Labor Relations Today

Labor Relations Today

New Board Nominee Goes Before HELP Committee

Posted in NLRA, NLRB, Quick Hits, Senate

Yesterday, the Health, Education, Labor and Pensions Committee (HELP) held a hearing concerning Lauren McFerran’s nomination to the National Labor Relations Board.  The reader may recall that Ms. McFerran is President Obama’s second choice for this position, with first-choice Sharon Block’s nomination being withdrawn under pressure from Senate Republicans.

Member Nancy Schiffer’s term expires on December 16 of this year, so the President and Senate Democrats are scrambling to fill her seat during the lame-duck session.  During the hearing, Senate Dems heaped praise upon McFerran and the Board’s current pro-employee bent:

“It is my hope that by promptly confirming Ms. McFerran’ s nomination to fill the looming vacancy, we can continue the progress that has been made recently, and begin a new era where orderly transitions on the NLRB are the norm,” according to [Senator Tom] Harkin.

Senate Republicans grilled McFerran on several major hot-button issues during the hearing, including her takes on the Northwestern football team’s union vote and the General Counsel’s push to redefine the “joint-employer” test.  Without going into specifics, McFerran promised to take a dispassionate look at the issues:

“If the issue were to come before me as a board member, all I can pledge to you is that I would consider it with a very open mind,” she said. 

Labor watchers expect that McFerran’s nomination will be sent to the full Senate in the coming weeks.  With the “nuclear option” eviscerating Republicans’ ability to block presidential nominees, it is assumed that McFerran will receive a rubber stamp from the full Senate.  Stay tuned.

Facebook Bus Drivers Join Teamsters

Posted in NLRB, Quick Hits, Representation Elections, Unions

Late last night, shuttle bus drivers working at Facebook in Silicon Valley, California voted to join the Teamsters union.  The final vote tally was 43 ayes and 28 nays. 

Teamsters officials are hopeful that the shuttle bus drivers’ vote will kickstart organizing campaigns at other locations in the area:

“I hope going forward this will set a trend with other drivers in Silicon Valley and the tech industry so we can set a pattern to make the companies pay these drivers decent wages and benefits so they can live a decent life,” [Secretary of Local 853] said.

The Teamsters’ organizing campaign was able to gain traction because the bus drivers work split shifts, meaning that they work several hours in the morning and several hours in the evening.  However, the drivers are not paid for their time between shifts, and many have reported sleeping in their cars in order to kill time.

Either side can file objections to the vote within seven days.  More on this story can be found here:

ALJ Decision Approves Board Ratification Process And Requires Hospital To Continue Pay Raises After CBA Expires

Posted in NLRA, NLRB, NLRB Administration, Remedies, Unfair Labor Practices, Unions

In a decision issued this past Monday, National Labor Relations Board Administrative Law Judge Susan A. Flynn ruled that Wilkes-Barre General Hospital violated the National Labor Relations Act by failing to pay length-of-service based raises to nurses working at its facility in Wilkes-Barre, Pennsylvania. The case, styled Wilkes-Barre Hospital Company, LLC, arose after the Hospital’s most recent collective bargaining agreement (CBA) with its nurses expired on April 30, 2013. The nurses, represented by the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP), contended that despite the expiration of the CBA, the Hospital was still required to pay out length-of-service raises. Those raises were paid out every year in January if a nurse moved to a new classification based on the number of years he or she had been employed as a nurse. When the Hospital refused to issue the length-of-service raises to the nurses this past January, PASNAP filed unfair labor practice charges with the Board, alleging that the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act.

The Hospital put forward a notable preliminary defense, arguing that the Regional Director did not have the authority to issue a complaint in this matter. Because the Board was without the authority to act from January of 2012 to August of 2013 since it lacked a quorum according to the Noel Canning decision, any actions taken by the quorumless Board during that time were invalid, including the appointment of Regional Director Walsh. Not surprisingly, the ALJ gave this argument short shrift. Consistent with holdings from U.S. District Courts (which can be found here and here) the decision explained:

The power to appoint Regional Directors during [the quorumless] period was delegated to the General Counsel. The Board had issued an Order Contingently Delegating Authority to the Chairman, the General Counsel, and the Chief Administrative Law Judge that was effective [prior to the quorumless period].

Accordingly, per the ALJ, the General Counsel had the authority to appoint Regional Directors.  Since Regional Director Walsh was appointed by the General Counsel during the quorumless period, Regional Director Walsh’s appointment was valid.  The ALJ answered a further question that @LRToday raised back in August of this year: namely, whether the Board’s August 4, 2014 ratification of all “administrative, personnel, and procurement matters taken by the Board” during the quorumless period was effective. Judge Flynn answered that the ratification action was appropriate, which further solidified Regional Director Walsh’s authority to issue the Complaint.

Walsh was selected by the General Counsel and, in approving the selection without dissent, no Board Member requested full-Board consideration of the decision [to ratify the quorumless Board's actions].

The ALJ then turned to the merits of the case and determined that the Hospital had a statutory obligation to pay the raises. The decision explained that an employer violates Section 8(a)(5) of the Act if it changes employees’ wages without first providing the union with notice and the opportunity to bargain. This tenet of labor law still applies despite the expiration of a CBA. In fact, in situations where the CBA has expired, “the employer is obligated to maintain the status quo as to mandatory subjects of bargaining unless the parties have bargained to impasse.” Here, the parties had indisputably not bargained to impasse before the Hospital refused to pay the length-of-service raises in January 2014.

Accordingly, the ALJ ruled that the Hospital had violated the Act by failing to pay the nurses their length-of-service based raises in January of 2014. Nurses who moved from one experience level to the next were thus granted the wage increase they should have received in January of 2014. The Hospital was also required to post a notice stating 1) that it would not unilaterally discontinue pay increases and 2) that it would bargain with PASNAP before making any changes to the nurses’ wages, hours, or terms and conditions of employment.

This decision is noteworthy for two reasons. First, the ALJ accepted the Board’s August 4, 2014 ratification of all acts taken by the quorumless Board out of hand.  Thus, arguing that a Regional Director who was appointed during the quorumless period did not have the authority to issue a Complaint will likely not get far with ALJs or the Board. Second, it is a good reminder that employers must maintain the status quo by continuing any past practice of regularly scheduled wage increases even after the expiration of a collective bargaining agreement.  Failing to do so could bring about unfair labor practice charges and unforeseen monetary liabilities.

Alabama Copper Plant Workers Join USW

Posted in NLRB, Quick Hits, Representation Elections, Unions

The Associated Press is reporting that workers employed at GD Copper USA in Pine Hill, Alabama have voted to join the United Steelworkers (USW).  The vote, which took place on November 7, counted 75 ayes and 74 nays. 

The narrow union win came despite Alabama Governor Robert Bentley sending a letter to the employees urging them to reject union representation. 

“Let’s give GD Copper a chance to respond and address your concerns in an open way when they arise,” Bentley wrote. “This is only fair, especially when the company has made such an investment in you and your community.”

Not surprisingly, the company has filed objections to the election with the National Labor Relations Board, which could lead to a hearing.  However, the content of those objections was not immediately clear.

We will keep you posted as this story continues to develop.

 

 

Board ALJ Orders UPMC To Reinstate Workers

Posted in NLRA, NLRB, NLRB Administration, Quick Hits, Remedies, Unfair Labor Practices, Unions

In a voluminous ruling issued last week, a National Labor Relations Board Administrative Law Judge ruled that University of Pittsburgh Medical Center (UPMC) violated the National Labor Relations Act by terminating four employees for engaging in protected and concerted activity.  The employees must be returned to work within two weeks of the ruling.

The ALJ also ordered UPMC to post a notice in prominent places at the hospital in order to inform workers that UPMC violated the NLRA.  The posting further explains that UPMC will not surveil employee conversations and will further not “coercively interrogate” employees with regards to their union activities.

A UPMC spokesman ripped the ALJ’s ruling in a short statement, but noted that the hospital was not surprised by the decision.

“That said, the findings were not unexpected. U.S. District Judge Arthur J. Schwab has previously expressed his concern that the NLRB has become ‘the litigation arm of the union and a co-participant in the ongoing organization effort.’ We will pursue an appeal to the full Labor Board and are exploring other legal options.”

More on this story can be found here:

Walmart Strikes Arrive In Time For The Holidays

Posted in Quick Hits, Unions

Yesterday, police arrested 23 Walmart employees outside of Los Angeles who were protesting their employer’s pay practices.  While not directly affiliated with the “Fight for Fifteen,” the employees in question were demanding that the big box giant pay them at least $15 per hour.

The striking employees first entered the LA-area Walmart store and engaged in a sit-down strike.  Eventually, the strikers left the store and sat down at a major intersection, blocking traffic.  At that point, the police arrived on scene and began making arrests.  The arrested employees were cited for unlawful assembly and failure to disburse, which are both misdemeanors.  They were then released.

The protest was organized by OUR Walmart, a grassroots organization backed by the United Food and Commercial Workers union.  Labor watchers expect protests and strikes to continue at Walmart stores across the country as the holidays draw nearer.

More on this story can be found here:

 

 

 

VW Implements New Labor Policy, Potentially Paving Way For UAW

Posted in NLRA, NLRB, Representation Elections, Uncategorized, Unions

Yesterday, Volkswagen AG (VW) released their long-awaited new labor policy, which comes as welcome news to the United Auto Workers (UAW) and other labor groups. The so-styled Community Organization Engagement policy is noteworthy in that it will provide labor groups with differing levels of access depending on the number of VW workers in their ranks. For example, the greater the number of workers in a given labor group, the more likely that group will be able to meet and confer with management officials.

A VW official explained the rationale behind the new policy in a short statement:

“We recognize and accept that many of our employees are interested in external representation, and we are putting this policy in place so that a constructive dialogue is possible and available for everyone,” said Sebastian Patta, executive vice president for human resources at Volkswagen Chattanooga. “Volkswagen has a long tradition of positive employee engagement at our plants around the world, and we welcome this in our company.”

Labor groups with a high volume of members could even be granted meeting space at VW’s Chattanooga facility, where they would be allowed to speak to management. Those groups would presumably be allowed to post notices on the premises as well. A given labor group must count at least 15 percent of VW’s employees to be “recognized” under the policy.

Surprisingly, the UAW has reacted warily to the new policy:

“We appreciate Volkswagen’s effort to articulate a policy for how it will engage with UAW Local 42 and its members in Chattanooga. We have questions about this policy, which we’ll work through in discussions with management. But this is a step forward in building stronger relations between management and employees,” said Gary Casteel, secretary-treasurer of the UAW. “Today, we will begin working with Volkswagen so the company can verify our substantial membership level, which now is in excess of a majority of workers at the plant. When that verification has been completed, we will take advantage of the company’s offer to establish regular meetings.”

As the reader may recall, the UAW suffered a highly-publicized defeat at VW’s Chattanooga, TN plant back in February of this year. Despite running unopposed, the union still lost the election by a count of 712 to 626. The UAW subsequently filed objections to the election, but those objections were withdrawn. The UAW claimed that it withdrew its objections because Tennessee politicos were refusing to participate in the National Labor Relations Board’s investigation.

Even though the union lost the VW election, the UAW opened a new local mere miles from the Chattanooga plant. Membership in Local 42 is strictly voluntary as of now. However, labor watchers speculate that Local 42′s end-game is to earn official recognition from VW without having to hold a union election.

The UAW union has remained active throughout the Southeast despite losing the election last February. However, it remains to be seen if the so-called “Southern Strategy” will be successful. While results have not exactly gone the union’s way so far, labor watchers expect the UAW’s organizing efforts to continue apace. We here at @LRToday will be following the implementation of this policy and the UAW’s organizing efforts closely, so stay tuned.

Mid-Terms Aftershock: President Obama Pulls Sharon Block’s Nomination, Nominates Senate Lawyer to NLRB

Posted in NLRB, NLRB Administration, Presidential Appointments, Senate, White House

In a surprising move yesterday, President Obama withdrew the nomination of Sharon Block to the National Labor Relations Board because of Republican objections. Block previously served on the Board from early 2012 to mid-2013 under a recess appointment, which was ruled unconstitutional by the Supreme Court in Noel Canning in June of this year. Despite strong Republican opposition to Block, President Obama nominated her to replace Nancy Schiffer, whose term ends December 16, 2014.

The withdrawal of Block’s nomination comes as a surprise, even given the Republicans’ strong showing in the mid-term elections, given that Block’s nomination passed the HELP committee in September and was expected to get a quick vote in the Senate’s lame duck session. Commentators believe that Block’s nomination was pulled to ensure a quick confirmation of Schiffer’s replacement before December 16 to prevent a standstill at the NLRB with only two Democrat and two Republican members. Given that Democrats will likely try to address a number of other matters during the waning days of their control of the Senate,

Senate Republicans would have needed only to disrupt or delay the agenda to sideline a vote on Block. If the White House does not get an NLRB nominee approved before the Senate session ends, it will likely find it very hard to get any nominee through next year when the Republicans will have the majority.

In Block’s stead, President Obama has nominated Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP). According to the Wall Street Journal, prior to serving on the HELP committee as senior labor counsel for Sen. Ted Kennedy and Sen. Harkin, McFerran was an Associate at Bredhoff & Kaiser, PLLC and a Law Clerk for Chief Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.

For additional coverage:

UAW Hoping For VW Recognition

Posted in NLRA, NLRB, Quick Hits, Representation Elections, Unions

The long-running saga between the United Auto Workers and Volkswagen’s Chattanooga, Tennessee plant continues.  Several news outlets are reporting that VW officials will announce a change in policy that will clear the way for the UAW to be recognized without a vote.  As things stand now, Local 42 of the UAW is a voluntary organization.  But union officials recently sent out a letter to their constituents and expressed confidence that the Local will soon be recognized.

“It is our understanding that Volkswagen this week will announce a new policy in Chattanooga that will lead to recognition of Local 42,” the union said in a letter to its voluntary members on Monday. “We await details from the company on this policy.” 

 

The policy change at this point is unclear, but the decision to seek to recognize the union apparently resulted from some horse-trading between UAW officials and VW management officials in Germany. 

The reader may recall that last February, the UAW lost a highly-publicized election at the VW plant.  The election loss was particularly embarrassing for the union because it ran unopposed.  The fall-out resulted in the UAW filing charges with the NLRB, which were eventually dropped.

Achieving recognition at VW’s plant in Tennessee would go a long way towards legitimizing the UAW’s “Southern Strategy.”  For some time now, the union has made it clear that it is seeking to bring plants and factories below the Mason-Dixon line into the fold.  To this point, successes have been few and far between.   

More on this story can be found here:

D.C. Circuit Rubber Stamps Becker’s Appointment

Posted in Federal Court Litigation, NLRB, Quick Hits

In a move that came as a surprise to (almost) no one, the U.S. District Court for the District of Columbia ruled last week that controversial former National Labor Relations Board Member Craig Becker’s recess appointment to the Board was constitutional.  In making its ruling, the court relied directly on last summer’s Noel Canning decision issued by the U.S. Supreme Court, which reasoned that the President can make recess appointments if the Senate is in a recess for longer than 10 days. 

“The Supreme Court’s opinion in Noel Canning establishes that a recess of 10 or more days suffices under the Recess Appointments Clause. We know that because Noel Canning approvingly referred to and heavily relied on the ‘thousands’ of recess appointments in the nation’s history, the vast majority of which occurred during recesses of 10 or more days,” Circuit Judge Brett Kavanaugh wrote.

As stated above, this decision comes as no surprise to labor watchers.  In fact, Board ALJs have already reached the same conclusion.  Accordingly, any employer defense based on a recess-appointment argument will not hold water if the employer is challenging Becker’s tenure.