Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

In a 3-1 decision published Friday, the National Labor Relations Board has adopted a new access standard for the employees of a contractor wishing to engage in Section 7 activity on the property of a third party where they regularly work.  In New York, New York LLC d/b/a New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), the Board held:

We address only the situation where, as here, a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner's business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.  

We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly intereferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline....

The employees at issue worked for a food service contractor that operated three restaurants and a food court outlet in the interior premises of a Las Vegas casino.  Employees of the contractor working on the casino's premises began organizing efforts on behalf of the union representing the casino's own food service workers.  Off-duty employees of the contractor began entering the casino's public areas -- mostly in front of the contractor's outlets -- and distributing handbills to patrons, asking them to urge the contractor to recognize and bargain with the union.  The casino regularly called Las Vegas police to remove these individuals from the premises.

Back in 2001, the Board found an 8(a)(1) violation against the casino, but the casino petitioned the Court of Appeals which remanded the case for further consideration.  In 2007, the Board accepted amicus briefs and held oral argument, as a result of which, it has now announced this new standard. 

The Board opines here that the contractor's employees do not fit neatly into either category if forced to resolve their rights by considering them as employees of the property owner under the long-standingRepublic Aviation standards or by considering them as non-employee organizers subject to the standards set forth in the Lechmere case.  The Board, nevertheless, viewed the contractor's employees more like employees of the property owner in its analysis.  The Board certainly found compellingthe evidence here that the contractor's employees worked throughout the casino's premises, patronized the same break areas, and provided room service to the casino's hotels. 

The Board recognized that the contractor's employees' Section 7 interests were most compelling, as they were involved in organizing themselves directly.  Balancing this against the property owner's property and managerial rights, the Board concluded that the property owner's interests must give way.  While acknowledging that the property owner absolutely had state property law rights to exclude the off-duty individuals from its property, the Board suggested that the property owner failed to fully protect those rights against the contractor's employees' interests by obtaining language in its leases to address the issue.

Member Hayes filed a dissent asserting that the majority's analysis "pays only lip service to the owner's property interests, and gives no consideration to the critical factor of alternative means of communication."   He would have found a violation only where the casino ejected off-duty employees from the porte-cochere area near the casino's main entrance.     

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a decision published late last week, the Board held that an employer did not violate Section 8(a)(1) of the Act when it disciplined an employee who refused to participate in an investigatory interview until the particular union representative of his choice could attend. In Buonadonna Shoprite LLC, 356 NLRB No. 115 (March 18, 2011), the employee in question was being investigated in connection with a sexual harassment complaint. He appeared, upon request, at his Manager’s office with a shop steward for an investigatory interview. At the advice of the steward, the employee refused to provide the written statement requested by the Manager until speaking with a Union Representative not present at that time. When the employer determined that the particular requested Representative would not be available for at least three days, management resumed the investigation and reiterated the request for a statement. At that time, management denied the employee’s request to telephone the other Representative. When the employee again refused to provide a statement, he was suspended for insubordination and refusal to provide the statement.

The well-settled Weingarten doctrine holds that Section 8(a)(1) of the Act provides a union-represented employee with the right to request the active assistance of a union representative at an investigatory interview that the employee reasonably believes may result in discipline. The Board here, however, held that these employee rights were adequately protected in this case. The Board upheld the finding of the ALJ that the employer had no obligation under the circumstances to wait until a second Representative was available because the employee’s “regular steward… was present and available to represent [him].”

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a case questioned as evidence of the National Labor Relations Board’s desire to implement significant change in the way it determines appropriate units for bargaining, the NLRB last week extended the time for submission of supplemental briefs by interested parties. In February 2009, the Board granted the Employer’s Request for Review in Specialty Healthcare & Rehabilitation Center of Mobile. On December 22, 2011, over the dissent of Member Brian Hayes, a three-Member Board majority issued a Notice and Invitation to File Briefs, 356 NLRB No. 56 (Dec. 22, 2010).

In this case, the union had petitioned for a unit of Certified Nursing Assistants (CNAs) only at the employer’s nursing home, excluding all other non-professional service and maintenance employees. The Regional Director’s determination that the limited petitioned-for unit was appropriate suggested further expansion of the application of the Board’s 1989 final rule regarding appropriate units in acute care hospitals over non-acute care facilities like the nursing home at issue.

The Board has invited interested parties to file briefs in connection with the case. The variety of questions presented explores whether and in what types of cases the Board should move away from its traditional case-by-case analysis of the appropriateness of a petitioned-for unit in favor of a more categorical approach. Briefs were originally due on or before February 22, 2011, but that deadline was previously extended to March 8, 2011. Responsive briefs are due tomorrow.

Over a dozen parties filed amicus briefs, including the American Hospital Association and American Society for Healthcare HR Administration, Retail Industry Leaders Association (RILA), Coalition for a Democratic Workplace, the Chamber of Commerce, AFL-CIO, SEIU, IUOE, and Senators Michael Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA).

Many of the briefs filed by labor organizations focus predominantly on the facts of Specialty Healthcare, choosing to answer the Board’s questions regarding the propriety of the CNA-only unit in the nursing home at issue in that case.

In a brief prepared by Proskauer, however, RILA asserts that the Board’s consideration of a presumptive rule here is based on Member Becker's unsuccessful effort in Wheeling Island Gaming, 355 NLRB No. 127 (August 27, 2010) to adopt as appropriate a very limited unit of just the "poker dealers" at a casino, while excluding all other card dealers.  RILA argues that a presumptive rule based on "employees performing a job" or simply on a "proposed unit" – as considered here -- violates the Board’s mandate, the legislative history of the Act and relevant case law. The broader management concern:

In place of predictability, the Board’s rule would insert the unknown. Instead of stability, it would offer the potential for chaos, as employees currently – and, according to Board precedent, appropriately – placed within homogeneous single-facility bargaining units could be splintered into departmental fiefdoms, each of which would seek to gain leverage and personal advantage. Put simply, 60 years of success indicates there is no problem with the single-store, single-unit presumption the Board currently applies. History likewise suggests that there is every reason to maintain this stability, and not to adopt the change suggested by the Board’s questions.

In addition, Senators Enzi, Hatch and Isakson requested that the Board provide representation case data which might be relevant to the issues under consideration. By letter dated March 7, 2011, Reps. John Kline (R-MN) and Darrell Issa (R-CA) expanded upon this request, asking the Board to post requested representation case data on the Board’s website. Both groups of legislators asked for an extension of time within which to file briefs once the information was provided.

In response, the Board has posted representation case data for the years 2000 to 2011 on NLRB.gov. Moreover, the Board has granted interested parties permission to file ten-page supplemental briefs, based on issues implicated by this data alone, by March 29, 2011.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Wednesday morning, the House Committee on Oversight & Government Reform held a hearing entitled "Regulatory Impediments to Job Creation: The Cost of Doing Business in the Construction Industry".  A main focus of the hearing was President Obama's Executive Order 13502.  That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Last month, Rep. John Sullivan (R-OK) introduced a bill designed to reverse Executive Order 13502.  The Government Neutrality in Contracting Act (H.R. 735) and a similar bill (S. 119) would largely invalidate the President's Order in the absence of special circumstances

Witnesses at Wednesday's hearing included Ennis Electric Co. CEO John Ennis, Jr., on behalf of NFIB; Figg Engineering CEO Linda Figg on behalf of CIRT; Maurice Baskin, Esq. on behalf of Associated Builders & Contractors; Bay Electric CEO Jay Biagas; Michigan State Professor Dr. Dale Berman; Commissioner of the  Public Buildings Service Robert Peck; Administrator of the Office of Federal Procurement Policy Daniel Gordon; and the Assistant Secretary of Labor for OHS, Hon. David Michaels.  The prepared statements and submissions of these witnesses are already available, and the video of the hearing will be available, at the Committee's website.

More resources & information:

• "U.S. House Oversight & Government Reform Committee to Examine Costly Government-Mandated PLA's" -- ABC's TheTruthAboutPLAs blog.
• Labor Relations Today's "Project Labor Agreements" tag
• MLA Government Contracts Advisory, “President Obama Signs Executive Order Allowing Agencies to Require Project Labor Agreements (PLA’s) on Large Construction Projects,” Feb. 10, 2009.
• "Project Labor Agreements: A Better Deal For All" -- The White House Middle Class Task Force

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Chairman of the House HELP Sub-Committee, Rep. Phil Roe (R-TN) has introduced the Secret Ballot Protection Act (H.R. 972).  Back on January 27, 2011, Senator Jim DeMint (R-SC) introduced the Senate version of the bill (S. 217).  Rep. Roe's bill tracks Senator DeMint's bill, and the language of the bill as introduced in previous sessions of Congress.

While the bill faces numerous mathematical obstacles to passage in the Senate, not to mention a certain Presidential veto, the House version should pass easily.  As the National Labor Relations Board and proponents of the Employee Free Choice Act continue to expand endorsement of alternative methods of union recognition, we should expect the House might conduct hearings on this bill.  In recent hearings before Rep. Roe's Sub-Committee, management attorneys urged Congress to pass the Secret Ballot Protection Act in order to avoid the pre-emption battle unfolding between the National Labor Relations Board and state governments over state secret ballot constitutional amendments.

More resources and commentary:

• "The secret ballot protection act" by Rep. Roe -- The Hill's Congress blog
• Web archive of February 11, 2011 House HELP Sub-Committee Hearings
• "Secret Ballot Protection Act Reintroduced in House" -- Enochs Law Firm blog

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Late last week, NLRB Acting General Counsel Lafe Solomon issued two Memoranda regarding expanded powers of the Board when it comes to monetary remedies. 

Memorandum GC 11-08 (March 11, 2011) outlines new methods for calculating backpay in Board cases.  First, it explains how Regions are to compute backpay to include interest compounded daily, consistent with the Board's change of direction in Kentucky River Medical Center, 356 NLRB No. 9 (Oct. 22, 2010).  It also instructs Regions to award additional financial offsets to cover the tax consequences of a lump-sum financial settlement, and to reimburse a discriminatee for the costs of any interim job search.  Moreover, it advises Regions to seek language in future remedial orders requiring the employer to advise the Social Security Administration of the allocation of any backpay award to the appropriate timeframes.  Finally, it indicates that the Board will be conducting training this week for Regional staff on these issues.

The other memo, Memorandum GC 11-07 (March 11, 2011), urges the Board to reconsider two 2007 decisions that require discharged employees to mitigate potential damages promptly. 

In Grosvenor Resort, 350 NLRB 1197 (2007), the Board held that a number of discriminatees did not fulfill their duty to mitigate their damages because they delayed their search for new employment by up to eight (8) weeks.  Based upon a review of earlier Board cases regarding mitigation and the circumstances of the case, the Board ruled that anyone in the case who had waited more than two weeks to commence a job search had waited too long.  The backpay awards for any such discriminatee was calculated from the beginning of his or her search.

In St. George Warehouse, 351 NLRB 961 (2007), the Board shifted the burden of production in mitigation cases to the General Counsel to establish that a discriminatee took reasonable steps to seek equivalent jobs in the relevant market. 

The new Memorandum asks the Regional Offices to identify cases that may be proper vehicles for overruling these two cases, thus:

• St. George Warehouse -- Regions are authorize to seek reversal of St. George Warehouse and the changed burden of production in all cases where a discriminatees' [sic] reasonable search for work is being litigated.  In such cases, Regions should object to the shifted burden of production and challenge the St. George Warehouse rule, bt should put forth the reasonable search evidence as required under that decision (consistent with this Guideline Memorandum's discussion of using receipt of unemployment beenfits as prima facie evidence).  In arguing against St. George Warehouse, Regions should use the legal argument set forth [herein] and may consult the Division of Advice for further assistance in litigating this issue.

• Grosvenor Resort -- Regions should determine, as part of their compliance investigation, what is a reasonable period of time for the discriminatee to begin to search for work.  Regions are authorized to seek reversal of Grosvenor Resort in cases in which the Region determines that a delay of more than two weeks is reasonable. 

Employers with cases pending at Regional Offices should take specific note of these Memoranda.  Others should also see them as the latest developments in a few trends -- most notably, the current Board's intent to overturn caselaw from the prior administration; and, to expand the Board's remedial powers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Senator Jim DeMint (R-SC) has introduced a National Right to Work bill in the Senate, joined by seven Republican original co-sponsors.  In a statement issued earlier today, Senator DeMint identified Senators Tom Coburn (R-OK), Orrin Hatch (R-UT), Mike Lee (R-UT), Rand Paul (R-KY), James Risch (R-ID), Pat Toomey (R-PA) and David Vitter (R-LA) as co-sponsors of the National Right to Work Act.  

"Right-to-Work" laws generally prohibit "union security" agreements -- or contract provisions between unions and employers making membership or payment of union dues or fees a mandatory condition of employment.  A union security agreement is generally a permissible exception to the National Labor Relations Act's prohibition against discrimination based on union membership or support.  The 1947 Taft-Hartley amendments to the Act, however, added subsection 14(b), allowing states to pass "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 Senator DeMint's bill is not yet available, but presumably it would codify in the NLRA language similar to any one of the various state provisions which outlaw mandatory dues provisions.  UPDATED (6:00 pm): The National Right to Work Act would strike the provisions of Section 8(a)(3) and Section 8(b) of the NLRA, and Section 2(11) of the Railway Labor Act, which exempt "union security" agreements from prohibitions against discrimination based on union membership or support.

In introducing the bill, the Senators point to a recent poll by the National Right to Work Foundation which reported:

Eighty percent supported the Right to Work principle that union membership and dues payment should be voluntary and not required as a condition of employment.

Senator DeMint's statement asserts:

“No American should be forced to join a union and pay dues to get a job in this country,” said Senator DeMint. “Many Americans are already struggling just to put food on the table, and they shouldn’t have to fear losing their jobs or face discrimination if they don’t want to join a union. Forced-unionism shields unions from member accountability and has a detrimental effect on the economy. In states where companies are forced to hire only union workers, businesses have struggled to compete while they deal with counterproductive work rules.”

Conversely, in previous sessions of Congress, Rep. Brad Sherman (D-CA) introduced legislation to strip Section 14(b) out of the NLRA, nullifying state Right-to-Work laws.  When he introduced the most recent version, H.R. 6384, in October 2010, the Congressman explained his position thus:

“...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.”

UPDATED:  A copy of Senator DeMint's proposed bill is here.

(H/T: Senatus blog)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week,NAM's Shopfloor blog and others questioned why the National Labor Relations Board was promoting unionization via ads on Google. Late on Friday, the NLRB issued a statement clarifying that it had not paid for the ads and that it was discontinuing their use. 

On the heels of last week's letter seeking information from the NLRB about its budget claims in the wake of the debate over H.R. 1, the House Committee on Education and the Workforce has now sent a letter requesting information about the agency's Google ads.  In a letter to NLRB Chairman Wilma Liebman dated March 4, 2011, Committee Chairman Rep. John Kline (R-MN) asserts:

To protect employees' rights under the NLRA, the NLRB must maintain a neutral position between unions, employees, and employers.

The letter then requests the following information be produced by March 18th:

1.  All documents and communications relating to Google advertisements.

2.  All documents and communications relating to the NLRB's advertising strategy and goals.

3.  Itemized list of all advertising disbursements.

More resources and commentary:

• "Fact Check: Google Ads" - National Labor Relations Board website
•  "House Committee Asks For Information on NLRB's Google Ads" - NAM Shopfloor blog
• "Union-Controlled NLRB Suddenly Pulls Google Ads on 'How to Start a Union'" - BigGovernment
• "NLRB [Not] Running Google Ads" - LawMemo
• "Google's Union Spirit" - Ben Smith on Politico SMQW3UWSKYUF

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Earlier this week, NAM's Shopfloor blog posted a piece noting that Google featured ads for the National Labor Relations Board's website, under the heading "Labor Organizations Info" and reading:

Find Info on How to Start a Union

Get the Process and More on Our Site!

Shopfloor and LaborUnionReport both questioned why a federal agency might be using taxpayer dollars to promote the formation of unions.

Late this afternoon, the National Labor Relations Board issued a brief "Fact Check" statement, purportedly to correct what it calls "an error of fact" thus:

It has been reported that the NLRB spent Agency funds on Google ads. An initial review indicates that the ads were provided at no charge beginning in 2008 by Google.

And...

The Agency has decided to discontinue them.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Friday, February 18, National Labor Relations Board Chairman Wilma B. Liebman and Acting General Counsel Lafe Solomon issued a statement responding to proposed cuts to the agency’s budget under consideration in H.R. 1, the Full-Year Continuing Appropriations Act  (page 303, lines 17-19).  The statement indicated that the only way to deal with the budgetary reduction would be to furlough all of the NLRB's employees for nearly three months.  The statement has subsequently been removed from the NLRB's website.

Yesterday afternoon, the Chairman of the House Committee on Education and the Workforce, Rep. John Kline (R-MN), and the Chairman of the Subcommittee on Health, Education, Labor & Pensions, Rep. Phil Roe (R-TN) sent a letter to Chairman Liebman requesting production of information in support of her assertion.  The letter makes requests as follows:

1.  All data supporting your assertion that a $50 million NLRB budget reduction for fiscal year 2011 would force the NLRB to furlough all of its 1,665 employees for 55 workdays between now and the end of September.

2.  All documents and communications relating to the February 18, 2011 joint statement you issued with Acting General Counsel Lafe Solomon relating to the $50 million NLRB budget reduction.

3.  All NLRB Performance Budget Justifications from fiscal year 1999 to 20009.

4.  Identify each fiscal year in which the NLRB had a surplus.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As Ohio's SB5 proceeds toward likely passage, and the protests continue in Madison, Wisconsin, the National Journal's Reid Wilson examines Labor's "precarious position in the political arena." 

After discussing the considerable power of unions in the Democrats' experiences during Pennsylvania's 2002 state elections, and early in Governor Howard Dean's 2004 presidential run, Wilson observes:

Then came 2008, when Obama, an upstart with little connection to the Democratic establishment, and labor specifically, was competing against two established brands.

Most major unions lined up behind then-Sen. Hillary Rodham Clinton, D-N.Y., or former Sen. John Edwards, D-N.C.; the first national union to endorse Obama, the plumbers and pipefitters union, did so on January 9, 2008, after Iowa and New Hampshire had already allocated their delegates. Obama won the Democratic primary with virtually no union help.

The lesson Obama’s team learned, according to Democrats close to the campaign, was that labor’s organizing methods on behalf of Clinton and Edwards were less effective than the organization Obama put together.

Politico's Ben Smith adds these thoughts on his blog:

This is certainly part of what drives Obama's refusal to do any lifting on the Employee Free Choice Act, the top union priority, and his reluctance to make concessions to labor in the health care legislation. 

I'd frame it a bit differently: He did wind up with quite a bit of union support, beginning with the backing of the key Culinary Workers union in Nevada, and particularly including the flood of cash from Andrew Stern's SEIU. But they only came on board after Iowa, and he'd barely courted most unions, and made none of the specific promises and commitments to them that Clinton and Edwards did.

Yet, he notes that the events in Wisconsin have mobilized the labor movement in a way likely to have greater impact in the 2012 electoral cycle than previously anticipated.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Tonight's expiration of the collective-bargaining agreement between the NFL and the NFL Players Association was forestalled by the mutual agreement of the parties on a 24-hour extension.  Per a statement released this evening:

“Federal Mediation and Conciliation Service Director George Cohen has announced that the NFL and NFL Players Association have agreed to extend the expiration of the CBA for 24 hours and continue negotiating under the direction of Mr. Cohen. The CBA now is scheduled to expire on Friday night at midnight. The agreement by both sides to refrain from comment on the negotiations remains in place.”

The owners will reportedly be back before Director Cohen tomorrow morning without the union's immediate participation.

Earlier in the day, President Obama had this to say about the proceedings:

“You’ve got owners, most of whom are worth close to a billion dollars; you’ve got players who are making millions of  dollars,” said the president, who is a big fan of the Chicago Bears. “My working assumption, at a time when people are having to  cut back, compromise and worry about making the mortgage and, you  know, paying for their kid’s college education, is, is that the two  parties should be able to work it out without the president of the  United States intervening…. "

Football fans will once again tomorrow be glued to the D.C. street corner at 21st & K, looking to see if the folks inside the FMCS building can do just that.

• Email This
• Print
• Comments
• Trackbacks
• Share Link