Posted on January 28, 2011 by Seth Borden

Attorneys General in Four States Respond to NLRB Regarding Secret Ballot Laws

In case you missed the reference by Senator DeMint (D-SC) included in our post yesterday, the Attorneys General of Arizona, South Carolina, South Dakota and Utah have filed a joint letter in response to NLRB Acting General Counsel Lafe Solomon's recent invitation to address the constitutionality of the states' secret ballot amendments. 

The letter from the AG's begins:

Your Office wrote to each of us on January 13, threatening to file lawsuits challenging our States' constitutional provisions guaranteeing the secret ballot in elections for determination of employee representation. We reject your demand to "stipulate to the unconstitutionality" of these amendments. These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.

The voters of our States overwhelmingly support the laws that you threaten to challenge. Indeed, 86% of South Carolina's voters approved the amendment supporting secret ballots. Likewise, the voters in Utah, South Dakota, and Arizona approved constitutional amendments protecting secret ballots by votes of 60%, 79% and 61% respectively.

The states argue that the amendments support the current federal law that guarantees an election with secret ballots "if the voluntary recognition option is not chosen," and do not disrupt the federal regulatory scheme in any way.  The Attorneys General pledge to defend the provisions against lawsuits by the federal government and urge the Board to respect the decision of the States' voters. 

It would appear to be the Board's move.

More commentary and resources:

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Posted on January 27, 2011 by Seth Borden

Senator DeMint Introduces Secret Ballot Protection Act in Senate

Senator Jim DeMint (R-South Carolina) today introduced the Secret Ballot Protection Act (SBPA), a bill intended to "guarantee the right of every American worker to have a secret ballot election on whether to unionize."  While the full text is not yet available, versions of this bill introduced in earlier sessions of Congress would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election.  The bill has been introduced repeatedly in previous Congresses during legislative battles over the Employee Free Choice Act.  Seventeen Republican cosponsors have joined DeMint to introduce the bill.

In an introductory press release, Sen. DeMint referenced EFCA directly:

“Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election....  Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder. No American should be forced to join or pay dues to a union just to have the opportunity to work and provide for their family.”

The Senator's release also makes express reference to the recent letter sent by the Acting General Counsel of the NLRB to four states – South Carolina, Arizona, South Dakota and Utah -- regarding their state constitutional amendments making secret ballot elections mandatory:

The threatening letter was written by acting NLRB general counsel, Lafe Solomon, who has not been confirmed by the Senate. Today, the states responded to the board in a letter stating: “These state laws protect long existing federal rights and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”

In a Washington Post piece earlier this month, I predicted that passage of either the Employee Free Choice Act or the Secret Ballot Protection Act would be nearly impossible in this Congress.  It isn't hard to see why.  While the SBPA would likely sail through the House, finding the thirteen Democratic Senators to break party ranks to pass a cloture motion on this will be difficult.   To be sure there were Democrats who opposed EFCA, but few of them staked a vocal, public position -- and some of them are no longer serving.  

Still, this bill may be an important contribution to a debate certain to continue, if not by legislation, certainly via the Board's administrative processes and the Courts -- namely, to what extent are alternative means of union recognition lawful, tolerated, inferior, encouraged or prohibited?

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Posted on January 27, 2011 by Seth Borden

President Obama Re-Submits Nomination of Craig Becker to NLRB

Yesterday, President Obama once again sent to the Senate the nomination of current National Labor Relations Board Member Craig Becker for a term of five years expiring December 16, 2014.  

The President previously nominated Member Becker -- a former professor and attorney for SEIU and the AFL-CIO -- to the Board back in July of 2009.  His nomination generated a significant amount of opposition from the business community who viewed his pro-labor resume and controversial academic positions as inconsistent with service on the Board.  In February 2010, the Senate failed to pass a cloture motion on Becker's nomination, by a vote of 52-33, and it was returned to the President.   Subsequently, President Obama recess appointed him to a Member's seat which, in the absence of further action, he will hold until the end of 2011.

It is unlikely that this re-submitted nomination will go anywhere.  A broader Democratic majority in the 111th Congress was unable to advance the nomination -- with two Democratic Senators voting against cloture.  Since his appointment, there has been additional concern expressed by the business community in regard to Member Becker's refusal to recuse himself from cases involving the SEIU, AFL-CIO or their affilliates.  In connection with the Board's decision in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), Case No. 21-CB-14428 (June 8, 2010), Member Becker issued a decision on all such motions.  He stated therein that he would recuse himself from any cases in which the SEIU or the AFL-CIO was a party, but not from cases involving a subordinate chapter or local.  He indicated that the SEIU international union is a "separate and distinct legal entity" by whom he was employed.  In the event his nomination comes up for a hearing, we will hear a great deal about this.

In the meantime, Member Becker will continue to serve on the Board, and one might expect continuing bold pronouncements, decisions, rule-making and other such developments from the Board.  Back in April 2009 and again in April 2010, we posted a catalogue of issues we expected President Obama's NLRB to pursue.  The Board has been advancing through our predictions apace and, if nothing else, the President's re-nomination of Member Becker now signals the Administration's comfort with these developments.

More commentary:

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Posted on January 25, 2011 by Seth Borden

Round-Up: January 25, 2011

In advance of tonight's State of the Union address by President Obama, The Caucus blog at the New York Times asked "more than 20 interest groups in Washington what advice they are giving the president, either in public or in private."  The response from AFL-CIO policy director Damon Silvers:

We need to have an economic recovery that creates jobs and rebuilds the middle class because if we are reduced to competing to cut spending instead of deciding how to compete in the world economy then we are having the wrong conversation. … We also hope that the president will protect and defend Social Security and Medicare, which are crucial lifelines for working families, seniors and the disabled.

Last week, we reported on the President's Executive Order announcing a government-wide view of federal agencies and their regulations.  Today, NAM's Shopfloor blog provides a compilation of commentary and news developments, including the House Energy and Natural Resources Committee's announcement of hearings on the issue.  From Shopfloor:

The Hill (blog), “Republicans to hold oversight hearing on Obama’s regulatory review”.

The Weekly Standard, Fred Barnes, on the hearing as part of the Republicans’ oversight strategy, “In the Dock: Get ready for two years of Obama administration oversight by the House GOP”.

And, for a more thorough, conservative-minded examination of Cass Sunstein, his writings and his philosophy of government, we recommend The Claremont Review’s recent article, “A Czar is Born.” Post-modernism meets progressivism, author Joseph Postrell argues.

Finally, the interruption of a Mortgage Bankers Association conference in D.C. last week by 200 union protestors who stormed the event garnered some media attention.  Now, it seems the Huffington Post has cut ties with Matt Elk:

who secured press credentials to the event through his affiliation as a blogger with the Huffington Post, and who then passed those credentials off to one of the union organizers. 

Elk was not paid by HuffPo as a contributor.  Yet, last night, Elk carried on a conversation via Twitter in which he suggested the website may have violated the National Labor Relations Act by "firing him."  Elk suggested that he might file a ULP charge to test the parameters of the NLRA definition of "employee" in the constantly evolving age of social media technologies:

it would be interesting just to file for the precedent of determine what is an employee and what isnt an employee as def change

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Posted on January 21, 2011 by Seth Borden

NLRB Acting General Counsel Urges Narrowing of Arbitration Deferral Standards

The Acting General Counsel yesterday issued General Counsel Memorandum No. 11-05, narrowing the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations. Last year, In Operations Memorandum 10-13(CH), prior General Counsel Ronald Meisburg identified tensions between the Board’s Spielberg/Olin deferral standards, D.C. Circuit Court of Appeals jurisprudence, and the recent Supreme Court case, 14 Penn Plaza, LLC v. Steven Pyett, 129 S. Ct. 1456 (2009). This earlier Memorandum invited a re-evaluation of the Board’s standards in light of these decisions.

Acting General Counsel Solomon’s Memorandum now announces a new approach:

Specifically, in Section 8(a)(1) and 8(a)(3) statutory rights cases, the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator. This includes not only cases involving Section 8(a)(1) and 8(a)(3) discipline and discharge, but also all other cases involving Section 8(a)(1) conduct that is subject to challenge under a contractual grievance provision.

The Memorandum urges the Board to impose the burden of proof for deferral upon the party urging deferral:

Thus, the party urging deferral must demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board should, as now, defer unless the award is clearly repugnant to the Act.

Finally, the Memo acknowledges that changes in Regional Office investigation procedures are necessary in light of these developments:

To prevent any such difficulties in future cases raising allegations of Section 8(a)(1) and 8(a)(3) that will be deferred under Collyer, particularly as a heightened standard would likely make at least some additional arbitral awards inappropriate for deferral, Regions should take affidavits from the Charging Party, and from all witnesses within the control of the Charging Party, before they make their “arguable merit” determination in considering Collyer deferral.

Only then, if the Region determines there is arguable merit to the charge and the other Collyer requirements are met, should the Region defer the charge. If the Region concludes the charge is without merit, of course, it should dismiss the charge, absent withdrawal.

In all pending and future cases where the Region has deferred a charge to arbitration under Collyer, when the arbitral award issues, the Region must review the award to determine whether post-arbitral deferral is appropriate. The Region should determine if the party urging deferral can demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue; and (3) the arbitral award is not clearly repugnant to the Act. Upon making its determination, the Region should submit the case to the Division of Advice, along with the Region’s recommendation as to whether to defer.

As a result, even in cases where the underlying merits are subject to pending or past grievance and arbitration proceedings, the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met.  Employers must adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and, their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.

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Posted on January 21, 2011 by Seth Borden

NLRB Acting General Counsel Directs Regional Offices to Include Default Language in All Settlement Agreements

In late 2010 and earlier this month, we observed that the NLRB was getting more aggressive in its enforcement of settlement agreements by including onerous "Default" or "Performance" language in some agreements.  This language generally required the employer to agree that in the event of alleged non-compliance with the settlement, all factual allegations in a re-issued Complaint would be deemed admitted.  

Now it's official. The Acting General Counsel has made this language mandatory. In General Counsel Memorandum No. 11-04 issued last week, Acting GC Lafe Solomon has directed Regional Offices to include the following language in all future settlement agreements:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party/Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

One might expect that insistence on this language in a settlement agreement would make an employer far less willing to settle a case.  By requiring a waiver of the employer's rights to defend itself on the substance of the charges, this language puts an employer in a more precarious position after settling than it is in before.  It significantly raises the stakes in a compliance proceeding.

The Board would argue, however, that is the point -- that a charged party is more likely to abide strictly to the terms of the settlement agreement, and not risk being charged with non-compliance.  Of course, compliance disputes may be generated by anyone: the Board, individual employees, or a union.  This certainly provides an agitator or a union pursuing an aggressive organizing strategy with an additional potent weapon.

The Board asserts that its review of Regions historically using this language at their discretion have had higher rates of success both settling and litigating cases:

five Regions routinely propose[d], and three of those Regions regularly insist[ed] upon, inclusion of default language in all informal settlement agreements. With a settlement goal of 95%, these five Regions achieved settlement rates in FY 2009 of 96.9, 98.3, 95.6, 96.5 and 93 percent, respectively, and in FY 2010 of 100, 96.2, 94.2, 91.6 and 95.1 percent, respectively. These Regions also achieved litigation “win rates” in FY 2009 of 100, 75, 83.3, 90 and 93.3 percent, respectively, compared to a national rate in FY 2009 of 89.9 percent, and achieved litigation “win rates” in FY 2010 of 100, 100, 87.0, 87.5 and 100 percent, respectively, compared to the national rate in FY 2010 of 91.4 percent.

The Board thus continues its trend of strengthening remedies and enforcement options available to it to enforce the National Labor Relations Act.  We should not expect these developments to end anytime soon.

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Posted on January 21, 2011 by Seth Borden

Bureau of Labor Statistics Releases 2010 Union Membership Stats

The Bureau of Labor Statistics (BLS), an agency of the U.S. Department of  Labor released its annual report of union membership in the United States. Overall, the rate of union membership was 11.9 percent, down from 12.3 percent in 2009. The total number of workers belonging to unions declined by 612,000 to 14.7 million.  But union membership in the public sector remained stronger.  The BLS summary includes these observations:

   --The union membership rate for public sector workers (36.2  percent) was
     substantially higher than the rate for private sector workers (6.9 percent).
     (See table 3.)

   --Workers in education, training, and library occupations had the highest
     unionization rate at 37.1 percent. (See table 3.)

   --Black workers were more likely to be union members than were white, Asian,
     or Hispanic workers. (See table 1.)

   --Among states, New York had the highest union membership rate (24.2 percent)
     and North Carolina had the lowest rate (3.2 percent). (See table 5.)

You can read the rest of the BLS summary here, or the entirety of the BLS Report starting here.

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Posted on January 20, 2011 by Seth Borden

Bloomberg: U.S. Governors Confront Public Sector Unions

Excerpt from today's Bloomberg.com, "Public-Worker Unions Confront U.S. Governors Over Benefits in Role Switch":

Pension Rollback

In New Jersey, with a projected $54 billion gap between assets in its pension and payments promised retirees, Republican Governor Chris Christie wants to roll back a 9 percent benefits increase enacted in 2001 and raise the retirement age to 65 from 62.

“Benefits are too rich and contributions are too small,” Christie said in his Jan. 11 State of the State speech. “The system is on a path to bankruptcy.”

Christie, 48, has also clashed with teachers. He’s sought to cap school-superintendent pay and wants salaries and tenure linked to student performance. The governor’s chiding of a teacher about union unwillingness to accept a one-year pay freeze became a popular Internet video.

In New York, Democratic Governor Andrew Cuomo, 53, with a $10 billion projected budget gap, has called for a one-year state-wage freeze and is mobilizing business for a media campaign supporting his agenda. California’s Brown, 72, confronting a $25.4 billion deficit over the next 18 months, wants to cut employment costs by as much as 10 percent in part with the unpaid days off.

Bargaining Rights

The strongest challenges to unions come from newly elected Republicans such as Wisconsin’s Walker, 43, and Ohio’s Kasich, 58. They were part of a November election wave that now puts their party in control of 25 legislatures and 29 governorships. In addition to proposals to cut wages and benefits, both are seeking to curb workers’ collective-bargaining rights.

“The scope of these attacks is unprecedented,” said Naomi Walker, the Washington-based director of state-government relations at the AFL-CIO, the nation’s largest union organization.

While labor unions haven’t said they will withhold campaign money from Democratic candidates who have been traditional allies, actions such as those of Brown and Cuomo could temper the enthusiasm of union voters, Walker said.

“These things will certainly impact whether working families get involved in their political campaigns,” she said.

Unions should use teachers, firefighters and active-duty police as spokesmen so there is “a sympathetic face attached to the issue,” said Chris Lehane, a California-based Democratic strategist who worked on the 2000 Al Gore presidential campaign.

Read the entire piece here.

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Posted on January 19, 2011 by Seth Borden

President Obama Orders Government-Wide Review of Federal Regulations

Yesterday, President Obama issued an Executive Order, "Improving Regulation and Regulatory Review", announcing a review of all federal agency regulations. According to the Order and accompanying documents released by the White House, this effort aims to streamline rules and reduce burdens on small businesses, while increasing “transparency and accountability in regulatory compliance.” While many have been quick to identify this as part of a post-election trend by a White House seeking to mend fences with the business community, it is clear that the President also intends to increase scrutiny, pressure and consequences upon “bad actors.”

The White House “fact sheet” accompanying the issuance of the Order states:

Today, President Obama signed an Executive Order outlining his regulatory strategy to support continued economic growth and job creation, while protecting the safety, health and rights of all Americans. This strategy builds on best practices of the past, while adapting to challenges the country faces today and establishing a smart path for the future. As part of the immediate implementation of this strategy, the President also issued a memorandum to the heads of Executive Agencies and Departments calling for more transparency and accountability in regulatory compliance, as well as a memorandum emphasizing the need to reduce burdens on small businesses whenever possible.

An express extension and reaffirmation of President Clinton’s Executive Order No. 12866, this Order and accompanying documents call on federal agencies “to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness.”

The Order and accompanying documents provide an outline of “guiding principles” as follows: 

    • Cost-effective and Cost-Justified: Consistent with law, Agencies must consider costs and benefits and choose the least burdensome path.

    • Transparent: The regulatory process must be transparent and include public participation, with an opportunity for the public to comment.

    • Coordinated and Simplified: Agencies must attempt to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.

    • Flexible: Agencies must consider approaches that maintain freedom of choice and flexibility, including disclosure of relevant information to the public.

    • Science-driven: Regulations must be guided by objective scientific evidence.

    • Necessary and Up-to-Date: Existing regulations must be reviewed to determine that they are still necessary and crafted effectively to solve current problems. If they are outdated, they must be changed or repealed.

An accompanying memorandum to Executive Department heads directs federal agencies to make compliance information easily accessible, and available for download, to the public. As it might pertain to workplace regulation, this element certainly sounds like a nod in the direction of the “High Road Contracting” database long expected by federal contractors:

Consistent regulatory enforcement also levels the playing field among regulated entities, ensuring that those that fail to comply with the law do not have an unfair advantage over their law-abiding competitors.  Greater agency disclosure of compliance and enforcement data will provide Americans with information they need to make informed decisions.

This part of the President’s initiative is clearly intended to increase pressure on entities who violate federal statutes and regulations -- including employers who might violate labor laws. Overall, however, the President described all these efforts in a Wall Street Journal op-ed this morning thus:

But creating a 21st-century regulatory system is about more than which rules to add and which rules to subtract. As the executive order I am signing makes clear, we are seeking more affordable, less intrusive means to achieve the same ends—giving careful consideration to benefits and costs. This means writing rules with more input from experts, businesses and ordinary citizens. It means using disclosure as a tool to inform consumers of their choices, rather than restricting those choices. And it means making sure the government does more of its work online, just like companies are doing.

More commentary, resources:

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Posted on January 19, 2011 by Seth Borden

AFL-CIO's Trumka: "Washington Politicians Living in Wonderland, Ignoring Workers"

The New York Times politics and government blog, The Caucus, this morning previewed a speech by Richard Trumka, president of the AFL-CIO, criticizing Washington politicians for living in an “Alice in Wonderland political climate.”  Per the blog, his remarks are "designed to push back against the policies of Republican lawmakers who seized control of the House in last year’s elections," as well as "a goad to President Obama, whose administration has recently seemed eager to court the business community."

An excerpt from the blog:

The speech will help to set the tone of a debate that is likely to intensify as business and labor groups verbally clash during the 2012 presidential campaign.

“So let me get this straight,” Mr. Trumka says, according to excerpts of remarks obtained by The Caucus. “We need to slash retirement and health benefits for the elderly because we are on the brink of fiscal crisis — but we can afford to squander hundreds of billions of dollars in tax cuts for the super-rich? Only at the Mad Hatter’s tea party does this make sense.”

The AFL-CIO and other unions spent tens of millions of dollars during the 2010 midterm elections to make the case for Democratic candidates. But most of those candidates ended up losing in a political wave that swept in many lawmakers backed by the increasingly influential Tea Party movement.

Mr. Trumka plans to say the elections were “fundamentally about jobs” and predicts the 2012 campaign will feature the same concerns among voters.

Read the rest here.

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Posted on January 17, 2011 by Seth Borden

LRToday in WaPo: "Significant Labor Law Changes Will Bypass Congress"

Today's Washington Post's "Capital Business" section published a piece I wrote about what to expect from labor law developments during the coming months.  The intro:

When President Obama took office in early 2009, many expected significant legislative changes in the area of traditional labor law to facilitate union organizing in the private sector. But the new Republican majority in Congress on the one side and the Democrats' simple Senate majority and presidential veto pen on the other make passage of sweeping legislation like the Employee Free Choice Act -- or for that matter the converse Secret Ballot Protection Act -- all but impossible.

Employers should still expect significant changes, however, as the president will instead advance his regulatory agenda administratively through the National Labor Relations Board (NLRB) and the issuance of executive orders. If you're running a nonunion workplace today, these developments will make it easier for unions to organize your employees. Regardless of one's personal feelings about unions or union representation, there's no question that this increased government oversight, regulation and involvement will have a significant impact on large and small businesses alike.

Read the rest here.

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Posted on January 16, 2011 by Seth Borden

NLRB Asserts State Secret Ballot Laws Are Unconstitutional

This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – Arizona, South Carolina, South Dakota and Utah – that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

More commentary, resources:

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Posted on January 12, 2011 by Seth Borden

NLRB Invites Briefs On Jurisdiction Over Charter Schools

On January 10, 2011, the National Labor Relations Board invited briefs from interested parties in a case which considers whether the Board has jurisdiction over a charter school in Illinois. In Chicago Mathematics & Science Academy Charter School, Inc. (13- RM-1768), the Chicago Alliance of Charter Teachers and Staff filed a petition for a representation election with a state labor agency, the Illinois Educational Labor Relations Board. Seeking to represent a unit of teachers, social workers and counselors, the union asserted that the state board filing was proper because the school is a “political subdivision” of the state. Such political subdivisions are exempt from the federal jurisdiction of the NLRB under Section 2(2) of the National Labor Relations Act.

The Charter School, however, maintains it is not a political subdivision of the state, and that the NLRB should conduct any election. In NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971), the Supreme Court set forth a test for assessing whether entities are exempt “political subdivisions”. Entities are so exempt if they are “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.”

The state laws establishing charter school laws vary from state to state. Applying the facts of various cases, NLRB Regional Directors have come to differing conclusions -- asserting jurisdiction in some cases and declining in others. The Board has indicated that the “decision in this case could provide further guidance as to when charter schools fall under NLRB jurisdiction."

Briefs are due by March 11, 2011, with responsive filings by March 25, 2011.

More commentary, resources:

 

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Posted on January 7, 2011 by Seth Borden

Congressman Introduces House Resolution Opposing Bailout of State and Local Pension Funds

On the first day of the new Congress, Rep. Jason Chaffetz (R-UT) introduced a House Resolution:

Expressing the sense of the House of Representatives that the Federal Government should not bail out State and local government employee pension plans or other plans that provide post-employment benefits to State and local government retirees.

The Resolution lays out a litany of financial challenges facing the federal government, state and local governments, Social Security and related trust funds, and various government employee pension funds.  Most critically, the Resolution asserts:

numerous State and local government employee pension plans have offered overly generous retirement benefits to its employees and are in dire financial situations with combined unfunded liabilities up to $3 trillion...

Substantively, the Resolution declares:

(1) the Federal Government should not bailout State and local government employee pension plans and other post-employment benefit plans; and

(2) State and local governments should immediately institute reforms to their employee pensions plans, including replacing defined benefit plans with defined contribution plans.

As this is a simple Resolution, it will not advance toward promulgation as an actual law.  The result of a House vote on this, however, may very well impact how state and local government approach what has become an extremely pressing issue.

More Resources and Commentary:

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Posted on January 7, 2011 by Seth Borden

UAW Asks Auto-Makers to Agree to "Principles for Fair Union Elections"

The United Auto Workers has issued a two page flier entitled “UAW Principles for Fair Union Elections.”  The Principles are obviously directed at the various foreign automakers operating non-union facilities in the United States.  Among other disputes, the UAW has been engaged in a protracted battle with Toyota over its inability to organize factories primarily throughout the South.  This recently issued document appears to be part of a new, long-awaited P.R.strategy to “reset” the union’s efforts.

The document itself is highly critical of the current state of American labor law, and the institutions tasked with its enforcement. Echoing the language used by sponsors and other proponents of the Employee Free Choice Act, the introductory sidebar to the UAW’s “Principles” states:

The current federal framework under the National Labor Relations Act does not protect the rights of workers to freely decide whether or not to join the UAW. ... Employee attempts at redress are futile due to lengthy delays and lack of penalties.

The Principles include commitments by the parties to comply with existing labor law – e.g., not to promise benefits to deter organizing, not to threaten repercussions on account of union sympathies, etc. Law-abiding employers should not have much problem acknowledging these.

Continue Reading...
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Posted on January 5, 2011 by Seth Borden

President to Nominate NLRB Acting GC Solomon to Post; Terence Flynn as Member

The White House today announced that the President intends to nominate NLRB Acting General Counsel Lafe E. Solomon to be General Counsel of the National Labor Relations Board.   The White House also indicated that it will nominate Member Brian Hayes’ Chief Counsel Terence F. Flynn to fill the currently vacant fifth Board seat.

The White House announcement notes that Mr. Solomon, “a career attorney at the National Labor Relations Board, was named Acting General Counsel of the NLRB by President Obama as of June 21, 2010.”  Mr. Solomon began his NLRB career as a field examiner in Seattle in 1972, and since then has served on the staffs of ten (10) Board Members – both Democrat and Republican appointees.  Mr. Solomon holds a B.A. in Economics from Brown University and a J.D. from Tulane.

As Acting GC, Mr. Solomon has presided over the Board’s reconsideration of the various “Two-Member” cases invalidated by the Supreme Court’s New Process Steel decision, announced initiatives to more aggressively pursue 10(j) preliminary relief and special remedies in organizing cases, and has sought an expansion of traditional remedies for violations of the Act.  It has been a busy few months.

Regarding Mr. Flynn, the Board’s press release issued this evening states:

Terence F. Flynn is currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes.

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Posted on January 5, 2011 by Seth Borden

NLRB Has Busy Last Week of 2010 Issuing Twelve Published Decisions

The National Labor Relations Board was busy during the last week of 2010, issuing twelve published decisions and a number of additional unpublished decisions in representation cases.  Interesting decisions handed down last week include:

  • Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010):  In this straightforward 8(a)(1) interrogation and discharge case, the Board approved the ALJ's Recommended Order directing electronic posting of the remedial notice via the employer's intranet system.  While the ALJ granted this remedy, sought by the General Counsel, prior to the Board's recent J. Picini Flooring decision, the Board (without Member Hayes' agreement) found it consistent with its current position and modified the Order accordingly.  The evidence found by the ALJ to justify this new remedial approach was that the employer maintained an internal "intercom" system, similar to e-mail, which it used to announce to its hair stylists things like staff meetings.  Expect electronic posting to continue to trend toward the presumed appropriate remedy.
  • Sidhal Industries, LLP, 356 NLRB No. 67 (Dec. 30, 2010):  This decision involved another judgment granted pursuant to the more aggressive "performance" language being included by Regional Offices in connection with settlement agreements.  The agreement settling discrimination and refusal to bargain allegations in this case included a lengthy provision indicating that non-compliance with the settlement would result in re-issuance of the complaint, to be deemed admitted by the Board, leaving only the issue of compliance or non-compliance for dispute.  The Board here found non-compliance and, as a result, entered judgment on all the complaint's allegations. 
  • New England Confectionary Co., 356 NLRB No. 68 (Dec. 30, 2010):  Chairman Liebman, and Members Becker and Pearce, found a number of 8(a)(1) violations in promises of better benefits made by supervisors to encourage a decertification effort.  The Board dismissed a number of allegations, however, that the employer's H.R. Generalist violated the Act by soliciting petition signatures and promising employees benefits.  The Board found that the H.R. Generalist lacked "apparent authority" to speak for management, as her role was largely administrative and not managerial in nature.

More information regarding these and the Board's other recent decisions is included in the Board's Weekly Summary of Cases.

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Posted on January 4, 2011 by Seth Borden

House Committee Re-Named "Education and the Workforce Committee"

Following through on changes announced late last month, upon being sworn in today House Republicans re-named the House Committee on Education and Labor.  As of this evening, the Committee's website reflects the new name of the "Education and the Workforce Committee."

As noted in a December 24 Wall Street Journal blog piece, this is not the first time the Committee has borne that name:

For years, the committee was called Education and Labor. But when Newt Gingrich and the Republicans took over the House in 1994, they wanted to show that there was a new sheriff in town—and he was not a pro-labor sheriff.

So they changed the name to the Committee on Economic and Educational Opportunities. Unfortunately, no one knew what that meant, nor could anyone remember the name. So it was soon changed to Education and the Workforce.

“Workforce” is a term employers are likely to use, while “labor” is more evocative of the union movement—after all, they call it the American Federation of Labor. So when the Democrats recaptured the House in 2006, they changed the name of the committee back.

Outgoing Chairman, Rep. George Miller (D-CA) tweeted tonight that:

FYI--Links to the education and labor website are now broken. Find EdWorkforceDemocrats now at http://democrats.edworkforce.house.gov

As for substantive matters, incoming Chairman Rep. John Kline (R-MA) previously announced the Republican complement of the Committee was expected to include: Rep-elect Lou Barletta (PA-11), Rep. Judy Biggert (IL-13), Rep. Rob Bishop (UT-1), Rep-elect Larry Bucshon (IN-8), Rep-elect Scott DesJarlais (TN-4), Rep. Virginia Foxx (NC-5), Rep-elect Richard Hanna (NY-24), Rep-elect Joe Heck (NV-3), Rep. Duncan Hunter (CA-52), Rep-elect Mike Kelly (PA-3), Rep. Buck McKeon (CA-25), Rep-elect Kristi Noem (SD-AL), Rep. Tom Petri (WI-6), Rep. Todd Platts (PA-19), Rep. Phil Roe (TN-1), Rep-elect Todd Rokita (IN-4), Rep. Glenn Thompson (PA-5) , and Rep-elect Tim Walberg (MI-7).

More commentary:


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