Supreme Court to Rule on Authority of Two-Member NLRB
This week the U.S. Supreme Court agreed to hear an appeal in New Process Steel v. NLRB and determine whether the National Labor Relations Board (NLRB or "the Board") has the authority to decide cases with only two sitting members.
The NLRB is the independent federal agency that administers the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. Typically, the NLRB is made up of five members, appointed by the President. There are currently three vacancies on the Board, leaving only two sitting members. The statute governing the NLRB's powers (29 U.S.C. § 153(b), if you really care) provides that "three members of the Board shall, at all times, constitute a quorum of the Board." Nevertheless, the two remaining Board members have decided a number of cases, under the theory that as long as those two members agree, they would have formed the majority of any three-member quorum anyway.
The Court will resolve a split between the federal appellate courts. In New Process Steel v. NLRB, (the case on appeal) the Seventh Circuit held that the current two-member NLRB does have the power to decide cases. The First Circuit agreed in in Northeastern Land Services v. NLRB. However, the D.C. Circuit disagreed in Laurel Baye Healthcare of Lake Lanier v. NLRB and rejected the power of a two-member Board to do anything. If you want to read more about this dispute, click here to read New Process Steel's Petition for Writ of Certiorari to the Court.
For most employers, New Process Steel will have little relevance--none of the cases decided by the two-member Board were particularly controversial, and none represented a significant departure from existing NLRB law. The only employers with a significant stake in the outcome of New Process Steel will be those employers whose cases were ruled on by the two-member Board. If the Court reverses New Process Steel, those cases will be reheard by a future three-member panel, and will likely be upheld.
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California Senator Dianne Feinstein has withdrawn her support for the Employee Free Choice Act (EFCA), according to this editorial in the Oakland Tribune.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 World of Work will continue to keep an eye on EFCA and bring you updates as they occur.
The First Monday in October: Supreme Court Roundup
The first Monday in October traditionally marks the beginning of the United States Supreme Court's yearly term - and it provides an excellent opportunity to look at the cases the Court will be hearing this year. In an earlier post, the World of Work brought you detailed discussion of the Court's only Title VII case this term: Lewis v. City of Chicago. Here's a sampling of other labor and employment-related cases to watch for throughout the term:
This morning, in Mohawk Industries, Inc. v. Carpenter, the Court will consider whether an employer's attorney's investigation of an internal complaint is protected by the attorney-client privilege. The internal complaint alleged that the company was conspiring to hire individuals who were not authorized to work in the United States. The case involves a former employee's claim for witness tampering; a separate lawsuit involving the alleged conspiracy is proceeding on a separate track.
On October 7, the Court will hear a case involving the Railway Labor Act. The issue in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers is whether the Seventh Circuit Court of Appeals had the power to overturn, on due process grounds, an arbitration award in the railroad's favor.
On October 14, in Perdue v. Kenny A., the Court will consider whether attorney fee awards under 42 USC 1988 can be enhanced when the lawyer does a particularly good job. Section 1988 is a common basis for fees in employment-related lawsuits.
On December 9, the Court will hear Stolt-Nielsen SA v. AnimalFeeds International. This case asks the Court to decide whether an employee bringing a claim under an arbitration agreement may sue, not only on his own behalf, but on behalf of a class of similarly situated employees. In this case, the arbitration agreement did not specifically allow class claims, but the arbitrators allowed those claims anyway.
Finally, on a date to be announced, the Court will hear Granite Rock Co. v. International Brotherhood of Teamsters. This case again involves questions about arbitration. Here, the issue is whether an arbitrator (not a court) may decide whether a valid collective bargaining agreement exists.
New Website for Disability Information
The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker. At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources. For example, clicking here will take you to information about accommodating deaf and hearing impaired workers. And here is useful information about tax incentives for complying with the ADA. The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog. The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.
Online Game Educates on EFCA, Tattooing
We have a favorite new website here at the World of Work: Card Checked: The Game (sorry, failblog.org). Card Checked is an online game where you can play a "young and talented tattoo artist living in America where the Employee Free Choice Act (EFCA) has become the law of the land." As a player, you can dodge union organizers, withstand intimidation from pro-union coworkers, and experience the anguish and horror when union thugs threaten your pet cat, Min Min. (Notably, the game includes links to documentation showing that all of these examples of union organizing tactics are real, even down to threatening pets.)
Card Checked is hosted by the Americans for Tax Reform, a conservative group, and its affiliate, the Alliance for Worker Freedom. While we're not endorsing the politics of these groups, their Card Checked site is creative and informative, and presents accurate information on how union organizing will likely be conducted if EFCA's card check and mandatory aribitration provisions become law. For more on EFCA, click here for the World of Work's EFCA coverage.
Democrats Delete Card Check from Employee Free Choice Act
According to this article in today's New York Times, Senate Democrats have dropped the controversial card check provisions from the proposed Employee Free Choice Act (EFCA).
The card-check provision would have allowed unions to organize employees and begin representing them as soon as a majority of employees signed cards saying they wanted a union. Under current law, unions generally form following secret-ballot elections.
Even though the Democrats hold a 60-40 majority in the Senate, several moderate Democrats opposed the card check provision as depriving workers of the right to vote. By abandoning the card check, Democrats have all but assured the passage of some modified form of EFCA this term.
So if card check is out, what will the bill look like? A revised EFCA will 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 World of Work will continue to keep an eye on EFCA and bring you updates as they occur.
Union Civil Wars and EFCA
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The NY Times recently ran a story about internal union squabbles, which are hindering organized labor from achieving its political goals. The high profile dispute is between the Service Employees International Union (SEIU) and the National Union of Healthcare Workers (NUHW).
The NUHW broke off from the SEIU and is now trying to take over several bargaining units formerly represented by the SEIU. The dispute is complex, but seems to boil down to a power struggle between the two leaders (Andrew Stern at the SEIU and Sal Roselli with NUHW). Hanging in the balance is over 2 million union members.
What does this mean for employers? If you’re non-union, this could be a good or a bad thing. It could be bad if you have to deal with a 3-way race, where your employees vote for the SEIU, NUHW or no union. If that's the case, you can expect the campaign to be active and aggressive with plenty of unfair labor practice charges. On the other hand, employee-voters could get turned off by the two unions attacking each other and decide not to support either.
What does this mean for the Employee Free Choice Act (EFCA - the card check bill)? If key unions can’t work together, the labor movement may have difficulty getting an effective EFCA passed.
Al Franken and EFCA
After months of litigation, Al Franken has been declared the winner of the Senate race in Minnesota. He will be the 60th Democrat in the Senate, which could enable the Democrats to override a filibuster in the Senate.
So the question becomes where does Senator Franken stand on the Employee Free Choice Act (EFCA)? Just as a reminder, this is the bill, which gives unions the right to organize by showing that a majority of employees signed cards and it basically does away with secret ballot elections.
Here is Senator Franken's answer:
Ouch. He doesn't sugarcoat it, does he? Senator Franken is a big supporter of EFCA. So, what does this mean? It makes it more likely that Democrats will push the original bill forward in the Senate or will not compromise (too much) on the original terms. Stay tuned. The EFCA drama is likely to play out in 2009.
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.
Labor Groups Hail Sotomayor Nomination
Judging from organized labor's reaction, Judge Sotomayor may be a pro-labor justice if her appointment is confirmed by the Senate. "Judge Sotomayor is a sound, progressive judge who is blessed with a brilliant legal mind," said United Steelworkers President Leo W. Gerard. Praising her nomination, AFL-CIO President John Sweeney says Sotomayor possesses a “direct and personal understanding of the struggles America’s workers endure every day.” She's also received these glowing recommendations from the SEIU, Change to Win and the Labor Council for Latin American Advancement, just to name a few.
Labor's love affair with Judge Sotomayor goes back to 1995, when she issued the injunction that effectively ended the 1994-95 baseball strike. (In announcing her nomination, President Obama was quick to point that she singlehandedly saved the American Pastime.)
While organized labor falls all over themselves to praise Judge Sotomayor, employers' groups are taking a more cautious approach. The U.S. Chamber of Commerce, known to butt heads with unions over many issues (notably the Employee Free Choice Act), is still weighing whether to endorse Sotomayor. While we don't necessarily see anything in her background to make us nervous, such a warm reception from labor unions certainly should raise an eyebrow or two.
Meanwhile, for those who are interested, here's a clip of Judge Sotomayor speaking about her nomination:
EFCA Update: Arlen Specter and "Quickie Elections"
The latest news on the Employee Free Choice Act (EFCA) is a possible compromise in which EFCA's card-check provision is replaced by a "quickie election" procedure - where an election must be held a very short time (a week to three weeks) after the union requests one from the National Labor Relations Board (NLRB). Another possible compromise provision would be to allow unions equal time with employees if employers choose to hold "captive audience" meetings with employees during a campaign. Both proposals would allow for elections in place of the proposed card check provision, but would sharply curtail employers' ability to express their views to their employees. To learn more, read this article from the Washington Post.
Recently converted Democratic Senator Arlen Specter continues to hold the EFCA spotlight: according to this article in the Pittsburgh Post-Gazette, there is speculation afoot of a deal between Senator Specter and the AFL-CIO and in which Senator Specter would support EFCA in exchange for labor's full backing the 2010 Senate race. If Specter changes his position and backs EFCA, it might pass without substantial amendments.
To read more about EFCA, check out the World of Work's EFCA Coverage.
President Obama Announces NLRB Nominations
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Last Friday, President Obama announced his intention to nominate Craig Becker and Mark Pearce as Members to the National Labor Relations Board (NLRB), the government agency that administers the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. Click Here to read the White House Press release.
Normally the Board has five members, three from the President's party and two from the other, but right now the Board has only two members, one Democrat and one Republican. Both of these nominees are Democrats, meaning the next will be a Republican. Here's what the White House has to say about each:
- Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
- Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.
If affirmed by the Senate, these appointments, along with NLRB Chair Wilma Liebman, will give the NLRB a solid pro-labor majority for the next four years. Regardless of what happens with the Employee Free Choice Act, you can safely expect major changes in labor law, as the Obama Board likely charts a much different course than the Board did during the Bush years.
Costco, Whole Foods and Starbucks Offer Olive Branch on EFCA
According to the Washington Post, executives from three progressive employers, Costco, Whole Foods and Starbucks, have offered a compromise of sorts on the Employee Free Choice Act (EFCA). Their proposed compromise would drop the card-check and mandatory arbitration provisions of the act, but give unions greater access to employees and guarantee union elections within a specific time period. Click here to read the Post's article on the proposal.
The compromise would remove from EFCA the two provisions that give employers the most heartburn: a provision that would allow employees to form a union without a secret-ballot election if a majority sign pro-union cards, and one that would impose binding arbitration if employers and unions fail to reach a contract after 120 days. However, the compromise would keep EFCA's increased penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining, would set a fixed period in which an election must be held, limiting the delays that give employers time to campaign, and would provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break on company premises.
Don't expect either side to jump on the bandwagon soon. Unions are committed to the card-check and arbitration provisions, and anti-EFCA forces will not favor giving unions on-site access to employees anytime soon. But, as the EFCA fight goes on, creative proposals like this one might be what is needed to break a Senate filibuster. Keep watching the World of Work for more EFCA news and updates.
Let the Fireworks Begin! EFCA Introduced in Congress
The Employee Free Choice Act (EFCA), which will amend the National Labor Relations Act to make it easier for unions to organize, was introduced in Congress yesterday. Separaste bills were introduced by Sen. Tom Harkin (D-Iowa), member of the Senate Health, Education, Labor and Pensions Committee, and Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee. Want to know more about EFCA? Check out our continuing coverage here at the World of Work.
Pro-EFCA forces are gathering. The SEIU has put out this fancy new ad for your viewing pleasure (seriously, we got a big kick out of this one! Some say this is over the top, but we respect that.)
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.
Carpenters Union to Pay Oregon Employer $450,000 to Settle Picketing Dispute
The Pacific Northwest Regional Council of the Carpenters and Joiners of America recently agreed to pay Hoffman Construction Co. $450,000 and to settle a lawsuit over alleged unlawful picketing during a 2007 strike in Oregon. The Carpenters have also agreed to pay an additional $200,000 into an escrow account until the union has trained its members on diversity, race and sex discrimination, intimidation, and picket line behavior. Click here to read the consent decree.
A union paying an employer? You read that correctly. Hoffman alleged that Carpenters members engaged in unlawful picketing with mass picketing and improper signage, intimidated workers, disrupted traffic, struck vehicles, picketed reserved gates, made excessive noise, and caused physical damage. Hoffman also alleged that picketers used derogatory racial and sexist epithets, obscenities and threatening language aimed at replacement workers and union members crossing picket lines.
This is an important decision for employers. While lawsuits against unions for picket line misconduct are fairly common, a decisive outcome like this is very rare. This sets a precedent that such picket line behavior is not acceptable, and may encourage unions to better control picketers.
President Obama Nominates Wilma Liebman to Chair NLRB
Late last month, President Obama appointed Wilma B. Liebman to chair the National Labor Relations Board (NLRB), the agency that enforces federal labor law. Click here to read the NLRB's press release on the appointment. Chairman Liebman has served on the Board since November 14, 1997. First appointed by President Clinton, she is now serving her third term, which will expire on August 27, 2011.
Chairman Liebman is considered one of its most union-friendly members, and was often a strongly dissenting voice on the Board during the eight years of the Bush administration. Her appointment was not unexpected, and confirms predictions that the NLRB would shift to the left during the Obama administration.
Don't think the Board will change under Liebman's watch? Watch her testify before congress regarding some controversial decisions under the Bush Board, and perhaps you will change your mind:
WSJ Reports EFCA Unlikely to Pass Soon
According to yesterday's Wall Street Journal, the Employee Free Choice Act (EFCA) is not likely to become law in the first 100 days of the Obama Administration. Because Republicans are threatening a filibuster, congressional Democrats are likely to instead focus their early efforts on two other low-hanging fruit: the Lilly Ledbetter Fair Pay Act, which would extend the statute of limitations under civil-rights laws for bringing suits against employers over pay; and the Paycheck Fairness Act, which would strengthen remedies under the Equal Pay Act of 1963 for women.
If passed, EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. It is expected to drastically increase union organizing and unionization rates.
Threats of a Senate filibuster and a presidential veto prevented EFCA's passage in 2008, but the labor movement and congressional Democrats hoped that a filibuster-proof majority in the Senate would allow its passage in 2009. We're not ready to write EFCA off just yet - what remains to be seen is if a compromise version will sufficiently appease the act's proponents while weakening opposition. Stay tuned to the World of Work for more updates.
The Employee Free Choice Act: Maybe Not a Done Deal?
As reported earlier in the World of Work, the Employee Free Choice Act (EFCA) will be a high priority for Congress and President-Elect Obama in 2009. The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates.
Two things prevented EFCA from passing into law back in in 2007 - an almost certain veto from President Bush, plus opposition from the Republican minority in the United States Senate. 51 Senators voted for cloture on EFCA - 50 Democrats (all except one who was absent) plus Pennsylvania's Arlen Specter; however, 60 votes are needed to end debate and bring the bill to a vote. Now that the Democrats appear on the cusp of controlling 59 Senate seats, assuming Arlen Specter maintains his support for EFCA, there's nothing to stop the bill from passing, right?
Not so fast, warns FiveThirtyEight.com's Nate Silver. Arkansas Democrat Blanche Lincoln has now indicated that she's not so keen on EFCA and might vote no. Her no vote would leave the Democrats one vote short of stopping a Republican filibuster. Click here to read the rest of Nate Silver's fascinating analysis of EFCA in the Senate. And don't forget to keep following the World of Work for more EFCA updates.
Supreme Court Rejects Appeal on Aliens' Right to Vote in Union Elections
Earlier this month, the United States Supreme Court declined to review a ruling from the Court of Appeals for the District of Columbia Circuit holding that unauthorized aliens are "employees" under the National Labor Relations Act (NLRA) and therefore entitled to cast votes in a union election.
In Agri Processor Co. v. NLRB, the employees elected the United Food and Commercial Workers Union Local 342 as their bargaining agent in 2005 election; however, the employer refused to bargain with the union on the basis that 17 of the 21 employees who cast ballots were not legally authorized to work in the United States, and therefore not "employees" under the NLRA.
In a 2-1 decision that was affirmed by the D.C. Circuit, the National Labor Relations Board held that the certification of Local 342 was valid because the voters were employees under the NLRA even if they were hired in violation of the Immigration Reform and Control Act. That decision will stand now that the Supreme Court has passed on its opportunity to review the case. With the passage of the Employee Free Choice Act appearing all but certain, authorization cards signed by unauthorized alien employees will likely be held valid as well.
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 World of Work for developments as they occur!
"Permanent" Strike Replacements Can Be Employed At Will
Earlier this week, the Seventh Circuit Court of Appeals ruled that an employer does not violate the National Labor Relations Act by refusing to reinstate economic strikers because it had hired permanent replacements, even though those "permanent" workers are at-will employees. The decision in United Steelworkers v. NLRB upheld an earlier National Labor Relations Board ruling, also in favor of the employer.
The court upheld the NLRB's ruling board permissibly held that employer and the replacement employees had a "mutual understanding" that, despite an at-will clause in the replacements' employment applications, their employment was, for purposes of replacing the strikers, "permanent." The Court agreed with the NLRB that an at-will employment clause in the striker replacements' job applications did not make them "temporary" replacements who normally must be terminated in favor of returning strikers.
This ruling gives employers greater flexibility in hiring permanent replacement workers in the event of a strike. Nevertheless, whether an employer may "permanently" replace strikers in a particular strike is a very complex legal issue. In any strike situation, employers need to be very careful about whether to hire "permanent" or "temporary" replacement workers, and to only permanently replace strikers if they are legally entitled to do so. And in any event, employers may not ever replace a striking Tina Fey, because she's too funny.
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.
Ninth Circuit Overturns NLRB in Dues Checkoff Case
Earlier this week, the Ninth Circuit Court of Appeals overturned for the second time a decision by the National Labor Relations Board, and held that two Las Vegas casinos violated the National Labor Relations Act by unilaterally terminating dues checkoff without first bargaining with the union over that decision. Local Joint Executive Bd v. NLRB (9th Cir 08/27/2008).
The employer argued that the parties' collective bargaining agreement allowed it to end dues checkoff at the expiration of the agreement and the NLRB agreed; the Ninth Circuit, however, held that the contract language does not show a "clear and unmistakable waiver" of the unions' right to bargain over ending dues checkoff. This was the second time this case was before the Ninth Circuit - the first time, the court remanded the case to the NLRB to "articulate a reasoned explanation" for its conclusion that dues-checkoff disputes should be excluded from the "unilateral change doctrine" recognized in NLRB v. Katz, 369 US 736 (1962).
The lesson for union employers: remember your obligation to bargain with the union in good faith before making any unilateral change to the terms and conditions of employment, unless there the union has clearly and unmistakenly waived its right to bargain over that change. Unilateral changes might get a pass from the current NLRB, but they are unlikely to be tolerated by the appellate courts.
NLRB Issues New Guidelines on Employee Political Activity
According to the new guidelines, employee political speech that touches on employment issues may be protected by Section 7 of the National Labor Relations Act. In essence, if there is a direct nexus between employment-related concerns and the specific issues that are the subject of the political speech, then the speech is protected. Of course, you can still counsel the employee to confine his activities to appropriate places and times, if it is interfering with work.
So, the employee's views on why the U.S. should pull out of the U.N.? Why industrial hemp should be legalized? Probably not protected speech. The employee's views on the minimum wage, or the expansion of medical marijuana laws to require workplace accommodation? Probably both protected under the NLRA.
AFTRA Ratifies Three-Year Contract
Good news for us consumers of entertainment: members of the American Federation of Television and Radio Artists just ratified a new three-year prime-time television agreement with major Hollywood studios and networks. AFTRA represents about 70,000 radio and television performers. Negotiations between the studios and the Screen Actors Guild, however, continue, threatening the continued production of such fine fare as Lipstick Jungle. Which might also be good news.
Big Day at the Supreme Court: Four New L&E Decisions
Today the U.S. Supreme Court issued four labor and employment-related decisions; none, however, were big surprises or substantial changes in the law.First, in Meacham v. Knolls Atomic Power Laboratory, the Court held 8-0 that an employer defending an Age Discrimination in Employment Act case bears the burden of proving a "reasonable factors other than age" or "RFOA" affirmative defense. Truth be told, most defense lawyers have assumed that it was the employer's burden to prove the affirmative defense; this decision simply confirms that assumption. Continue Reading...
