Labor Relations Today

Labor Relations Today

Chamber Fires Another Round At Quickie Election Rules

Posted in Federal Court Litigation, House of Representatives, NLRA, NLRB, NLRB Rule-Making, Quick Hits, Representation Elections, Senate, Unions, White House

This week, the U.S. Chamber of Commerce and other trade groups filed a Motion in the U.S. District Court for the District of Columbia, arguing that the National Labor Relations Board’s “quickie election” rules should be invalidated. The rules, which were published at the end of last year in the Federal Register, would allow a labor union to hold an election in as little as 11 days after the filing of an election petition with the NLRB. As the reader may recall, the rules are set to go into effect on April 14, 2015, unless the Court intervenes or the President adopts twin resolutions issued by the U.S. House and Senate disapproving of the rules (which is highly unlikely).

The Chamber’s Motion attacks the rules on three fronts. First, the Chamber argues that the rule exceeds the Board’s authority under the National Labor Relations Act. Specifically, the Chamber contends that the hearing procedures contained within the new rules will not amount to an “appropriate” hearing, which is required by section 9(c) of the National Labor Relations Act, because the rule will allow the Board to hold an election even if the parties have not been able to present evidence regarding voter eligibility, inclusion, and supervisory status.

Next, the Chamber argues forcefully that the rules are “arbitrary and capricious,” in violation of the Administrative Procedure Act.

“Under the guise of administrative ‘tweaking,’ the board has undertaken to fundamentally alter the NLRA’s election process in a way that upsets the balance Congress struck (and the Constitution requires) between employees’ statutory right to vote for or against union representation and an employer’s right to engage in free speech and receive due process,” they said.

In short, the Chamber opines that the rules offer a solution to a problem that does not exist. Since the Board has been able to hold most elections in fewer than 42 days after the filing of an election petition (which is an internal timeline set by the Board), there is no need to further shorten the time between a the filing of an election petition and the actual election. Doing so, the Chamber contends, will lead to a “vote now, understand later” situation for most voters because employers will have little time to educate employees about how a union shop would run.

Finally, the Chamber briefly contends that the rules violate the U.S. Constitution by forcing employers to engage in speech. The new rules would require an employer facing an election to post a notice to its employees informing them of the election. This, the Chamber argues, the Board cannot do. Forcing a private party to “disseminate speech that it does not wish to convey . . . would allow the government to compel individuals to engage in any form of speech,” which cannot be the law.

While the parties continue to debate the merits of the Board’s “quickie election” procedures in Court, the Board has already begun training its staff on the new rules. Assuming the rules go into effect as scheduled on April 14, employers would be wise to consult an experienced labor lawyer regarding union avoidance techniques. Failure to do so could result in an unpleasant surprise and a fire-drill “quickie election” taking place.

Teamsters Target Bay Area Shuttle Bus Drivers

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

The International Brotherhood of Teamsters (Teamsters) have been waging a campaign to organize shuttle bus drivers working at Bauer’s Intelligent Transportation’s headquarters in San Francisco, CA.  In a sign that the organizing campaign is escalation, the Teamsters filed unfair labor practice charges against Bauer’s with the National Labor Relations Board, alleging that company officials have unlawfully surveilled employees.  The charges further allege that the company has taken unlawful steps to thwart a possible union election.

The charges are currently being investigated by Board officials.  As of now, it is uncertain whether a complaint will issue.

The unfair labor practice filing is certainly not the first flash point in the Teamsters’ campaign to organizer Bauer’s.  The Teamsters have also accused Bauer’s of becoming hostile to union organizers during an information sessions hosted by the Teamsters last month.  However, union officials would not go into specifics about what was said.

Thus far, the organizing campaign centers around the Teamsters’ claim that a union will increase wages from $18 to $24 an hour, which amounts to a 33 percent raise.  Stay tuned to @LRToday for updates on the unfair labor practice charges, and on the Teamsters’ ongoing campaign efforts.

Chairman Pearce Testifies Before House

Posted in House of Representatives, NLRA, NLRB, Quick Hits

Yesterday, National Labor Relations Board Chairman Mark Gaston Pearce was called to testify at a House of Representatives budget hearing.  Chairman Pearce’s testimony covered a wide range of topics, beginning with the Board’s backlog of cases resulting from the Supreme Court’s invalidation of President Obama’s 2012 recess appointments to the Board.

Chairman Pearce noted that the Board has worked diligently to shrink its backlog, but admitted that the agency still had about 27 cases it needed to re-decide.  He expects the Board to eliminate the backlog prior to the end of the calendar year.

Not surprisingly, House Republicans at the hearing took the opportunity to express their irritation with some of the Board’s recent actions, including the December 2014 passage of the “ambush election” rules.  Chairman Tom Cole (R-OK) posited that the rule seemed very pro-Labor:

“I think that two weeks is certainly not enough time to organize something as important as the election of union representation,” Cole said.

Chairman Pearce acknowledged that the Board had recently been the subject of some controversy, but chose not to debate Congressman Cole’s assertion.

As we have noted previously, the “ambush election” rules have been disapproved of by both the House and Senate, although President Obama will very likely veto the attempt to repeal the rules.

NLRB Set To Hold Hearing re Columbia Grad Student Union

Posted in NLRA, NLRB, Quick Hits, Unions

On March 31, the National Labor Relations Board’s New York regional office will conduct a hearing to determine whether graduate students working as research and teaching assistants at Columbia University in New York City should be allowed to conduct a union election.  As we’ve discussed on this blog previously, graduate students currently do not have the right to unionize under NLRB jurisprudence.  However, the Board may be prepared to change this view, which it has held since the 2004 Brown University decision.

In a short statement, the grad student organizer praised the Board’s decision to hold a hearing:

“GWC-UAW is gratified by the NLRB’s announcement that hearings on restoring our collective bargaining rights will begin on March 31st,” Paul Katz, a GWC organizer and graduate student in the history department, said in an email.

Predictably, the university is arguing that the graduate students are not employees and thus are not allowed to unionize.  Further, the university’s president believes that allowing the students to unionize would “complicate” the relationship between the parties.

We will be watching this hearing closely, so stay tuned to @LRToday for updates.

House Passes Measure Disapproving of Quickie Election Procedures

Posted in House of Representatives, Legislation, NLRA, NLRB, Quick Hits, Representation Elections, Senate, Unions, White House

As expected, the U.S. House of Representatives followed the Senate’s lead and passed a measure under the auspices of the Congressional Review Act (CRA) that expresses disapproval of the National Labor Relations Board’s new “quickie election” procedures.  Among other radical changes made by the Board, the “quickie election” procedures would allow a labor union to hold an election in as little as 11 days after filing an election petition.  Further, the rules would force employers to turn over employee email addresses to a labor union.

The House voted largely along party lines, with 232 representatives approving the measure and 186 members opposed.  This echoed the Senate’s vote breakdown, which was 53 for and 46 against.

In a short statement, the White House hinted that it would veto the disapproval measure:

[The NLRB’s] “modest reforms will help simplify and streamline private sector union elections, thereby reducing delays before workers can have a free and fair vote on whether or not to form or join a union.”

Assuming the White House does veto the measure, the procedures are expected to take effect on April 14th.  And it is unlikely that Republican Senators can garner enough votes to override the almost-certain veto.

However, there are also several legal challenges being mounted against the implementation of the procedures, most notably from the U.S. Chamber of Commerce, which argued that the rules “would stack the deck against employers.”  That case and another similar suit are currently being briefed in U.S. District Court.

Seattle U Appeals Board’s Adjuncts Ruling

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

Earlier this week, Seattle University appealed a recent National Labor Relations Board ruling, which held that impounded ballots cast in a recent election by the university’s adjunct faculty should be counted.  In its appeal, the university is arguing that the votes cast in last summer’s election should not be counted because the university should not be subject to the Board’s jurisdiction:

“The issue is not whether faculty may organize,” Seattle University lawyers wrote in the appeal. “Rather, the issue is whether the government can and should exercise control or influence over how a religiously-affiliated university carries out its religious mission.”

Adjunct faculty make up more than half of the school’s faculty.  These adjunct faculty members are not in tenure-track positions, and thus have sought to form a union in order to bargain collectively with the university over pay, benefits, and other working conditions.

Adjunct faculty members commented briefly on the appeal, stating that they expect the National Labor Relations Board to dismiss the appeal quickly.

Stay tuned to @LRToday for further updates on this case.

House Takes Up Ambush Election Disapproval Measure

Posted in House of Representatives, NLRA, NLRB, Quick Hits, Representation Elections, Unions

The U.S. House of Representatives is currently debating a resolution brought under the Congressional Review Act (CRA) that would express its disapproval of the National Labor Relations Board’s new “quickie election” procedures.  The quickie election rules, set to go into effect next month, could allow a labor union to hold an election in as little as eleven days after the filing of an election petition with the Board.

Since the text of the rule was released in December 2014, Republicans have lined up to lambast its procedures, arguing that they amount to an “ambush”:

“Protecting against union tactics that ambush and bully small businesses and employees should not be a partisan issue,” House Majority Leader Kevin McCarthy (R., Calif.) said in a statement. “I hope the president seizes this opportunity instead of another veto of more American jobs.”

The Senate has already passed its version of the disapproval measure, largely on party lines.  But regardless of whether the House passes the measure, it will very likely be vetoed by the President.  And unfortunately for the rule’s opponents, it is highly unlikely that the Senate could garner enough votes to override the President’s veto.

 

Longshoremen Hit With $60K Fine

Posted in Federal Court Litigation, NLRA, NLRB, Quick Hits, Remedies, Unfair Labor Practices, Unions

Last week, U.S. District Court Judge Michael Simon ordered the International Longshore and Warehouse Union to pay almost $60,000 to the National Labor Relations Board because the union engaged in unlawful activity at the Port of Portland.  Per a ruling from Judge Simon rendered in 2012, the union organized a work slowdown while in the midst of a labor dispute with the terminal operator, ICTSI Oregon.

In a short statement, ICTSI Oregno officials trumpeted the Judge’s Order:

“Judge Simon ruled that ILWU leadership encouraged ILWU members to engage in unlawful work stoppages and slowdowns and directed and coordinated their actions. Judge Simon also found that, in some cases, ILWU Local 8 officers themselves directly participated in this conduct,” ITCSI North American CEO Elvis J. Ganda said.

A union official, not surprisingly, downplayed the ruling, noting that it was “standard procedure” for Board attorneys to seek attorney’s fees if the Board prevailed in court.

More on this story can be found here:

 

Steelworkers Strike Ends

Posted in Negotiations, Quick Hits, Unions

Reports are coming in that the longest oil-refinery strike in a generation is coming to an end after the United Steelworkers and Royal Dutch Shell PLC, the company representing refinery operators, reached a tentative labor deal.  Terms of the agreement in principal were not immediately available, but union representatives stated that it includes annual wage bumps, as well as the continuation of employees’ current health care plan.

“Included are hiring plans to be developed in conjunction with recruitment and training programs,” said USW International Vice President Tom Conway.

As noted above, the deal in principal will bring to an end a six-week labor strike.  At its peak, more than 6,000 employees were off the job walking the pickets.

More on this story can be found here:

NLRB General Counsel Takes Aggressive Stance to Address Immigration Issues

Posted in NLRA, NLRB, NLRB Administration, Remedies, Unfair Labor Practices
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On the heels of the President’s executive action on immigration, Richard Griffin, the National Labor Relations Board’s General Counsel, issued GC Memorandum 15-03 on February 27, 2015 providing updated procedures to address issues that might arise in the investigation and prosecution of unfair labor practice cases involving employees’ immigration status. The NLRB’s new procedures are noteworthy not only because the NLRB will clearly be more aggressive in cases involving undocumented workers, but also because they might result in more unfair labor practice charges filed by such employees hopeful that the NLRB will help them obtain a visa.

While an employee’s immigration status is irrelevant as to whether an employer violates the National Labor Relations Act vis-a-vis that employee, immigration status is relevant as to the remedies available to the Board in the event it does find a violation of the Act. In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court, in a 5-4 decision, held that federal immigration policies prohibit the NLRB from awarding undocumented workers back pay and reinstatement. Thus, the General Counsel’s new procedures seek to address this shortcoming by either remedying alleged discriminatees’ undocumented status or seeking alternative remedies.

First, the General Counsel instructs its regional offices not to consider an individuals’ immigration status in the investigation of whether the Act has been violated.

Where the charged party’s defense to an alleged unlawful discharge is that it was motivated by the need to comply with immigration laws, the relevant inquiry at the merit stage is only whether the charged party’s asserted reason is the motivating cause for the adverse action. Thus, even in these situations the investigatory focus should be on employer motivation and the Region should not investigate or determine the individual employee’s actual immigration status.

Second, where an employee’s immigration status might impact the Board’s ability to remedy or litigate a potential unfair labor practice violation, the General Counsel wants to remove that limitation by helping the employee obtain a visa. Specifically, the General Counsel instructs the Regions to determine whether “potential discriminatee(s) and/or witness(es) could be eligible for a U or a T Visa, or for deferred action and whether the NLRB should certify and/or facilitate this process….” (emphasis added). Moreover, in an apparent attempt to limit potential interference in a labor dispute or representation election, to draw attention to the employer’s use of undocumented employees to discourage such a defense, or both, the General Counsel wants the NLRB to engage the Department of Justice and Department of Homeland Security in these types of cases.

Third, if immigration status will impact the Board’s ability to seek back pay and reinstatement, the new procedures require the Region to explore any alternative remedies including:

  • Notice reading;
  • Publication of the notice in newspapers and/or other forums;
  • Training for employees on their rights under the Act;
  • Training for supervisors/managers on compliance with the Act;
  • Gissel bargaining order;
  • Union access to employee contact information;
  • Reimbursement of organizing or bargaining expenses;
  • Consequential damages;
  • Instatement of a qualified referred candidate; and
  • Any other remedies that may be appropriate in a particular case.

Finally, the General Counsel wants the Region to explore a formal settlement in such cases, presumably in the hope that it might be able to achieve by agreement that which it cannot through litigation–i.e., back pay and/or reinstatement for the undocumented workers. As the General Counsel’s memorandum notes, that would then “enable the Agency to seek the immediate assistance of the federal courts in the event of noncompliance with the terms of the extant settlement and in the event of future violations.”

GC Memorandum 15-03 not only underscores the importance of ensuring compliance with immigration laws and regulations prohibiting the employment of undocumented workers, but it also creates a Catch-22 for employers who, despite their best efforts to comply with those laws, find themselves the subject of an unfair labor practice charge involving undocumented workers. Those employers must choose between two equally unappealing options. The first is notify the NLRB of the employee’s immigration status to ensure that it is not ordered to reinstate an undocumented worker. However, the NLRB might report the immigration violation to Homeland Security and seek an alternative, but more substantial remedy for any unfair labor practice. The second option is simply to remain silent regarding the employee’s immigration status, but face the possibility of an NLRB order requiring it to reinstate an undocumented worker and thus further violating immigration laws. To avoid such a scenario, employers should regularly audit their I-9 and E-Verify policies to confirm they are being strictly enforced, and should immediately consult legal counsel before responding to any unfair labor practice charge potentially involving undocumented workers.