Tag Archives: nlrb

How Will the 2016 Elections Impact Labor and Employment Policy?

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UWe’re all still recalibrating after last Tuesday’s election results. While the citizenry ponders what this means for the country and the issues dear to us, the impact on labor and employment policy is a top consideration for business-focused organizations like ours.

Harold P. Coxson of the law firm Ogletree Deakins articulated some thoughts in a blog post just after election night:

What do last night’s election results mean for labor and employment policy? In the first place, it means that Republicans will control the White House and both the House and Senate.

For another, it means that President-elect Trump will select the candidate for the current vacancy on the Supreme Court of the United States, as well as seats on the 12 federal circuit courts, only four of which remain under the control of judges appointed by Republican presidents.

It also means that President-elect Trump will fill the two vacancies on the National Labor Relations Board with two Republicans, thus switching majority control of the agency on his first days in office. The NLRB’s record of historic reversals of long-established labor law precedent in areas such as joint-employment, independent contractors, waivers of class and collective actions in arbitration agreements, “ambush” union elections and micro bargaining units will, over time, be reversed.

It means the appointment of other key policy positions throughout the federal labor agencies, including the Secretary of Labor, Solicitor of the U.S. Department of Labor, Assistant Secretary of Labor for Occupational Safety and Health, and Administrator of the Wage and Hour Division. They, in turn, will be expected to roll back or recall many of the controversial labor and employment regulations, such as the recently issued Part 541 overtime regulation, the Fair Pay and Safe Workplaces (government contractor “blacklisting”) executive order and implementing regulations, and the Labor-Management Reporting and Disclosure Act’s revised “persuader activity” regulations.

The election results also represent an opportunity for Congress to promulgate regulations and pass legislation that would represent responsible immigration policy on a path to earned legalization of undocumented workers and that would repeal and replace the Affordable Care Act (Obamacare).

As a result of last night’s elections, the Chairman of the Senate Health, Education, Labor and Pensions Committee will likely remain with Sen. Alexander (R-TN) rather than Sen. Bernie Sanders (I-VT). The House Education and the Workforce Committee will be chaired by Rep. Virginia Fox (R- NC) with Rep. Bobby Scott (D- VA) likely to remain as Ranking Democrat.

Whether the election results will bring about greater bipartisanship and less political acrimony and gridlock remains to be seen. However, with Republicans controlling the White House and Congress, those angry voters who complained that “nothing ever gets done in Washington” will expect better.

You Can’t Require Positivity

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Apparently it’s unlawful to ask employees to maintain a positive workplace. At least, that’s the National Labor Relations Board’s (NLRB) view of it.

The NLRB board threw out a provision in T-Mobile’s employee handbook that required workers “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.”

According to the ruling, forcing workers to be positive all the time infringes on their rights to organize, protected by Section 7 of the NLRA. And employers cannot prevent workers from organizing.

Just a week later, the NLRB shot down another company’s employee handbook that prohibits employees from engaging in conduct that’s offensive to other employees. According to the NLRB, the rule “is not accompanied by any other descriptive language that would help employees interpret what types of ‘offensive’ conduct the rule is targeting.”

So what can be learned? “Avoid the temptation to draft broad statements and instead draft provisions under the purview of whether an employee would reasonably construe the provision … limits their Section 7 rights,” attorneys Thomas Chibnail and John Hasman write in National Law Review.

Court Strikes Down Controversial NLRB Poster Requirement

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This issue has been kicked back and forth in the court system in the last couple of years. There finally appears to be some closure, much to the relief of America's business community. The Hill reports:

Industry groups, which quickly challenged the rule after it was issued, cheered the ruling. Jay Timmons, the president and chief executive of the National Association of Manufacturers, pledged to remain vigilant against the “rogue” NLRB.

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate,” Timmons said in a statement. “The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

Judge A. Raymond Randolph, who wrote the decision for the U.S. Court of Appeals for the District of Columbia, suggested the rule was a clear violation of free speech rights because the government “selected the message and ordered its citizens to convey that message.”

Freedom of speech, Randolph wrote, “includes both the right to speak freely and the right to refrain from speaking at all.”

The court did not rule on whether the union poster regulations were constitutional, deciding only that the NLRB exceeded its legal mandate…

Business groups argue the NLRB has favored unions under President Obama's administration and pointed to the poster rule as one of the most egregious examples.
 
“Today’s decision is a monumental victory for small-business owners across this country who have been subject to the illegal actions of a labor board that has consistently failed to act as a neutral arbiter, as the law contemplates,” Karen Harned, executive director of National Federation of Independent Business's Small Business Legal Center, said in a statement.

The advocacy group National Right to Work called the NLRB’s poster rule an “outrageous effort to transform itself into a taxpayer-funded arm of union organizing.”

This is the second major court defeat for the NLRB in recent weeks. The same appeals court ruled in January that Obama’s recess appointments to the board were illegal and therefore invalid. The independent agency is tasked with prosecuting unfair labor practices and conducting union elections.

“Stopping the NLRB’s burdensome agenda of placing itself into manufacturers’ day-to-day business operations is essential to preventing further government-inflicted damage to employee relations in the United States,” Timmons said.

NLRB Keeps Charging Ahead Blindly

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In the regulatory mess that is Washington today, the leader of the ridiculous pack just might be the National Labor Relations Board.

With union membership continuing to decline to historically low levels, the NLRB has apparently determined it will do whatever it can to help slow the erosion. It has shown no pretense of fairness in its decisions over the past four years with its rulings also often having major impacts on non-union employers.

In January, a U.S. Court of Appeals threw out three of President Obama's NLRB appointees, raising questions about the legality of recent rulings. Those same people have now been renominated by the President, so the drama continues.

The latest partisan action regards union dues expenditures. The National Association of Manufacturers (NAM) provides this summary:

A case currently before the NLRB could significantly alter the current way in which employees can exercise their Beck rights to object  to union dues’ expenditures.  According to the U.S. Supreme Court, in the Beck decision, employees can object to a portion of union dues’ expenditures if the dues are being used to fund political activity not related to collective bargaining or contract administration.  In a recent case, the United Nurses and Allied Professionals (Kent Hospital) and Jeanette Geary, however, the NLRB decided an employee, who objected to the union’s expenditures, did not deserve to have any verification showing proof how the union was spending its funds.
 
The NLRB proposes to go a step further to give the unions the upper hand by presuming the union is, indeed, spending all the dues correctly.  The effect would be the Board is telling employees they have to prove the union is spending money on lobbying and political activity with no means of independently verifying the union claims.
 
The Board’s new idea would unfairly and unnecessarily stack the deck against employees who have to pay dues, but disagree with the union politically.  Under the proposal, any lobbying activity the union would engage in on Capitol Hill, down to state and local seats of government, would go unchecked.
 

 

Double Standard Approach Not Helping Teamsters

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Having worked in Democratic politics, my take on labor in America has certainly been influenced. Without getting too deep in the woods, I think there is definitely a time and place for organization in some industries — and a functional coexistence between a union and an employer can be a healthy thing if both sides act responsibly. The unfortunate aspect of that, however, is that sometimes union tactics become so aggressive — and even hypocritical — they hinder their relevance and hardly endear anyone to their cause. Red State takes a look at a recent Teamsters strategy that even had the National Labor Relations Board irritated. As the author of the post points out, their actions seem to punish the very workers they purport to help.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkers and–again, the Obama labor board is having none of it.

In November, the regional office of the NLRB held a hearing to determine whether or not two clerical workers employed by Teamsters local 667 should be allowed to unionize by the United Steelworkers International Union.

Like the vast majority of employers, the Teamsters hired an outside lawyer.

In the NLRB’s Decision and Direction of Election [PDF], the Acting Regional Director notes that the Employer [the Teamsters] tried to claim that one of the two clerical employees the Steelworkers is trying to unionize should be ineligible because she is confidential.

If the NLRB found that the one employee was a confidential employee, she would have been excluded from being in a bargaining unit and the unit would have been inappropriate since there must be two or more.

The Acting Regional Director found that the individual was not confidential and, as a result, order an election to be held.

The case didn’t end there, however.

The Teamsters deployed their outside attorney to file a lengthy appeal (known as a Request for Review) to the NLRB in Washington.

On December 31, the union NLRB members in Washington denied the Teamsters request for review as it raised “no substantial issues warranting review.”

While the NLRB may not have found any substantial issues warranting a review, here are a couple:

Why is the Teamsters union spending thousands of dollars on hiring lawyers to fight unionization of their own workers?

Couldn’t the Teamster bosses just practiced what they preached and voluntarily recognized the Steelworkers and bargain a…you know…fair contract?

Note: Unions usually call these types of tactics “union busting”…Except, apparently, when it’s unions engaging in said tactics.

Make Sure NLRB Can’t Come Down on Your Social Media Policy

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As if you needed more to deal with from the National Labor Relations Board, be sure that your social media policy is compliant with NLRB standards. Ragan offers this useful article, stating what you should keep in mind and how the NLRB has targeted one wholesale giant.

Here’s the deal. If a work rule has the potential to reasonably chill an employee’s right to organize or bargain collectively, it’s unlawful. Employees have the right to complain publicly if they think their employers’ labor practices are unfair.

So if I complain on Linkedin that someone else is making more than I do, and it’s unfair, that’s a protected activity. If you fire me for disclosing confidential salary information, you’re going to lose in court. It’s as simple as that, and if your social media policy prohibits it, you are opening your company up to a NLRB action.

Your social media policy cannot limit free speech

You don’t have to reference the National Labor Relations Act to violate it. If your social media policy uses language that restricts employees from using social media to "damage the Company, defame any individual or damage any person’s reputation" the NLRB sees it as restricting labor’s protected rights, because that social media policy it could have a chilling effect on what is seen a free-speech issue.

On the other hand, if the restrictions are subordinated to a clause on sexual misconduct or racial harassment, it would be allowed, as employees would be able to appreciate the rule in context. It’s the overly broad restrictions (often wrapped into social media policy) that the NLRB opposes. The best social media policies will be more exacting in their language. 

Union Misdeeds, Part II: Maximum Wages Prevent Individual Awards

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Employers attempting to reward union employees for jobs well done are being prohibited from doing so by union contracts. This post asks: Why should unions have the power to turn down a raise on a worker’s behalf? Heritage’s The Foundry blog explains:

Union contracts do not just set the minimum compensation that workers can earn; they also set maximum wages.

Employers may not pay employees more than their union has negotiated. Unions typically base pay on seniority and job classifications—not individual effort or productivity. Workers cannot bargain individually for more. By law, hard-working union members get the same pay as those who slack off.

The National Labor Relations Board (NLRB) strikes down attempts to raise wages without union permission. The Brooklyn Hospital Center rewarded its best nurses with $100 gift cards. The NLRB told the hospital to cease and desist. The Register Guard Publishing Company gave a bonus commission to employees who sold advertising contracts that the company wanted to promote. The NLRB also ordered them to stop.

Union contracts should not prevent workers from earning raises. The Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act corrects this problem. It amends the National Labor Relations Act to eliminate the wage ceiling. The RAISE Act allows employers to pay deserving employees higher wages for their work without facing unfair labor practice complaints. The Senate may vote on the RAISE Act as an amendment to the farm bill.

The RAISE Act would benefit employers and employees by allowing companies to offer performance pay to reward productivity. Unsurprisingly, employees work harder when their employers reward their hard work. Research shows that the average worker’s earnings rise 6–10 percent when they can get performance pay. Companies pay these higher wages out of the higher revenue their productivity generates. Both sides win.

Forbidding employers from paying individual union members higher wages makes no sense in today’s economy. Workers want their achievements recognized, and employers want to reward productivity. The RAISE Act lifts the seniority ceiling and allows union members to get ahead. Why should unions have the power to turn down a raise on a worker’s behalf?

Effort to Slow NLRB ‘Ambush’ Fails

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OK, there wasn’t much chance the amendment was going to pass the U.S. Senate and, if somehow it did, it would have been vetoed by the White House. But it was worth the old college try, as they say, and it did shine the spotlight once again on the runaway actions of the National Labor Relations Board.

The amendment was an attempt to overturn new regulations that dramatically reduce the time between union organization efforts and the actual election in that workplace. In other words, unions will still be able to make their case for why their presence would make sense during their organizing effort, but employers will have precious little time to respond prior to a vote taking place.

Currently, worker votes typically take place 45 to 60 days after a union gathers enough signatures to warrant an election. Under the new regulations, those votes could take place within a matter of a few weeks, or even days.

Indiana senators Richard Lugar and Dan Coats supported the resolution to overturn the NLRB action. The 54-45 vote to disapprove, however, was along party lines with the exception of one vote.

Lawmaker reactions were swift, calling the rule an "ambush" on employers:

Senator Roy Blunt (R-Missouri): "By speeding up union elections and removing important safeguards that ensure a fair election process, this unnecessary rule will restrict job creators’ free speech rights and limit workers’ opportunities to hear both sides of the argument to unionize — an issue critically important to their livelihood.

"It’s unfortunate that we have to spend time undoing this administration’s reckless job-killing policies when leaders on both sides of the aisle should be working together to pass common-sense, pro-growth solutions that will boost job creation and get our economy back on track," Blunt continued.

Mike Enzi (R-Wyoming), Senate Health, Education, Labor and Pensions (HELP) Committee ranking member: “This vote was an important opportunity to send a message to the NLRB that their job is not to tip the scale in favor of one party or another, but to fairly resolve disputes and conduct secret ballot elections."

Lindsey Graham (R-South Carolina): The National Labor Relations Board seems hell bent on changing processes across the board, more for political reasons than for substantive reasons." 

Advice for Employers and Employees About Social Media Use

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Every week, it seems like there’s another story or controversy surrounding a business and its use of social media. Whether it’s an ill-advised Tweet, improperly disciplining an employee for social media use or an employee venting irresponsibly, the gray area in this arena seems to be spreading like a (computer) virus. Ragan.com offers some tips on what you should consider when it comes to social media use. Keeping these concepts in mind may keep you out of trouble in the future:

1. Training and communication about corporate social media policies are essential: Some companies have no social media policy, but most have come to recognize that existing communication policies are insufficient to protect employers and employees from the nuances and unique risks of social media. Other organizations have a policy but fail to educate employees on the risks and ramifications of their actions in social media; this is almost as dangerous as having no policy at all.

Simply put, your employees—particularly younger ones who are social natives—are ill equipped to understand the corporate, regulatory, and legal risks of their social media activities. If you are not reinforcing to them what is expected, what will get them and the company in trouble, and the consequences of mistakes, your brand is accepting needless risks, and you are not doing your employees any favors.

2. Give employees every opportunity to vent in private and appropriate channels: Nothing a company does will prevent some employees from turning to social media to voice complaints, because social media sharing is second nature to too many people. Nevertheless, that should not prevent companies from trying to prevent as many social media problems as possible.

The answer is not to prevent social media access at work—employees all carry their social networks in their pockets or purses nowadays—but instead to furnish multiple ways for employees to share feedback within the company.

This includes passive solutions, such as offering intranet forums where employees may discuss concerns, and proactive solutions, such as organized employee gatherings and groups to collect feedback. The best solution is nothing new: strong, active, open, and engaged leadership that listens to employees.

3. Do not ask for candidates’ or employees’ passwords: Asking for employees’ and candidates’ social media passwords is problematic for several reasons. First, doing so might expose you to information that the person is in a protected group, which could then open the company up to a discrimination claim. Also, your organization could suffer a blow to its reputation if a candidate or employee discloses the practice.

In hiring situations, you might lose a qualified candidate concerned that your organization demonstrates a hostile and distrustful relationship with employees. Finally, this practice requires employees to violate Facebook’s Statement of Rights and Responsibilities, which states, "You will not share your password… let anyone else access your account, or do anything else that might jeopardize the security of your account."

Some assert there are legal risks to asking employees and job candidates for their passwords. I am not a lawyer and cannot advise you on the legality of checking social media for information on candidates, but asking for passwords is a dangerous and risky policy.

If you’d like more information on this topic, the Indiana Chamber offers the Indiana Employer’s Guide to Monitoring Electronic Technology in the Workplace – 3rd Edition (authored by attorneys from Ogletree Deakins).

NLRB April 30 Posting Requirement Blocked for Now

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The National Labor Relations Board’s posting requirement that was set to take effect on April 30 has been postponed… AGAIN. The U.S. Court of Appeals for the District of Columbia Circuit Tuesday issued an injunction prohibiting enforcement of the rule until an appeal of a lower court’s decision upholding the rule (but voiding some penalties) has been decided. Oral arguments in the case are currently scheduled for September.
 
Tuesday’s ruling follows last Friday’s decision by a federal court in South Carolina that struck down the posting requirement, leading to confusion over what is now required. Implementation of the posting requirement is now on hold until further notice.