or political matters is defined broadly and includes communications to employees about unionization.  An employee who suffers economic loss (through termination or suspension) as a result of the bill can sue his or her employer and recover treble damages.  The bill also allows employees to obtain an injunction prohibiting additional "captive audience" meetings. 

This law might not be long-lived:  the U.S. Supreme Court found a similar California law to be preempted by federal labor law.  Click here to read that opinion in Chamber of Commerce v. Brown.  Even if a court finds Oregon's statute to be similarly preempted (and we believe a court will), the law could still apply to employers that are not covered by federal labor law - namely, Oregon public and agricultural employers.  Also, the word from Salem is that the legislature will still revise the law to provide additional protections for religious employers (such as churches and some hospitals) who hold religious meetings, so keep an eye out for those changes in the next week or so. 

Labor Unions Targeting Green Energy Development

Labor unions are seeing a rare growth opportunity in green power.  Despite the recession, there has been a building boom in green energy, in particular solar and wind projects.  As reported recently in the New York Times, labor unions see something in green energy for them as well, and they're using intense political pressure to get it.

When a new solar or wind project is being built, a union will approach the builder and demand that it use only union labor on the project.  If the builder agrees, the union then urges local regulators to quickly approve the project; if the builder refuses, however, the union then raises myriad environmental concerns with regulators in an attempt to stall or even completely derail the project.  Apparently, a union-built solar installation won't have the same impact on the habitat of the short-nosed kangaroo rat or the ferruginous hawk as a non-union one.  Right. 

These tactics aren't new; labor unions have made aggressive use of the environmental laws for years to put pressure on traditional energy producers to use union labor.  But, with union membership in an overall decline, unions are desperate to maintain relevance in the growing green economy. 

Interested in wind, solar and other forms renewable energy?  Check out our sister blog, Renewable + Law, from Stoel Rives' Renewable Energy Initiative. 

Proposed Legislation Would Allow Employers to Fire Union Salts

The Truth in Employment Act of 2009 (TEA) would allow employers to lawfully fire employees who are suspected of “salting,” or attempting to organize the contractor's workforce from within on behalf of a labor union.  The bill was introduced in the Senate by Sen. Jim DeMint (R-S.C.) and in the House by Rep. Steve King (R-Iowa). 

TEA would amend the National Labor Relations Act to protect the employer from being required to hire any person who is seeking a job in order to promote interests unrelated to those of the employer.  “Small businesses should never be forced to hire undercover union organizers who seek to bully workers and harm companies,” said Senator DeMint. “We must pass the Truth in Employment Act or successful small businesses will remain vulnerable to union salting tactics that threaten jobs."  Click here to read Senator DeMint's press release on TEA

Does TEA have a realistic chance of becoming law?  Not really.  The Republicans unsuccessfully tried to pass TEA in 2005 and 2007, and that was when they had a fellow Rebpublican in the White House and much better numbers in both houses.  Expect this one to die on the vine. 

Employers can take some solace, however; last year, the National Labor Relations Board held in Toering Electric Company  that an employer is not required to hire an employee who is not "genuinely interested in seeking to establish an employment relationship with the employer," thus significantly restricting the amount of salt in unions' diets.  If you have concerns about union salting in your workplace, you might want to read the NLRB's Guideline Memorandum Concerning Toering Electric Company

Proposed Law Would Allow Employers to Pay Extra to Union Workers

The proposed Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, introduced in Congress last week, would change federal labor law to allow employers to pay higher wages to selected union employees.  Sounds like a no brainer, right?  Guess again.

The Act was introduced in the Senate by Sen. David Vitter (R-La.) and in the House by Rep. Tom McClintock (R-Calif.)  Under the RAISE Act, collective-bargaining agreements would establish a "floor" for wages, a minimum standard that employees could then exceed for "those workers who go the extra mile."   Under current law, an employer must first bargain with the union and obtain the union's agreement before rewarding individual achievement.  Click here for an explanation of the RAISE Act from conservative think tank the Heritage Foundation

Who would oppose such a law?  Unions.  Unions are adamantly opposed to allowing employers the discretion to reward individual efforts (one could accurately state that unions oppose allowing employers any discretion whatsoever, but that's a topic for a different post).  Expect the unions to quietly put pressure on the Democratic majority to kill this bill.  In our humble opinion, the RAISE Act  is primarily an attempt by Congressional Republicans to bait unions into embarrassing themselves by opposing a bill that aims to give their own members higher pay.  Undoubtedly, this will also play into the Republicans' strategy of opposing the Employee Free Choice Act.  But, given the current Democratic majority in Congress, don't expect RAISE to fly. 

Stoel Rives to Host Employee Free Choice Act Seminar in Portland June 11

If passed in its proposed form, the Employee Free Choice Act ("EFCA") will revolutionize federal labor laws by allowing unions to organize without a secret-ballot election. Other onerous provisions include shortening the time to negotiate a first contract and, if the parties do not agree, allowing an arbitrator (a judge) to decide the terms of the first contract. While Congress is debating several compromises over EFCA, just about any version of the law will tilt the playing field sharply in favor of labor unions. Union and non-union employers must be prepared to face new organizing tactics in light of EFCA and the unions’ sophisticated use of the Internet.

Please join Labor & Employment attorneys Victor Kisch and Dennis Westlind for a seminar about EFCA and the do’s and don’ts for remaining union-free in the new environment. We will also discuss other likely changes to labor laws. The seminar will cover:

  • How will EFCA make it easier for unions to organize? What can a non-union employer do under EFCA?
  • How do unions organize in the age of Facebook, MySpace, Twitter, chat rooms, websites, text messages, email and so on?
  • Effective no solicitation policies;
  • What key issues make a work force vulnerable to union organizing? How can an employer address employee concerns?
  • Salts -- If union organizers seek employment at your company, what can you do?

When:

Thursday, June 11, 2009
11:30 - 11:45 a.m. - Registration and Lunch
11:45 a.m. - 1:30 p.m. - Presentation

Cost:

Complimentary (lunch included)

Where:

Stoel Rives LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204

Parking:

We will validate parking for most nearby parking garages.

RSVP:

Space is limited! Click here to register online by June 9.

Supreme Court: Arbitration Provisions in Collective Bargaining Agreements Enforceable on Statutory Claims

Today the United States Supreme Court issued a decision of paramount importance to union employers, holding that arbitration clauses in collective bargaining agreements (CBAs) are enforceable as to statutory claims.  Click here to read the decision in 14 Penn Plaza LLC v. Pyett

In Penn Plaza, several union members asserted claims against their employer under the Age Discrimination in Employment Act, alleging that they were reassigned to different positions because of their age.  The employer moved to dismiss their suits on the basis that the CBA required union members to submit any claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.  Those motions were denied by the lower courts. 

In a 5-4 decision, the Supreme Court reversed, holding that a CBA provision that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.  Because employment-related discrimination claims are "conditions of employment" under the National Labor Relations Act, they are subject to mandatory bargaining.  The court also emphasized that arbitration is an adequate means to resolve statutory claims as well as alleged contract violations. 

The Penn Plaza decision reverses a long line of court cases holding that union members cannot be required to arbitrate statutory claims.  This is a great outcome for union employers, who can now require union employees to arbitrate statutory claims -- generally a more cost-effective and expedient method of resolution.  If your CBA does not contain such a provision (or if the provision does not provide for arbitration as the exclusive means to resolve statutory claims), you might want to consider proposing such a provision in your next contract negotiations. 

President Obama Signs Executive Order Allowing PLAs on Federal Projects

President Obama recently signed his fourth labor-friendly executive order, this time allowing the federal government to require project labor agreements (PLAs) on large-scale federal construction projects.  This order overturns a prior order from President Bush disallowing PLAs.  Click here to read the text of the order.  This latest action follows Obama’s three executive orders earlier this month that reversed a trio of Bush-era orders governing the way federal contractors deal with union workers.

A PLA is defined as "a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project."  PLAs are relatively common in the construction industry.  Unions tend to like project labor agreements as they streamline the bargaining process and generally set high wages and benefits, making it easier for union contractors who pay those higher wages and benefits to get the work. 

Not surprisingly, union officials are very happy about the latest order.  You can bet non-union builders and contractors aren't as happy.  Click here to read the Associated Builders and Contractors' position on PLAs

President Obama Signs Three Executive Orders Affecting Federal Contractors

On January 30, 2009 President Obama signed three executive orders affecting federal contractors and their employees.  Two of the three orders affect union rights.  (Click the title of each order to download it).

  1. Economy in Government Contracting.  Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union, such as printed materials, consultants or meetings (activities sometimes known as "union busting"). 
  2. Notification of Employee Rights Under Federal Labor Laws.  Requires all federal contracts to require contractors to post a notice informing employees that they have a right either to join or  to not join a union. A prior order from President Bush, required contractors to post a notice informing employees that they had a right not to join a union.
  3. Nondisplacement of Qualified Workers Under Service Contracts.  Requires all federal contracts to include a provision requiring any contractor who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.

The orders are part of President Obama's Task Force on Middle Class Working Families and, according to the White House, are designed to "level the playing field for workers and the unions that represent their interests."  If you're curious about what labor unions think of the orders, check out this uncurbed enthusiasm from the AFL-CIO.  We haven't seen a lot of reaction from employers groups, but we'll make the bold prediction that they won't be too happy.  Keep in mind:  these orders only affect federal contractors; if you don't sell goods or services to Uncle Sam, they probably don't apply to you. 

NLRB 2008 Report Shows Efficient, Aggressive Enforcement of Labor Law

Ronald Meisburg, General Counsel for the National Labor Relations Board (NLRB) issued his annual Summary of Operations memo on October 29, 2008.  (The NLRB is the federal agency that enforces our country's labor laws and conducts union elections.)  Mr. Meisburg's memo is full of interesting news and developments on all facets of the NLRB's operations.  To read the complete memo, click here.  If you want the Cliff's Notes version, here you go:

  • Case intake is up: ULP cases are up 1.6%, from 22,147 in FY 2007 to 22,501 in FY 2008.   New representation cases are up 2.3% from 3,324 to 3,400. 
  • Elections are being held sooner:  the NLRB closed 83.5% of all representation cases within 100 days, exceeding its target of 80%.  93% of all initial union representation elections were conducted within 56 days of the filing of the petition, with a median of 39 days from filing.
  • ULPs are being investigated faster:  The Board closed 68.1 percent of all ULP cases within 120 days, meeting its target of 68%, and closed 75.2% of meritorious ULP cases within 365 days, meeting its target of 75%.
  • The NLRB is winning a lot:  Its Regional Offices won 90.8% of Board and Administrative Law Judge unfair labor practice decisions in whole or in part in FY 2008 (up 5% from 2007), and it recovered a total of $70,001,594 on behalf of employees as backpay or reimbursement of fees, dues, and fines.  It obtained reinstatement for 1,564 terminated employees.
  • The NLRB is using injunctions.  The Board authorized a total of 28 Section 10(j) injunction cases in FY 2008, as compared to 25  in FY 2007. The “success rate” (the percentage of 10(j) cases in which the NLRB achieved either a satisfactory settlement or substantial victory in litigation) was 84%.
  • The NLRB is more efficient:  It met all three of its primary goals, closing 83.50% of all
    representation cases within 100 days (target 80%), 68.10% of all unfair labor practice cases within 120 days (target 68%), and 75.22% of all meritorious unfair labor practice cases within 365 days (target 75%). 

What does this mean for employers?  The NLRB is more efficient and pushing cases to resolve more quickly, which may give employers less time to respond to petitions for election.  Also, the Board continues to be more aggressive in litigation and in seeking injunctions, which is rarely good news for employers.  In short, don't take the NLRB lightly. 

U.S. Supreme Court to Hear Six L&E Cases This Term

The U.S. Supreme Court opened its 2008-2009 term on October 6 with six labor and employment law cases on its docket.  (For docket information and questions presented, click on the name of the case). 

  • Locke v. Karass:  may a public employee union may charge nonmembers for representational costs for litigation expenses incurred by the international union on behalf of other bargaining units?
  • Kennedy v. Plan Administrator for DuPont Savings & Investment Plan:  is a qualified domestic relations order (QDRO) is the only valid way under ERISA for a divorcing spouse to waive his or her right to the other spouse's pension benefits?
  • Crawford v. Metro. Gov't of Nashville & Davidson County:  Is an employee who cooperates with an employer-initiated investigation into alleged unlawful discrimination protected by Title VII's anti-retaliation provisions? 
  • Ysursa v. Pocatello Education Ass'n:  does an Idaho law that prohibits local government employers from allowing employee payroll deductions for political activities violate the First Amendment free speech rights of unions and their members?
  • 14 Penn Plaza LLC v. Pyett:  do employees covered by a collective bargaining agreement which providies that statutory employment discrimination claims must be pursued through the contractual grievance and arbitration procedures have a right for a court to decide their discrimination claims?
  • AT&T Corp. v. Hulteen:  must an employer give full service credit for purposes of calculating retirement benefits for pregnancy leaves taken before the Pregnancy Discrimination Act of 1978 if the plan gave full credit for other types of temporary disability leaves? 

Some of these cases (such as the Penn Plaza and Crawford cases) have the potential to make significant changes in existing law.  Stay tuned to the Stoel Rives World of Employment for developments as they occur!

Union Liable for Improperly Accessing Drivers' Licence Records

Earlier this week, the U.S. Court of Appeals for the Third Circuit held labor union UNITE HERE liable under the federal Driver's Privacy Protection Act (DPPA) for accessing the motor vehicle records of Cintas Corp. employees to find their home addresses.  The decision is available here:  Pichler v. UNITE

As part of a 2002 organizing drive, union organizers recorded the license plate numbers on employees' cars in Cintas parking lots, then sought the names and addresses of the vehicle owners, using an online database, private investigators, or information brokers.  Cintas employees sued the union as part of a class action alleging that the union's activities violated the DPPA, and the Third Circuit agreed. 

The court rejected the union's argument that its activity was allowed under DPPA exceptions for "activity related to litigation or law enforcement," stating that the union attempted to conceal its "clear labor-organizing purpose" for obtaining the vehicle records.  The court also held that the union could be liable for punitive damages.

This decision may have far-reaching implications for unions and their conduct of organizing campaigns.  Unions will often go to great lengths to obtain employees' home addresses so that union organizers can make home visits to employees (usually during prime time television) for the purposes of obtaining signatures on authorization cards or petitions.  This decision takes away one common means of obtaining such information. 

Nurses Button Up: Ninth Circuit Nurses May Wear Union Buttons at Work

The Ninth Circuit Court of Appeals recently ruled that a Spokane hospital could not lawfully prohibit nurses from wearing union buttons in areas where they only "might" encounter patients or family members. Health care employers should review their uniform policies to make sure union insignia and other political buttons and stickers are only prohibited in patient care areas and not in other nonpatient areas (such as kitchens, break rooms and hallways), even if employees might casually encounter patients there.