Posted on September 28, 2010 by Seth Borden

NLRB Decisions: September 20 - 24, 2010

The National Labor Relations Board issued its Weekly Summary of Cases for September 20-24, 2010.  Among the decisions handed down by the Board:

Ferguson Enterprises, Inc. (7-CA-52306; 355 NLRB No. 189)

The Board adopted the administrative law judge’s findings that the Respondent violated the Act by suspending, and then laying off, all members of one of its utility crews after two members filed prevailing wage claims.

Aluminum Casting & Engineering Co., Inc. (30-CA-12855, et al.; 355 NLRB No. 190)

This case was before the Board on remand from the U.S. Court of Appeals for the Seventh Circuit, which had held that the Board erred in the underlying proceeding by failing to incorporate the Employer’s unlawfully withheld wage increase into the employees' “base wage” from the date of the unfair labor practice to the end of their employment. Pursuant to the Seventh Circuit’s decision, the Board issued the appropriate remedial order against the Employer for the violations found.

Carpenters Local 1506 (Associated General Contractors of America, San Diego Chapter) (28-CC-946, et al., 355 NLRB No. 191)

The Board found that the union did not violate the Act by displaying banners proclaiming a “labor dispute” at locations of employers not engaged in a primary labor dispute with the union. The Board relied on its recent decision in Carpenters Local 1506 (Eliason & Knuth of Arizona) dismissing an identical allegation regarding similar conduct. Member Hayes dissented, reiterating the views stated in his joint dissent with former Member Schaumber in Eliason & Knuth that the display of banners was unlawful under the Act. The parties submitted the case directly to the Board by a joint motion to transfer the case, without a prior hearing before an administrative law judge.

Art’s Way Vessels, Inc. (33-CA-15771; 355 NLRB No. 192)

The Board found that the employer violated the Act by unlawfully withdrawing recognition from the union, repudiating the collective-bargaining agreement, and making unilateral changes to employees’ terms and conditions of employment. The Board ordered the employer to recognize the union, adhere to the collective-bargaining agreement’s terms, rescind the unilateral changes, refrain from these unlawful actions in the future, make employees whole for losses resulting from the unilateral changes, and reimburse the union for any unpaid dues. (The Board, on exceptions, rejected the employer’s affirmative defenses that the charge was untimely under Section 10(b) of the Act and that the employer was relieved of its obligation to bargain with the union because another company was the employer’s “de facto successor.”)

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Posted on September 28, 2010 by Seth Borden

Traditional Labor Law Issues Arising Out of Use of Social Media

Today's National Law Journal carries a piece by yours truly regarding the potential labor law implications of the growth of social media use in the workplace.  Many astute observers have written on the intersection of social media with employment and privacy law.  Today's NLJ piece focuses on traditional labor law principles:

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

You can read the entire piece here.

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Posted on September 27, 2010 by Seth Borden

GOP Senators Question Possible "High Road" Contracting Policy

Late last week, a group of 29 Republican senators sent a letter Administrator Karen G. Mills of the U.S. Small Business Administration, expressing concern over the Obama administration’s purported consideration of a “High Road Contracting” policy.  The senators, led by Sen. Susan Collins, (R-ME), asked Ms. Mills to clearly disclose her position on the issue by September 30, 2010. 

Earlier this year, the White House Middle Class Task Force released an annual report, which suggested the administration would soon propose such a policy.  This set off considerable speculation among contractors.  As described by Employment Law360:

The policy would require contracting officers to take into account a company's labor, employment and compliance reports when evaluating which bids offer the best value to the government.

Among other factors that might be considered are business ethic records, including noncompliance with labor, tax, fraud and consumer protection laws, as well as "substandard wages and benefits" that could negatively impact workers' productivity, stability and overall performance on critical federal projects, according to the report.

The senators’ letter criticizes the possible policy changes thus:

This policy would make no sense even in good economic times.  But at a time when our economy is suffering, our small businesses are suffering, and we are faced with escalating deficits and debt, we are stunned that the administration would even contemplate erecting artificial barriers to full and open competition for government contracts. If this policy is implemented, it would violate the Competition in Contracting Act and cause small businesses not to compete for federal contracts.  This would undermine the diversity of our federal contracting base, lessen competitive pressures on large contractors, and increase the costs of the goods and services necessary to fulfill the government's mission.  Ultimately, this policy could deprive federal agencies of many innovative solutions offered by our nation’s small businesses.

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Posted on September 24, 2010 by Seth Borden

Senate Defeats Measure Expressing Disapproval of NMB Rule Change

Back in May, the National Mediation Board issued a new rule, changing the way unions would be certified under the Railway Labor Act (RLA) after decades of counting ballots a different way.   In late June, after a temporary stay on implementation, a federal judge dismissed a challenge to the rule filed by an airline trade association.  The rule went into effect on July 1, 2010 and numerous unions have already been certified under the new standard.

Back on the day the NMB announced its new rule, Senator Johnny Isakson (R-GA) introduced S.J. RES. 30, a Joint Resolution:

Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Mediation Board relating to representation election procedures.  

Sen. Isakson has explained on the Senate floor why he objects to the NMB’s significant change in direction.  Yesterday, some of his comments were highlighted by the National Association of Manufacturer’s (NAM) blog, ShopFloor.org:

The Senator rightfully points out in his remarks on the Senate floor that this rule change by the NMB would allow the will of the few to determine whether or not an entire workforce be represented by a labor union.  He also pointed out that the Railway Labor Act doesn’t provide the same type of union decertification methods available to employees under the National Labor Relations Act, the law that covers most private sector employees.  In essence, this means that should the NMB’s new rule be allowed to stand, a small group of employees that are able to participate in a NMB union election would be able to allow a labor union to be the exclusive representative of employees in perpetuity.

Early in the afternoon, however, the Senate voted 56 to 43 against the resolution.  Senators Lincoln (D-AR), Pryor (D-AR) and Nelson (D-NE) crossed the aisle to vote in support of the resolution.  All Republican Senators voted for the measure with the exception of Sen. Lisa Murkowski (R-AK) who did not vote.

More information and commentary:

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Posted on September 24, 2010 by Seth Borden

NLRB Announces Retirement of Former Board Member and General Counsel John Higgins

In a press release issued yesterday afternoon, the NLRB announced that Deputy General Counsel John E. Higgins will retire from the agency “after 46 years of service, including two stints as a Board member and two as Acting General Counsel.”

After holding various positions in the Memphis Regional Office and Headquarters between 1964 and 1988, Mr. Higgins was appointed to the Board by President Ronald Reagan (R).  In 1996, he was again recess appointed to the Board by President Bill Clinton (D).  In 2001 he was appointed Acting General Counsel by President George W. Bush (R), and served in that capacity again in 2005.   

Most recently he has been serving as Assistant General Counsel and, according to current Acting General Counsel Lafe Solomon, as the agency’s “unofficial historian.”  In the Board’s release, Solomon said: “John Higgins has served the agency so well in so many different capacities that it is difficult to imagine this place without him.”

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Posted on September 21, 2010 by Seth Borden

Prof: Wisconsin Captive Audience Law Should Be Upheld

Workplace Prof Blog today highlights a piece by professor/blogger Paul Secunda in CCH Employment Law Daily regarding a state “captive audience speech law.”  While these bills have been proposed in various states, the particular object of Professor Secunda’s presdcritique is 2009 Wisconsin Act 290, enacted on May 12, 2010.  The Act amended Wisconsin’s employment discrimination laws to add protections against discrimination on the basis of an employee’s

…declining to attend a meeting or to participate in any communication about religious matters or political matters.

Earlier this month, the Metropolitan Milwaukee Chamber of Commerce filed suit in federal court seeking to have the law declared unconstitutional.  According to his blog’s excerpt of the CCH piece, Professor Secunda believes the law should be upheld:

A finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship….”   Indeed, a number of well-known exceptions exist to the Machinists preemption doctrine, in the area of state police powers and the regulation of property rights. Under this line of cases, traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption.

There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Consistent with Section 8(c) of the NLRA, employers can still inform employees of their views of unionization, but may not force employees into mandatory meetings to hear those views under Wisconsin’s Act 290.

We have previously identified arguments by proponents of labor law reform that the law should allow greater union access to private employer property, or to restrict employers' exclusive use to address union representation.  These state statutes and the attendant litigation are the current front lines of that debate.

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Posted on September 14, 2010 by Seth Borden

New Orleans Saints Vote To Approve Decertification of NFLPA; Pure Collective Bargaining Strategy

Liz Mullen of the SportsBusiness Journal reports that the players on the New Orleans Saints have voted unanimously to support decertification of the NFL Players Association.  The strategy in play would be to subject the NFL owners under antitrust laws if the owners acted together to lock the players out prior to the 2011 NFL season.  Unlike the National Labor Relations Act, federal antitrust laws allow for the imposition of treble damages for violations.

As Mullen’s piece explains:

If the NFLPA were to decertify, it would, in effect, operate as a trade organization but cease to be a union. If the league then tried to lock out players, the NFLPA could sue the NFL under U.S. antitrust laws and contend the league was conducting a group boycott, which is illegal.  It could not sue the NFL if it remained a union with collective-bargaining authority for its members, under the labor exemption to antitrust laws. 

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The letter [recently distributed to all players] says decertification “does two things for us:  First, it gives a very firm deadline to the NFL to reach a new CBA with us before the current one expires, and before we end our status as a union. Second, it allows us to file an antitrust challenge against the lockout they are likely to impose the day after expiration.”

The letter does not present decertification as a fait accompli, but rather as giving the union the option to use that leverage if the need arises. 

The players employed this strategy in 1989, and it is viewed as having been an element of the leverage that helped them to establish free agency in 1993.  The players then recertified the NFLPA as their exclusive representative.  While that history provides the precedent for the strategy, it may also provide owners with the argument that the decertification itself is a “sham.”

Former player agent and NFL Executive, and current publisher of the National Football Post, Andrew Brandt makes these astute observations:

The union breathed a heavy sigh of relief in May when the American Needle decision from the United States Supreme Court did not award a sweeping antitrust exemption for the league, a decision that would have wiped out the decertification option for the union.

Would the NFLPA decertify again? Certainly players will vote for the option, as a procedural matter that the Saints kicked off, if only to have that piece of ammunition available. As to whether new leader DeMaurice Smith and the union will use it, I doubt it. Like everything else going on now, it is simply a bullet in the gun in the arsenal that the union has available, although a bullet that the union really does not want to use.

As with everything going on with the stagnant labor negotiations that will be front and center over the coming months, it’s all about negotiations, both towards a new CBA and towards winning the hearts and minds of the fans and media. 

More information and commentary:

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