Labor Relations Today

Labor Relations Today

Senator Sanders (I/D-VT) Re-Introduces Employee Free Choice Act

Posted in Card Check, EFCA, House of Representatives, Interest Arbitration, Legislation, NLRA, Remedies, Representation Elections, Senate, White House

At a press conference on the afternoon of Tuesday, October 6, 2015, Democratic presidential candidate Senator Bernie Sanders of Vermont announced that he and Rep. Mark Pocan (D-WI) would introduce the “Workplace Democracy Act” (S. 2142, H.R. 3690). This bill would amend the National Labor Relations Act to facilitate union organizing by requiring certification based on “card check” — the presentation of publicly collected employee signatures. The bill would also eliminate freedom of contract by requiring that the terms of a first labor contract be settled by an interest arbitrator after 120 days of negotiations between management and a union.

If this sounds familiar, it is because these provisions were repeatedly introduced and defeated in the legislative battles over the Employee Free Choice Act (EFCA) during the Bush presidency and President Barack Obama’s first term.  In fact, as one can easily compare, the text of Senator Sanders’ bill reflects the first two of EFCA’s three provisions verbatim.

The third section of EFCA would have increased the use of mandatory injunctions and financial penalties in unfair labor practice proceedings.  Earlier last month, Senator Patty Murray (D-WA) and Representative Bobby Scott (D-WA) introduced the “WAGE Act” (S. 2042) which would increase NLRA penalties against employers far beyond that even contemplated by EFCA. We noted at that time that the WAGE Act’s bargaining order remedy appeared to be a back-door approach to card-check. It seems now that legislative allies of organized labor are reviving the front-door approach as well.

Compare also, the change in the tone and content of the chief sponsor’s rationale. Back in 2007, EFCA sponsor Rep. George Miller (D-CA), a devoted proponent of union organizing, still attempted to frame the issue as one of “fairness” and “opportunity”:

One way to help the middle class is to provide them with a fair opportunity to organize and join unions, so they can have a say in what goes on in the workplace. … The Employee Free Choice Act would add some fairness to the system.

Senator Sanders’ introductory language is far more honest regarding intent. He concluded his remarks on Tuesday:

If we are serious about reducing income and wealth inequality and rebuilding the middle class, we have got to substantially increase the number of union jobs in this country.

The Senator’s introduction of this bill, amid his campaign for the Democratic party nomination for the presidency, will be seen by many as an effort to bolster his strong standing with organized labor and to compete further with opponent Hillary Clinton for additional union endorsements.  The furthest EFCA ever advanced was in 2007, when it passed a Democrat-controlled House of Representatives but was filibustered in a Senate with a simple majority of Democrats. Late Republican — and soon thereafter Democrat — Senator Arlen Specter of Pennsylvania doomed the bill when he opposed cloture in a widely reviewed floor statement.  The bill is not likely to get much further than it did then, considering the current Republican majorities in the House and Senate. It may also be noteworthy that Democrat support for the bill lags far behind its previous incarnations as Senator Sanders’ bill has only ten co-sponsors, as opposed to the 40-46 co-sponsors of the 2007 and 2009 bills.

For the many reasons outlined in our 2009 white paper on the bill, the Employee Free Choice Act was bad policy.  It remains so, today — even under this new name. Still, prudent employers should follow closely the competing legislative proposals aimed at overhauling the National Labor Relations Act.


National Labor Relations Board General Counsel Finds Company’s Lockout Lawful

Posted in Negotiations, NLRA, Unions

In a letter to United Steelworkers Union’s (“USW”) in-house counsel, National Labor Relations Board (“NLRB”) General Counsel Richard Griffin (“Mr. Griffin”) stated that a company did not violate federal labor law by locking out approximately 450 USW-represented employees during ongoing collective bargaining negotiations.

The lockout, which began in October 2014, occurred after bargaining unit employees rejected the company’s demands for cuts to pensions and healthcare benefits and reductions in overtime pay.  The union petitioned an NLRB regional director to issue a complaint against the company over the lockout.  The regional director rejected the petition finding the lockout and hiring of temporary replacement workers lawful under the National Labor Relations Act.  In his letter, Mr. Griffin agreed with the regional director’s conclusion that the company acted lawfully.

Specifically, Mr. Griffin confirmed that the company did not improperly insist on a permissive subject of bargaining (i.e., retiree healthcare) in order to end the lockout.  Rather, the company lawfully told USW that it would end the lockout when the parties reached a new agreement.  According to Mr. Griffin’s letter, the last, best and final offers proposed to the union were not “take it or leave it” proposals.  Although the only difference between the two last, best and final offers included the permissive subject, the company and the union engaged in additional bargaining since the company’s “last” offers, and the company had changed its proposal as to the alleged permissive subject.  In that regard, the parties had not bargained to an impasse, and the company did not impose the lockout in order to compel the union’s acceptance of its “last offer” and to evade its duty to bargain in good faith.

Mr. Griffin also agreed with the regional director’s determination that the company did not fail to inform the union as to the reason for the lockout, thereby rendering the lockout unlawful.  The company informed its employees and the union that it initiated the lockout due to a “lack of progress in negotiations and in achieving a new collective bargaining agreement.”  The company also lawfully and sufficiently advised the union that the lockout would end when the parties reach a new collective bargaining agreement, “which could or could not have included permissive subjects depending on continued contract negotiations.”  The company did not condition agreement on any proposal in order to end the lockout; instead, it permissibly made clear that the lockout would end when the parties reach a new agreement.

Board Finds That Canvassers Are Employees, Reversing ALJ

Posted in NLRA, NLRB, NLRB Decisions

Further crystalizing the Board’s efforts to expand the definition of “employee” under the NLRA, the Board recently reversed an ALJ’s decision, holding that canvassers for a non-profit organization were employees, not independent contractors. In Sisters Camelot, 363 NLRB No. 13 (Sep. 25, 2015), a canvasser filed a charge alleging that he was terminated for engaging in protected concerted activities during an organizing drive by the Industrial Workers of the World (IWW).  The ALJ initially dismissed the Complaint, holding that the canvassers – who went door-to-door collecting donations for a non-profit organization without any direct supervision – were independent contracts, not employees.

In reversing the ALJ, the Board applied the 11-factor independent contract test laid out in recent cases, and held that, on balance, ten of the eleven factors favored employee status. Even though the canvassers were not required to report for work on any specific day, were not subject to in-person supervision, were able to work for other organizations, could quit or go inactive for any periods of time, and understood themselves to be independent contractors, the Board concluded overwhelmingly that the canvassers were employees. The Board held:

Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their raps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.

Having reversed the ALJ on the issue of employee status, the Board then affirmed his contingent holding that the employer had violated the Act by its termination of the individual worker.

More resources and commentary:

“NLRB Calls Non-Profit Canvassers Employees, Not Contractors” – Law360 ($) []

More About the Protecting American Jobs Act (S. 2084)

Posted in Federal Court Litigation, House of Representatives, Legislation, NLRA, NLRB, NLRB Administration, NLRB Rule-Making, Senate

As noted yesterday, Senator Mike Lee (R-UT) has introduced a bill to curtail the authority of the National Labor Relations Board.  The Protecting American Jobs Act (S. 2084) — co-sponsored by Sens. Ted Cruz (R-TX) and Tom Cotton (R-AR) — is analogous to a House bill (H.R. 1893) introduced earlier in 2015, now with seventy Republican co-sponsors.  It would amend the NLRA to eliminate the authority and responsibility of the General Counsel to issue and prosecute complaints before the Board; and transfer adjudication from the Board to the federal courts.  Moreover, it would expressly clarify that the Board’s statutory rulemaking authority is limited to internal administration:

Such rulemaking authority shall be limited to rules concerning the internal functions of the Board. The Board shall not promulgate rules or regulations that affect the substantive or procedural rights of any person, employer, employee, or labor organization, including rules and regulations concerning unfair labor practices and representation elections.

More Resources and Commentary:

Quick Hits: Wednesday, September 30, 2015

Posted in Legislation, NLRB, NLRB Administration, Quick Hits, Representation Elections

Senate Bill To Curb NLRB: Following Dems introduction last week of the “WAGE Act” to radically expand NLRB powers to facilitate union organizing, on Monday, Sen. Mike Lee (R-UT) introduced a counter-measure to cut drastically the Board’s role and authority. The text of the Protecting American Jobs Act (S. 2084) is not yet available online, but Law360 ($) reports the bill “would allow the board to conduct investigations, but it would hand the power to hear labor disputes over to federal courts.

Sen. Lee asserts:

For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country…. The havoc they have wrought by upsetting decades of established labor law has cost countless jobs. This common sense legislation would finally restore fairness and accountability to our nation’s labor laws.

Al Jazeera Digital Employees Vote: Al Jazeera America declined to voluntarily recognize the News Guild as the representative of its digital employees.  As a result, a mixed live / mail ballot election conducted by the NLRB began yesterday, with ballots to be counted on October 6, 2015.

Interesting Debate on the Gig Economy: The interfluidity blog posts a piece exploring antitrust elements of the classification of “independent contractors” in the new “gig economy,” asking:

Suppose the criteria for 1099 status really emphasized having multiple customers. For example, if you make money by offering people rides, the fact that you get to set your own schedule doesn’t cut it, if substantially all of your business comes from [one company]. To qualify as an independent contractor, if you do substantial business with a regular, repeat customer, you must have multiple customers in that line of business for whom you do substantial work. Otherwise, there is a strong presumption that you should be considered an employee of your customer.

The piece also suggests that contractors be guaranteed a minimum “unconditional basic income” in exchange for forgoing all the benefits of “employee” status.  The pro-union OnLabor blog argues, however, that this proposal would benefit capital and consumer competition, without a commensurate benefit to workers:

[B]eing an employee under current law is important for reasons that go beyond the right to earn a minimum income.  Being an employee entitles workers to safety and health guarantees, workers compensation, unemployment insurance, anti-discrimination protections, and the right to form unions and collectively bargain (which can translate into a host of additional protections and benefits, including a voice at work and protection against unjust discharge).  Interfluidity is right that a basic income can – if set sufficiently high enough – increase worker bargaining power by, e.g., raising the reservation wage. And this bargaining power can, in turn, be translated into lots of other things.  But the bargaining power that would flow from a basic income is unlikely to be a sufficient substitute for all the legal protections that come from being an employee under current law – especially given the dramatic political constraints on what the level of a basic income conceivable could be.

Senator Alexander Accuses NLRB, OSHA of Coordinated Effort to Change the Law

Posted in Joint Employer, Legislation, NLRA, NLRB, Senate

On September 23, 2015, Senator Lamar Alexander (R-Tenn.) stepped up his attacks on the National Labor Relations Board (“the Board”), accusing the Board of engaging in a coordinated effort with the Occupational Health and Safety Administration (“OSHA”) to change corporate liability laws.  During a hearing, Senator Alexander referred to news reports claiming that OSHA officials began instructing their regional directors to use the same “joint employer” standard that the Board adopted in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015) one day before the Board released its ruling.  Senator Alexander argued that OSHA has no business adopting the Board’s standards stating:

Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not?  Why does OSHA care about that?  Why isn’t OSHA interested in health and safety?

Senator Alexander recently introduced legislation to overturn the Board’s new “joint employer standard,” which he asserts “would make big businesses bigger and the middle class smaller by discouraging companies from franchising and contracting work to small businesses.”  The proposed legislation, “Protecting Local Business Opportunity Act,” would amend the National Labor Relations Act’s definition of “employer” to restore it to the pre-Browning-Ferris status.  Specifically, the proposed act provides:

Notwithstanding any other provision of this Act, two or more employer may be considered joint employers for purposes of this Act only if each share and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.

As we previously reported, the Board’s new “joint employer” standard no longer requires that a “joint employer” both possess and exercise authority to control employees’ terms and conditions of employment.

NLRB Now Publishing Election Tallies Online

Posted in NLRB, NLRB Administration, Representation Elections

Without much fanfare on Tuesday, the National Labor Relations Board made the following announcement via Twitter:

There are currently 16,793 election results posted going back as far as 1994, but it is evident that the records for many of those years is incomplete (e.g., 1994, 1995, and 1996 each only have one result). However, the records for the last few years appear much more complete, and the data for each election is comprehensive as it identifies the city and state of the election; the employer; the election date; and the number of eligible voters, void ballots, votes for the union, votes against, and challenged ballots.

Quick Hits: Tuesday, September 22, 2015

Posted in NLRA, NLRB, Quick Hits, Unions, White House

Walker Out:  Wisconsin Governor Scott Walker (R) announced yesterday that he was withdrawing from the race for the GOP’s 2016 nomination for the presidency.  Walker, who famously clashed with labor unions in his home state, last week unveiled an outline of his policy proposals on labor law reform. They included: eliminating the NLRB; passing a national Right-To-Work law; and, prohibiting federal public employee unions. The AFL-CIO was obviously pleased with his exit.

Sixth Circuit Upholds NLRB Jurisdiction Over Indian Tribes: Denying a petition for re-hearing by the Little River Band of Ottawa Indians, the Court of Appeals for the Sixth Circuit upheld its June 1, 2015 panel decision.  In that decision, the majority criticized the principles on which it based its decision, and opined it would decline jurisdiction if “writing on a clean slate.” Nevertheless, it felt bound by precedent to rule against the tribe. The full panel of the Court appears to agree:

The petition … was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

@LRToday Tweets of Interest: From our Timeline — are you following us?

Quick Hits: Monday, September 21, 2015

Posted in Beyond EFCA: Labor's Agenda, Media Round-Up, NLRA, NLRB Decisions, Quick Hits

ICYMI — Dems Intro “WAGE” Act: We reported last week on the drastic legislative proposal introduced to increase NLRB penalties against employers, to facilitate union organizing. In addition to our summary piece and this document including proposed changes to the NLRA in redline, we provided links to some additional resources and coverage. Add to those, this Washington Examiner piece and this EPI post promoting the bill.

Three For The Road: Law360 ($) today summarizes three notable NLRB decisions issued during former Member Harry Johnson’s final days on the job. Lest they be lost in the overshadowing of the Board’s major Browning-Ferris decision, the piece highlights:

  • GVS Properties, 362 NLRB No. 194, Case No. 29-CA-077359 (Aug. 27 2015), wherein the Board ruled that an employer “which purchased several properties in New York City and was legally obligated to retain building service workers, qualified as a successor employer that had to bargain with a union that represented workers at those properties.”
  • Lincoln Lutherine of Racine, 362 NLRB No. 188, Case No. 30-CA-111099 (Aug. 27, 2015), which we discussed here, wherein the Board cast aside 50 years of precedent to require employers to continue union dues checkoff payments following contract expiration.
  • On Assignment Staffing Services, Inc., 362 NLRB No. 189, 32-CA-095025 (Aug. 27, 2015), in which the Board “declared that mandatory arbitration agreements that require workers to waive their right to pursue class or collective action claims violated federal labor law.”

Joint Employer Impact: And businesses of all types are still struggling to determine how the Board’s recent Browning-Ferris decision, with its amorphous, results-driven “standard,” will impact popular business models.  Former NLRB Member Marshall Babson took to the New York Times Opinion Pages to criticize “[This] Impractical and Dangerous Ruling.”  SHRM notes that the “NLRB’s New Joint Employer Test May Impact OSHA” obligations as well.  Finally, this analysis by CIO looks at “How ‘joint employer’ ruling impacts IT outsourcing customers.”

More About the Workplace Action for a Growing Economy (WAGE) Act (S. 2402)

Posted in Beyond EFCA: Labor's Agenda, Legislation, Legislative Strategy, NLRA, Remedies, Unions

Here is the text of the bill.

Here is our red-lined version of the NLRA incorporating the revisions proposed by the bill.

Here is the AFL-CIO blog post urging its passage.

Here is Richard Trumka’s blog piece in The Hill today.

Here is a Fact Sheet provided by Rep. Susan Davis (D-CA).

Collected media coverage: