Posted on October 26, 2010 by Seth Borden

NLRB Expands Notice-Posting Remedy, Will Order Employers and Unions to Post Employee Notices Electronically

In J.Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), Members Becker and Pearce joined Chairman Liebman in holding that “respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.”  The decision expands the customary Board remedy of posting paper notices in the workplace, and is a clear sign of this Board’s commitment to adapting NLRB mechanisms and law to evolving technologies in the workplace.

In a September 28, 2010 article in the National Law Journal, I suggested that Chairman Liebman was not content to allow the NLRB to be viewed as the “Rip Van Winkle of administrative agencies.”  Chairman Liebman wrote forcefully in the dissent to the 2007 Register-Guard case:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

The decision in J.Picini Flooring continues in that vein:

The ubiquity of paper notices and wall mounted bulletin boards, however, has gone the way of the telephone message pad and the interoffice envelope.  While these traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.  Electronic communications are now the norm in many workplaces….

Accordingly, going forward, the Board will now require remedial notices to be distributed by email if an employer customarily uses email to communicate with its employees, and by other means of electronic communication which are so used by the employer. Questions as to whether some type of electronic communication is necessary will be addressed at the compliance stage.

Member Hayes filed a dissent to the decision, asserting that the Board has transformed “an extraordinary remedy into a routine remedy.” 

Tags: , ,
Posted on October 25, 2010 by Seth Borden

NLRB Awards Compound Interest, Changing Long-Standing Rule

In a unanimous decision issued Friday, the National Labor Relations Board held that henceforth it would order daily compound interest on backpay awards -- "deviating" from its long-standing practice of issuing simple interest in unfair labor practice cases.  The 4-0 decision in Jackson Hospital Corporation, 356 NLRB No. 9 (October 22, 2010) explains:

For nearly 50 years, the Board has ordered interest to be paid on backpay awards under the Act. For more than 20 years, a succession of NLRB General Counsels has urged the Board to order compound, rather than simple, interest. The Board has consistently declined to do so—without ever addressing the merits of the issue, except for a preliminary endorsement of daily compounding in a notice of proposed rulemaking issued in 1992, which was withdrawn in 1998. Over the years, Board decisions have deferred a final ruling on the issue of compounding, denying the General Counsel’s request for that remedy, but always leaving open the possibility of a change in policy. Today, we make that change, after full briefing of the issue in response to our invitation. We adopt a policy under which interest on backpay will be compounded on a daily basis, using the established methods for computing backpay and for determining the applicable rate of interest. As we will explain, the daily compounding of interest is used under other comparable legal regimes (including the Internal Revenue Code, which the Board has followed in other respects related to awards of interest), and it will better serve the remedial policies of the National Labor Relations Act.

Back in May, we indicated that we thought this development was coming, pointing out a footnote in San Juan Teachers Assn., 355 NLRB No. 28 (Apr. 30, 2010), which read:

In his exceptions and supporting brief, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary award. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Cardi Corp., 353 NLRB No. 97, slip op. at 1 fn. 2 (2009); Rogers Corp., 344 NLRB 504, 504 (2005).

Now, after having solicited and considered amicus briefs on the issue from the National Right to Work Legal Defense Foundation, the S.E.I.U., and the AFL-CIO, the Board has decided to do so.

More resources:

Tags: ,
Posted on October 22, 2010 by Seth Borden

NYT: "Dems Look to Unions"

Stephen Greenhouse in the New York Times, "Democrats Look to Clout of Unions as Vote Nears" (October 22, 2010):

The giant union of government workers, the American Federation of State, County and Municipal Employees is promising to spend a record $66 million this year on get-out-the-vote efforts, voter education and political advertisements. That includes $16 million that the union recently took out of an emergency fund, and it comes on top of $21 million it spent last year, mainly on state and local races. The union says it has spent $17 million on broadcast advertisements so far this year.

Reflecting a growing dispute between unions and the Chamber of Commerce, the public employees’ union is arguing that its campaign spending this year is less than the Chamber’s $75 million, even though the union has spent $87 million over the two-year election cycle.

The A.F.L.-C.I.O. plans to spend about $50 million in this year’s campaign, while the Service Employees International Union, one of the most politically active unions, plans to spend $44 million, including $14 million already spent on advertisements.

Labor’s role is especially important to the Democrats because it succeeded in 2008 in making inroads with a crucial demographic: blue-collar white men. While white male nonunion workers voted against President Obama by a margin of 16 percentage points in 2008, he won among white male union workers by 18 percentage points. Moreover, these voters are in the swing states that matter — for instance, about 30 percent of Pennsylvania voters come from union households, as do 35 percent of Ohio voters.

Both states have hard-fought, crucial races for governor and United States senator.

Of the 75 Democratic House seats in play, A.F.L.-C.I.O. leaders say, 37 of those districts have high union membership, with more than 40,000 union voters.

The A.F.L.-C.I.O. says that so far this fall its volunteers have given out 17.5 million leaflets, made 23.6 million phone calls, mailed out 18.6 million fliers and knocked on 1.3 million doors, including 183,000 last Saturday.

Tags: , ,
Posted on October 18, 2010 by Seth Borden

NLRB Summary of Cases, October 12-15: Three More New Process Steel Decisions

The Board issued its Weekly Summary of cases for October 12-15, 2010. Included were summaries of three decisions in cases involving prior rulings by the two-member Board which were invalidated by the U.S. Supreme Court in the New Process Steel decision. These cases were:

According to the NLRB website's tracking page for the Two-Member Board cases, there are now 335 cases closed.  There have been new "Three-Member" decisions issued in 82 cases, and another 30 more cases have been requested or returned to the Board.

Tags: ,
Posted on October 9, 2010 by Seth Borden

Workplace Prof Blog Highlights Labor Scholarship

At the Workplace Prof Blog, Professor Paul Secunda reflects encouragingly upon two pieces recently published by colleagues, and publishes their abstracts.

Michael Duff of Wyoming has an article forthcoming in the Berkeley Journal of Employment and Labor Law entitled "Union Salts as Administrative Private Attorneys General."  From the abstract:

Although recent decisions of the National Labor Relations Board (NLRB), under the influence of the W. Bush administration, have erected administrative and legal roadblocks to the conduct of salting campaigns, it is likely that the "Obama Board" will revisit the issues surrounding them. This article argues that salts have served a legitimate function by exposing unlawful, anti-union employment practices. Developing more fully a fleeting discussion in a recent NLRB case, the article explores whether salts' aggressive charge filing activity at the NLRB represents a permissible form of administrative private attorney general mechanism in aid of increased enforcement of the NLRA. Answering the question in the affirmative, the article contends that the NLRB should not reject salting activity on "moral" grounds, or based upon an overly restrictive view of the nature of union organizing.

Mike Zimmer of Loyola-Chicago has published a new paper entitled "Unions & the Great Recession: Is Transnationalism the Answer?"  From the abstract:

As economic activity has become increasingly globalized, enterprise has been able to jump the barriers that had been set by national laws and national economies to organize operations around the world to take advantage of local conditions, including labor costs and standards. Thus, more and more employers can take advantage of a global labor market to find conditions most favorable to their businesses. An increasingly global labor market has significant impact on national and local labor markets. Labor unions are generally still trapped within the nations of their organization. Limited to operating in national labor markets, unions have lost the strength and breadth necessary to establish labor monopolies that operate to take labor costs out of price competition. The answer to the question this article poses is that the future of the labor movement may depend on the ability of unionism to reach across borders and operate transnationally. Some unions have taken some steps to go transnational, but a fundamental redirection toward transnationalism may be necessary if the union movement is to have a positive impact as the global economy recovers from the Great Recession.

In our humble opinion, practicing labor lawyers who would dismiss the excellent Workplace Prof Blog as "too academic" and not geared enough toward a more "practical" focus on labor law do themselves (and perhaps their clients) a disservice. 

Tags:
Posted on October 8, 2010 by Seth Borden

NLRB Issues FY2010 Case Production Summary

Yesterday, the NLRB issued its annual summary regarding case production for the fiscal year which ended on September 30, 2010.  In the 2010 fiscal year, the Board issued 315 decisions, 118 of which were decided in the month of August alone.  August was particularly productive because the Board sought to resolve as many cases as possible prior to the expiration of Peter Schaumber’s term as a member of the Board.  At the close of the fiscal year, the Board had 264 cases pending before it, which reflects a 20% increase from the 193 cases pending at beginning of the fiscal year.  The Board has also resolved 70 of the 96 cases pending before the courts at the time the Supreme Court issued its decision in New Process Steel denying the Board authority to issue decisions with only two members.

In addition, the press release highlighted notable decisions issued by the Board this past year.  They included:

- Resolution of the oldest unfair labor practice case at the Board, KenMor Electric Company (formerly known as Houston Stafford), a Texas case involving an association of non-union electrical contractors that arrived at the Board in 2001. The Board found that the association violated the Act by maintaining a job application referral system that interfered with the statutory rights of job applicants who were union members and “salts".

- Resolution of the oldest election case at the Board, Independence Residences, in which the Board found that a union victory in a 2003 election at a New York home for disabled workers should be certified, notwithstanding a state law that prohibited the employer’s use of state funds for union-related activities.

- The Board’s determination that a union protest was lawful activity in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, where union members held large banners announcing labor disputes in front of secondary employers in Arizona.

- The Board’s determination that a union’s practice of requiring a dues objector to lodge objections every year, rather than granting a permanent reduction in dues, was unlawful, in International Association of Machinists and Aerospace Workers, AFL–CIO.

- The grant of review in a case, Lamon Gasket Co., that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract. The Board also invited briefs from any interested parties in the case.

In foreshadowing what to expect in the 2011 fiscal year, the Board's recent press release notes that cases still pending resolution by the Board deal with issues such as:

the immigration status of workers who were victims of unfair labor practices, union access to employer property, electronic posting of Board remedial notices, and compound interest on back pay awards.

Stay tuned, as we will be providing information, insights and resources on these issues as the Board addresses them.

Tags: , ,
Posted on October 5, 2010 by Seth Borden

California Congressman Introduces Bill to Repeal "Right to Work" Laws

Last week, amid a flurry of late-session proposals, Rep. Brad Sherman (D-CA) introduced H.R. 6384, "To repeal a limitation in the Labor-Management Relations Act regarding requirement of labor organization membership as a condition of employment."  Put more simply, the bill would nullify the right of states to enforce "right to work" statutes. 

The 1947 Taft-Hartley amendments to the National Labor Relations Act added subsection 14(b), allowing states to pass these "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Rep. Sherman's bill is unavailable at the GPO at this time, but he introduced a similar bill in the 110th Congress.  H.R. 6477, introduced in July 2008, states only:

Section 14(b) of the Labor Management Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b). 

We might safely assume that H.R. 6384 will be similarly pithy.  Regarding the introduction of this measure, the Congressman issued a statement including the following explanation:

“I do not believe that there should be a right to be treated unfairly or to endure unnecessary restrictions. Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

At the time of this posting, there were 17 Democrat co-sponsors of Rep. Sherman's bill -- up from 8 co-sponsors for his 2008 effort.

More commentary:

Tags: , ,
Posted on October 1, 2010 by Seth Borden

NLRB Acting General Counsel Announces Effort to Enhance Pursuit of 10(j) Injunctions in Discharge Cases

NLRB Acting General Counsel Lafe Solomon has announced an initiative to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign. According to the announcement:

…in all cases found meritorious the General Counsel’s office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. In addition, new timelines and procedures have been created to speed up the process.

In a General Counsel Memorandum released along with his announcement, Mr. Solomon explains his motivation for this decision thus:

An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it “nips in the bud” all of the employees’ efforts to engage in the core Section 7 right to self-organization.

Under Section 10(j) of the Act, the Board is authorized to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation. The guidelines promulgated under this new initiative direct the Regional Offices to identify potential Section 10(j) organizing campaign discharge cases “as soon as possible after the filing of the charge” and establish coding instructions to facilitate the Board’s tracking of such cases. Pursuant to the “optimal timeline” set forth in the guidelines:

  • Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases.
  • Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
  • If charging party’s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue be submitted to the Regional Office within 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge.
  • A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.

NLRB Chairman Wilma Liebman said in a statement that the Board has also revisited its procedures for requests to pursue injunctive relief: “The Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.”

This is the latest in a series of developments expanding or seeking to expand the Board’s use of injunctive relief. Last month, we highlighted a preliminary injunction issued by a federal court in California requiring a bottler to recognize and bargain with the Teamsters pending resolution of unfair labor practice charges. In that blog post we also noted

Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases. Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

With Mr. Solomon’s announcement, it appears that the current Board will indeed be more aggressive in this regard in a wider variety of “nip-in-bud” cases.

Tags: , , , , ,