Posts belonging to Category labor unions

Just in case you missed this, the U.S. Court of Appeals for the District of Columbia struck down yesterday a federal rule that would have required employers to nail posters to their bulletin boards or common-area walls informing employees of their rights to unionize.

This Associated Press account on the Newsday site calls the decision against the National Labor Relations Board in National Association of Manufacturers v. NLRB “another blow to the nation’s dwindling labor unions.”

It also specifies details of the ruling, stating that the NLRB violated employers’ free-speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice.

“The court’s ruling is the latest success for business groups that have worked to prevent the NLRB from shifting the legal landscape in favor of labor unions, despite President Barack Obama’s appointment of several labor-friendly board members,” the AP account says.

Here is my latest blog post on this poster controversy, containing links to my previous posts, which should give you a good chronological journey through this tussle.

Meanwhile, this legal alert on the Arent Fox site reminds us that Tuesday’s appeals-court decision on the poster rule comes less than four months after the same court invalidated Obama’s recess appointments of three NLRB members.

Here are three separate blog posts by me on this recess-appointments controversy — from April 2, March 20, and Feb. 19 — for your reading pleasure.

Lastly, this link from Practical Law Co. spells out the reasons behind the DC Circuit decision regarding posters. The court, it says, “held that the NLRB’s poster rule is invalid because each of the three ways in which the NLRB would enforce its poster rule was invalid. In particular, the court found that the NLRB could not lawfully:

• Make a failure to post the notice an unfair labor practice (ULP).
• Interpret a failure to post the notice as evidence of anti-union animus in NLRB proceedings.
• Toll the six-month statute of limitations indefinitely for employees to file ULP charges against an employer that fails to post the notice.”

As always, I will try to keep you posted on developments.

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This past Monday, a law went into effect that granted San Jose, Calif., low-wage workers what decades of traditional labor-organizing efforts hadn’t: a higher minimum wage.

As reported by The Los Angeles Times, San Jose joins Long Beach on a growing list of American cities—including Albuquerque, San Francisco, Santa Fe and Washington—where voters have approved measures that secure higher wages for workers.

In November, 58 percent of San Jose voters endorsed raising the minimum wage in the city from $8 to $10 an hour.  In Long Beach, 63 percent of voters awarded the city’s hotel workers an increase of about $4 per hour, on average.

According to The Times, “the victories put these two California cities on the cusp of an emerging trend: Ballot initiatives, labor experts say, have the potential to rewrite labor’s playbook for how to win concessions from management.”

This labor strategy began in the 1990s, the article notes, with labor unions reaching out to city councils in an effort to pass living-wage requirements. The initiatives have expanded in recent years, however, as labor activists have bypassed city council to team with labor and community leaders in taking minimum wage issues to the ballot box.

Organized labor’s successes in states such as California and Washington could spread to communities in other parts of the country where union-friendly politicians are elected, Maria Anastas, a shareholder in the San Francisco office of labor and employment law firm Ogletree Deakins, told HRE.

“It’s already become a trend a sorts, given that other cities have followed suit,” says Anastas. Still, she doesn’t necessarily anticipate a nationwide trend emerging, “because it depends on the electorate in each community or state.”

For example, she says, Minnesota—where Democrats control both houses—is on the verge of passing the highest state minimum wage in the United States.

In addition to urging local politicians to pass higher minimum wage ordinances, organized labor has publicly targeted specific industries for failing to pay workers a ‘fair wage.’ These web-based campaigns and public rallies have recently focused on fast food and other restaurant workers. The combination of political efforts and public awareness will likely lead to more success for organized labor’s efforts in this arena.”

The message for employers and HR, she says, is twofold:

Organized labor has in some cases concentrated their minimum wage efforts on select industries, i.e., hospitality. Therefore, employers in these industries who may be impacted by a higher minimum wage should recognize that organized labor will likely capitalize on these successes by increasing their organized efforts.”

Secondly, employers with concerns about minimum wage ordinances “should focus on strengthening their relationships with political leaders and business advocates in advance of organized labor’s legislative initiatives,” she says, “in addition to maintaining a positive public image.”

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Wal-Mart, the 8-million pound gorilla of retailing, is feeling the heat and responding forcefully. OUR Walmart, a coalition of disgruntled WalMart employees that is affiliated with the United Food and Commercial Workers Union, is staging a series of walkouts and protests by Wal-Mart employees at locations throughout the country, to culminate in protests at more than 1,000 U.S. stores this Black Friday. The organization says the workers will be protesting against what they say are unfair labor practices by the Bentonville, Ark.-based retailer. Wal-Mart has filed a complaint with the National Labor Relations Board seeking an injunction against the protests on the grounds that the planned protests violate a section of the National Labor Relations Act that limits picketing by a union seeking recognition to no more than 30 days. The NLRB has promised a ruling within a few days–an extraordinarily fast turnaround time, by the agency’s standards.

In its complaint, Wal-Mart maintains that the protests represent an ongoing attempt by the UFCW to unionize its workers and that the protests have exceeded 30 days. OUR Walmart has denied that its protests are about seeking union recogniation — instead, it says, they are designed to call attention to what it says are unfair wages and working conditions at Wal-Mart and retaliation taken by the company against employees who’ve spoken out. Wal-Mart has denied the allegations and says it’s confident the protests won’t dent its bottom line: “We don’t think what the unions are planning will have any impact on our business at all,” it told the Financial Times.

Meanwhile, Casey St. Clair, a 24-year old employee at a Target store in Norco, Calif., started a petition on Change.org calling for the retailer to grant its employees Thanksgiving Day off after she learned she was scheduled to work on Thanksgiving night. Target joins WalMart,  ToysRus and other large retailers that have begun opening their stores as early as 8pm on Thanksgiving night to accommodate the hordes of Black Friday shoppers who aren’t content to wait until the early morning next day to get their holiday shopping started. St. Clair’s petition has already garnered 365,000 signatures as of today. According to USA Today, Change.org had 91 petitions against Thanksgiving Day sales as of last Friday — the final tally of such petitions this Thanksgiving is expected to exceed last year’s total of 150, said Change.org spokeswoman Charlotte Hill.

As someone who isn’t crazy about shopping to begin with, I just don’t get the need to line up at a store at 8pm on Thanksgiving Day — unless, that is, you really despise sitting around with family. I expect to spend that time lounging away the effects of turkey-generated tryptophan, and I sympathize with the desire of my fellow Americans to be accorded that same right. That said, I question Ms. St. Clair’s decision to close her petition letter with “The world won’t end if people have wait 7 more hours to buy useless junk that will be outdated in a year anyway.” Kind of counterproductive to insult not only your employer but the customers who support it.

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If you think a request for information from the National Labor Relations Board is irrelevant and you have more important things to worry about … and you’ll just let it sit awhile … better think again.

An NLRB panel recently found that an employer had violated the National Labor Relations Act by failing to respond in a timely manner to a union’s requests for information, even though — as this alert from Barran Liebman points out — “the NLRB ultimately determined that the request for information was, as the employer argued, irrelevant … .”

In short, the board found — in its Oct. 23 ruling in the case of IronTiger Logistics Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO — that an employer has a good-faith duty under the NLRA “to respond in a reasonably timely manner to a union request for ‘presumptively relevant’ information—even when the employer believes it may have actual grounds for not providing that information” — this from another alert from Ballard Spahr.

“This decision,” it says, “expands the duty of employers by holding that they must respond to requests for what may be irrelevant information.”

For the record, and for a complete understanding of the NLRB’s reasoning behind the decision, this link takes you to the actual ruling. (Scroll to the free PDF download marked Oct. 23.) As the ruling states: “The Respondent was obligated to inform the union in a timely manner that it would not provide the information and the reasons for its refusal. An employer cannot simply ignore a union’s information request.”

According to Ballard Spahr’s rundown of the case,

[It] arose from a dispute about the apportionment of freight-delivery assignments between IronTiger and TruckMovers, two transportation firms that shared common ownership. The union represented IronTiger’s drivers but not TruckMovers’ drivers. After filing a grievance concerning the dispatch of loads to TruckMovers’ drivers, the union requested information related to all units of work dispatched to both companies’ drivers. Four and a half months passed before IronTiger even acknowledged the request, claiming generally that it was ‘harassment, burdensome and irrelevant.’ By then, the union had filed an unfair labor practice charge because IronTiger had provided no response.

In a 2-1 vote, the Board affirmed the Administrative Law Judge’s (ALJ) holding that IronTiger had violated Section 8(a)(5) of the [NLRA] by failing to respond in a timely manner to the union’s request for information. The Board began with the well-established premise that ‘a unionized employer must provide, on request, information that is relevant and necessary to the union’s performance of its duties as collective-bargaining representative.’ The Board further stated that ‘an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.’

In other words, the NLRB ruled that, because the union’s request for information involved unit employees, it was ”presumptively relevant,” entitling the AFL-CIO to a response within a reasonable time. It didn’t define a ”reasonable time,” but — says Barran Liebman — “made clear that 4.5 months exceeded this perimeter significantly.” That alert goes on:

In dissent, one board member argued that the majority’s ruling gives unions the latitude to ‘hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.’

While this opinion governs an employer’s obligation to respond only to a ‘presumptively relevant’ request, it serves as a reminder to employers to pay attention to their response times. An internal deadline of 30 days to respond is prudent, even when the employer’s response simply explains why a particular request is irrelevant.

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All eyes have been on the reports and memos emanating from the National Labor Relations Board’s general counsel concerning social-media use and policies in the workplace, but this legal alert from Ballard Spahr points to the fact that the board’s Sept. 7 decision in Costco Wholesale Corp. is its first-ever official ruling in this area.

And employers should take heed and be careful and cautious in its wake, the alert says.

In its ruling, the NLRB invalidated Costco’s electronic posting rule that prohibited employees from making statements that “damage the company … or damage any person’s reputation.” The board found the policy overly broad, concluding that it could reasonably be interpreted to “chill” employee exercise of the right to engage in protected, concerted (union) activity.

The alert says the board applied much of the legal reasoning outlined in the three prior general counsel reports to reach this first-ever social-media-policy decision. (Here is my most recent blog post outlining those earlier general counsel reports.)

Although the ruling is extensive and thorough (see my link above), Ballard Spahr’s alert claims it, ”like the reports … uses case law developed outside the social-media context in the form of more traditional workplace rules and applies those principles to electronic forms of communication.”

“Much to the chagrin of many in the business community,” the alert states, “Costco does not develop any social media-specific guidance or appear to recognize the very different potential impact on an employer’s operations of a disparaging statement made on the Internet as opposed to one made at the workplace water cooler.”

It’s final warning gets to the heart of my reason for sharing:

In light of the decision, employers can expect the board to be critical of social-media policies that contain broad prohibitions on actions or statements about workplace concerns that do not include examples of the postings the employer may permissibly target. Such examples include defamatory or sexually harassing comments, or the disclosure of an employer’s trade secrets.”

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In case you missed it, National Labor Relations Board Acting General Counsel Lafe Solomon has issued another report on social-media cases brought before his agency in an effort to further clarify when employers are in the right and when they’re in the wrong when trying to govern and manage the growing labyrinth of social media in the workplace.

The Operations Management Memo — available in PDF form within the link above — details seven more recent cases since I blogged about this last in this post. In the words of Solomon:

In August 2011 and in January 2012, I issued reports presenting case developments arising in the context of today’s social media. Employee use of social media as it relates to the workplace continues to increase, raising various concerns by employers, and in turn, resulting in employers’ drafting new and/or revising existing policies and rules to address these concerns. These policies and rules cover such topics as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies.

My previous reports touched on some of these policies and rules, and they are the sole focus of this report, which discusses seven recent cases. In the first six cases, I have concluded that at least some of the provisions in the employers’ policies and rules are overbroad and thus unlawful under the National Labor Relations Act. In the last case, I have concluded that the entire social media policy, as revised, is lawful under the Act, and I have attached this complete policy. I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area.

It’s worth reading carefully, just as the previous memos have been. There are nuances that might surprise you. For instance, in one case, the employer in question had this policy in its employee handbook:

Use technology appropriately. If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles … . Don’t release confidential guest, team member or company information … .

And here is the NLRB’s assessment:

We found this section of the handbook to be unlawful. Its instruction that employees not “release confidential guest, team member or company information” would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves–activities that are clearly protected by Section 7.

The report’s a bit long, but a must-read – if you don’t have the time to digest it now, make sure your legal counsel does.

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The fallout is still flying from Monday’s court decision striking down a recent rule by the National Labor Relations Board governing union elections.

Judge James Boasberg of the U.S. District Court for the District of Columbia invalidated the rule — which would have made it easier and quicker for unions to hold organizing elections — on the grounds that the NLRB did not have a required quorum at the time it was made.

In this Wall Street Journal account of Boasberg’s decision (subscription required), the Obama-appointed judge is quoted as saying, “ ‘According to Woody Allen, 80 percent of life is just showing up [a variation on the well-known comedian's line]. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.’ ”

In response to his decision, the NLRB announced today that it is temporarily suspending the implementation of changes to its representation process, which had taken effect April 30. Board Chairman Mark Gaston Pearce said in a statement that the NLRB is reviewing the court decision and is considering its response.

“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Meanwhile, NLRB Acting General Counsel Lafe Solomon withdrew today the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today. (To read that guidance and for a bit more history on all this, here is my Leader Board blog post from April 27.)

Even before the guidance’s withdrawal was announced, employment lawyer Fito Agraz, a shareholder with Ogletree Deakins in its Dallas office, said the judge’s decision, “combined with a decision earlier this year by a federal district court judge in South Carolina – finding the NLRB lacked the statutory authority to require employers to post notices regarding employee rights under the NLRA (here is my blog post about that) – leaves the NLRB in a position of having to table some of its proactive initiatives.” No kidding!

Not surprisingly, the National Association of Manufacturers — which refers to the NLRB rule as the “ambush-elections” rule — had this to say last night:

“Overturning the ambush-elections rule is a key victory for job creators and the 12 million men and women working in manufacturing. The NLRB has consistently overstepped its authority and attempted to enforce unnecessary and damaging rules that threaten workplace relations by creating hostile work environments where none exist. In invalidating the ambush-elections rule, the court rightly rejected one of the board’s most misguided policies. The NAM will continue to lead the way in opposing rules and regulations that stand in the way of job creation and economic growth.”

Employment attorney Michael Lotito, who just this week left Jackson Lewis to join San Francisco-based Littler, was a little less one-sided:

“The judge’s decision is a setback for the NLRB, but it is also an incentive for the board to consider the rule in its entirety and not piecemeal as it did. If it does, the legality of the president’s recess appointees will be critical to whether the NLRB has the power to act. In sum, this debate is far from over.”

I think Lotito’s last line says it all.

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In case you haven’t been following this, or forgot, the National Labor Relations Board is making new union-representation and union-election rules effective this coming Monday, April 30. Here is the Board’s guidance to regional offices about the rules, with a link to the entire memorandum. And here is an earlier explanation of the rule changes posted by the NLRB that you need to read.

As NLRB Acting General Counsel Lafe Solomon lays out in the former release, “It is my sincere hope that the new Board rules and this guideline memorandum will save time and resources for both agency staff and the parties who appear before the Board. While these guidelines present challenges with regard to their implementation, they also provide opportunities for us to fully effectuate the policies and purposes of the [National Labor Relations Act], as they relate to the representation process.”

Others don’t see it that way. As labor relations expert and former NLRB agent Jason Greer puts it in this dire warning, “Employers used to have adequate time to educate employees regarding the pros and cons of joining a labor union. Now, they find themselves at a disadvantage because they lack necessary time to respond to assertions made by labor unions.” (That release says the rules will make it easier for unions in America to take over a workforce in as little as five days.)

Meanwhile, here, in their entirety, are the concerns of the National Association of Manufacturers, as sent out Monday the 23rd, one week from “D-day”:

NLRB’s Ambush Elections Would Do Serious and Lasting Harm to Manufacturing Economy

Misguided Rule Threatens Workplace Relations

Washington, D.C., April 23, 2012 – National Association of Manufacturers (NAM) Vice President of Policy and Government Relations Aric Newhouse issued a statement in support of S.J. Res. 36, a joint resolution disapproving the National Labor Relations Board’s (NLRB) rule relating to “ambush elections” for unionization.

“On April 30, the NLRB is set to overhaul 75 years of established labor policy with new union election rules that are both unnecessary and misguided. These changes, coupled with additional NLRB proposals that threaten workplace relations, undermine manufacturers’ efforts to create jobs and grow the economy.

Moreover, ‘ambush elections’ are bad news for employees as well. If the NLRB significantly shortens the time before a union election, workers will be less likely to get all the facts essential to making such an important decision. It is critical that this rule is eliminated before it does serious and lasting harm to the American workplace.” You can read the NAM’s key vote letter here.

What say I? I guess the usual: Make sure your house is in order. Make sure you read everything you can and consult with your attorneys. Make sure your employees don’t have good and obvious reasons to organize; i.e., make sure they’re engaged, committed and as happy as can be … or at least make sure you know why they’re not.

Mark B. Goodwin, a Washington- and Richmond, Va.-based member of LeClairRyan’s labor and employment practice team, says it better in this posting, warning that non-union businesses should be training or retraining their managers and supervisors on tactics and strategies aimed at maintaining their non-union status.

“They also need to be preparing their materials, putting them in the can, if you will, so that they are ready if there is a quick election,” says Goodwin. ”With the lackluster economy, employers have been trying to keep their costs for prevention programs very low. That is understandable. But given the changes afoot today, businesses need to allocate more time and resources to staying union-free. Otherwise, they run the risk of being penny wise and pound foolish.”

And oh yes, one last suggestion from yours truly: Hang onto your hats.

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Not sure exactly what round we’re in, but without a doubt — in the U.S. Chamber of Commerce  vs. National Labor Relations Board poster-posting fracas — the Chamber can chalk up a win in this round.

In arguments heard before the U.S. District Court for the District of South Carolina, the court ruled Friday that the NLRB lacked the authority to issue its rule requiring employers to tack posters to their walls notifying employees of their rights to form unions or to join or assist in organized-labor efforts.

Here is a complete account of the South Carolina decision by Allen Smith, with the Society for Human Resource Mangement. It notes that the “court agreed with the plaintiff, the Chamber of Commerce, that the final rule violates the Administrative Procedure Act because the board lacks the authority to issue the rule under Section 6 of the [National Labor Relations Act].”

For a brief rundown of where this battle began and how it’s proceeded thus far — including the numerous deadline reschedulings by the NLRB (the last and existing one being April 30), based on responses to the rule and requests for more information — here are a few blog posts from me that might help tell the story: one from March 6, another from Jan. 9 and still another from Oct. 21 of last year.

Meanwhile, as I’ve been writing this, it appears the U.S. Court of Appeals for the D.C. Circuit has granted an injunction to delay the posting notice rule, for “an undetermined amount of time in order to adjudicate the matter.” In the release below, the National Association of Manufacturers vows to press on and continue fighting for “the appeal of the flawed ruling in the U.S. Court of Appeals.”

Injunction on NLRB’s Overreach a Positive Step for Manufacturers

NAM Will Continue Aggressive Pursuit of Appeal to Overturn Harmful Posting Notice Rule

Washington, D.C., April 17, 2012 – National Association of Manufacturers (NAM) President and CEO Jay Timmons issued the following statement after the U.S. Court of Appeals for the D.C. Circuit granted an injunction to delay the effective date of the National Labor Relations Board’s (NLRB) posting notice requirement. The posting notice rule was slated to be effective on April 30, but it has been stayed for an undetermined amount of time in order to adjudicate the matter.

“The facts in this case and the law have always been on the side of manufacturers, and we believe that granting an injunction is the appropriate course of action for the Court. The ‘posting requirement’ is an unprecedented attempt by the Board to assert power and authority it does not possess.

In the interests of the 12 million people working in manufacturing in the U.S., the NAM will aggressively pursue the appeal of the flawed ruling in the U.S. Court of Appeals to protect our manufacturing economy from regulatory overreach. The decision last week by the South Carolina District Court correctly reined in the NLRB’s egregious overreach in its authority, and today’s injunction is a positive step in overturning this harmful rule.”

I’d say, based on this latest injunction, the NLRB has just lost two rounds in a row. (The board has not returned my request for a response at this time, but I will update this if and when it does.)

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