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NLRB Ruling Alters Workplace Landscape

Posted by Michael Rudman on Aug 28, 2015 1:55:00 PM

The National Labor Relations Board (NLRB) has fundamentally altered the workplace landscape for companies that hire contractors to staff their facilities.

ManufacturingWorkerSmallThe NLRB ruled in a 3-to-2 decision yesterday that a company that hires a contractor to staff its facilities may be considered a joint employer of the workers at that facility, even if the company does not actively supervise them. A union representing those workers would therefore be legally entitled to bargain with the parent company, not just the contractor, under federal labor law.

The ruling, which is likely to be challenged in court, could also expose employers to regulatory and legal liability based upon the actions of contractors.

“The ruling is bad news for employers in many industries who use third-party labor providers. Companies use labor contractors to staff up during busy times or to permit themselves to concentrate on their core business, but the NLRB ruling may change that,” said Gary MacDonald, Executive Vice President of the Employers Resource Group at Associated Industries of Massachusetts.  

NLRB Chairman Mark Gaston Pearce was joined by fellow Democrat-appointed members Kent Y. Hirozawa and Lauren McFerran in the majority opinion; Republican members Philip A. Miscimarra and Harry I. Johnson III dissented.  

"The majority’s decision will have the effect of disturbing legitimate business relationships and cause businesses to become embroiled in the labor disputes of their commercial partners," said Rob Fisher, a labor lawyer for the Boston law firm Foley Hoag LLP and chair of the AIM Human Resources Committee.

"What is disingenuous about the decision is the majority’s repeated insistence that it merely restated the existing joint employer test.  As the dissent correctly points out, the majority’s approach removes all limits on the kind or degree of control necessary for joint employer status.  This a major shift in federal labor law."

The NLRB applied what it called long-established principles to find that two or more entities are joint employers of a single work force if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the NLRB said it will - among other factors - consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. 

The consequences of the ruling could be far reaching. Here are a few examples:

  • A contractor that provides laborers to a distribution center is charged by the NLRB with an unfair labor practice. Any judgement could be entered against the distribution center operator as a joint employer.  That judgement could in very rare instrances include a so-called Giselle ruling against the third party requiring them to recognize a union in lieu of a vote.  The distribution center operator could be compelled to continue to use the third party employees even though they now may be no longer cost effective.
  • A union organizes a single unit of a franchised fast-food operator.  The parent company could be compelled to negotiate with the union and, by extension, provide financial support if the economic circumstances of the franchisee prohibit funding the new contract. If the corporate parent were to agree to pay higher wages or provide better benefits, it would apply only to that particular restaurant, in the same way that concessions granted to employees in a single unionized portion of a national company that is not franchised apply only to that portion. At the same time, however, the concessions may give unionized employees at other locations practical leverage in their negotiations with the company.

“This change will subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have, to potential joint liability for unfair labor practices and breaches of collective-bargaining agreements, and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts, and picketing,” Miscimarra  and Johnson wrote in their dissent.

Employers believe they should not be required to bargain with employees of their contractors or franchisees, and should not be held liable for labor-law violations involving workers over whom they exert only indirect supervision. The NLRB rejected that logic.

“It is not the goal of joint-employer law to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers, while maintaining control of the workplace,” the labor board majority wrote.

Fisher at Foley Hoag warns that businesses with existing contracts for the supply of workers or subcontracting arrangements should not assume that the decision is stayed pending the outcome of any court challenges.

"The NRLB’s position is usually the opposite, so we can assume that unions will now be asserting the new joint employer test and that the NLRB will be applying it.  I certainly encourage businesses to review their contractual relationships and to identify potential areas of risk.  However, the Board’s apparent emphasis on indirect control as being sufficient to establish joint employer status means that normal contractual demands relating to the timing, manner and quality of performance by a vendor may be enough," he said.     

Topics: Unions, National Labor Relations Board, NLRB

Twin Labor Board Decisions Change Workplace Landscape

Posted by Michael Rudman on Dec 15, 2014 8:24:02 AM

The National Labor Relations Board dramatically shifted the workplace landscape last week with two landmark decisions – one accelerating the timing of union representation elections and a second permitting employees to use company email accounts on their own time to discuss organizing.

organizedlaborgoodsmallThe rule on expedited union elections had been sought for years by organized labor to limit the ability of companies to respond to organizing efforts. The measure eliminates a previously-required 25-day period between the time an election is ordered and the election itself and curtails employers’ ability to appeal eligibility and other issues prior to a union representation election.

It will also require employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election. The rule, which takes effect on April 14, allows electronic filing and transmission of union election petitions for the first time.

The NLRB first proposed the change in 2011, but the U.S. Court of Appeals for the D.C. Circuit struck it down over a lack of quorum in a case in which Associated Industries of Massachusetts (AIM) participated. The board re-introduced the rule in February.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up.

“The bottom line for employers who are non-union and wish to remain so is the dramatic reduction in the time available to educate employees, express the company’s point of view on union representation and combat union propaganda during an election campaign,” said Tom Jones, Vice President at AIM.

The decision on accelerated elections came two days after the NLRB ruled that “employee use of email for statutorily protected communications on nonworking time must be permitted by employers who have chosen to give employees access to their email systems.”

Statutorily protected communications generally refer to activities in which employees engage during union organizing campaigns, union elections or in the exercise of their rights to address work grievances. The communications are protected in both union, and non-union, environments.

The NLRB was quick to clarify who is covered by its decision:

  1. The ruling applies only to employees who have already been granted access to the employer’s email system.
  2. An employer may justify a total ban on non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
  3. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls overs its email system to the extent such controls are necessary to maintain production and discipline.
  4. The ruling does not address email access by nonemployees, nor any other type of electronic communications.

Both NLRB decisions were made with three-to-two margins with the Democratic appointees voting in favor and the Republican appointees voting against.

Jones says the expedited election decisions makes it incumbent upon employers to take a preventative, rather than reactive approach to labor relations. The campaign to win votes must be an ongoing effort – even in the absence of a formal campaign or even a remote threat of union activity. 

There are several steps employers can take right now:

  • Assess your organization’s vulnerability to a union;
  • Train your supervisors on the ‘real’ issues that bring in a union – it’s almost always about respect, consistency and fair treatment;
  • Communicate with your federal elected representatives;
  • Get professional help in assessing and preparing for the possibility of a union drive – waiting until the campaign starts will be too late

Associated Industries of Massachusetts has experts who can help your organization assess, evaluate and prepare for the possibility of a union campaign.  Contact our Employer Hotline at (800) 470-6277.

Topics: Organized Labor, National Labor Relations Board, Human Resources

Micro Unions Present Challenges to Employers

Posted by Michael Rudman on Jul 29, 2014 6:54:06 AM

What would happen if workers in just one department of your company want to join a union? No big deal you say – as long as those workers do not constitute a majority of employees throughout the company, they would be unable to muster enough support to force a union election.

picket.smallBut a recent National Labor Relations Board (NLRB) decision involving retail workers in Massachusetts underscores the fact that small groups of employees now have the ability to carve out “micro-unions” within a larger work force.

The NLRB recently allowed a union election to proceed within the Macy’s store located in Saugus, even though the union seeks to represent only employees who work at the cosmetics and fragrances counter - 41 of the store’s 120 workers. The federal agency relied for its decision on a 2011 ruling involving Specialty Healthcare, a rehabilitation center, where a group of nursing assistants wanted to organize.

Macy's said it was "disappointed" with the board's decision.

"Organizing a selected portion of a store's selling associates into multiple collective bargaining units is impractical and an impediment to providing a consistent level of customer service," Macy's said in a statement.

Reuters reports that the company is considering challenging the NLRB ruling in court.

The Specialty Health Care decision was initially supposed to affect only health-care facilities, but the Macy’s decision leaves little doubt that the federal government will permit micro-unions across virtually all industries. Employers face the possibility that a small percentage of their employees, within loosely-defined departmental or functional boundaries, can effectively pursue union representation.

The prospect of the NLRB subdividing a work force into mini communities of interest is a disaster for employers. Organizing smaller groups is easier, quicker and cheaper for unions than persuading full workplaces to sign up. At the same time, conflicting work rules, pay and benefits in adjacent departments make it incredibly difficult for the employer to manage.

My many decades in labor relations have taught me that employers must remain aware of the issues that can cause employees to look elsewhere for the respect, appreciation, fairness, security, wages and benefits that drive the union’s appeal. Analyze your vulnerability, create strategies to make unions unnecessary and train your team to recognize the signs of union intervention.

Topics: Organized Labor, National Labor Relations Board

Senate Measure Would Limit Employer View of Social Media

Posted by Brad MacDougall on May 23, 2014 2:51:00 PM

The Massachusetts Senate yesterday joined a growing list of government regulators wading into the issue of employer access to the social media accounts of job applicants and employees. 

Social MediaAn amendment to the Fiscal Year 2015 budget passed by the Senate would prohibit employers from collecting the social media passwords of job applicants or current employees. The measure would exempt from the ban companies required by federal law and the Securities and Exchange Commission to monitor the social media activity of certain staff members.

The action comes in the wake of national studies showing that between 10 percent and one-third of U.S. employers searched social networks such as Facebook, Twitter and LinkedIn for information about job applicants. It also comes as the National Labor Relations Board issues sometimes contradictory guidance about the ability of employers to discipline employees who post derogatory information on social media.

Reaction among Massachusetts employers to the Senate bill has so far been muted. Tom Jones, Vice President of the Employers Resource Group at Associated Industries of Massachusetts, says many of the AIM-member employers with whom he speaks rely on general Internet searches that may link to an applicant's social media accounts instead of direct reviews of social media.

“At the same time, most employers have not yet had the opportunity to review the Senate amendment. We’ll see what the reaction is moving forward,” Jones said.

The proposal would make it unlawful for an employer to do any of the following:

  • require, request, suggest, or cause an employee or applicant to disclose a user name, password or any other means for access, or provide access through a user name or password, to a personal social media account or service;
  • compel an employee or applicant, as a condition of employment or consideration for employment, to add anyone, including the employer or their agent, to the employee or applicant’s list of contacts associated with a personal social media account or service; or
  • take or threaten any adverse action against an employee or applicant for refusing to disclose any information specified in clause (a) of this section or for refusing to add the employer to a list of contacts associated with a social media account or service, as specified in clause (b) of this section.

Employers who violated the law would be subject to criminal prosecution through the Office of the Attorney General.  Employees bringing civil actions under the measure would be eligible for treble damages for any lost wages and benefits. Prospective or active students claiming to be harmed would have the option of a private right of action through civil court.

Companies that employ social-media reviews argue that they are important elements of pre-employment due diligence. These companies use social media to search for unprofessional behavior, to confirm professional and academic claims on a resume, or to uncover evidence of risky or dangerous activity.

But Jones warns that the practice may leave employers open to accusations of violating the Massachusetts privacy law or using a candidate’s protected class membership as a basis not to hire. Even if people don't explicitly discuss sensitive information online or post embarrassing photos, Jones says, workers might accuse an employer of being influenced by telltale clues of a protected status - quotes from a religious text or mention of a baby registry that may suggest a woman is pregnant or has young children.

Some employers also review the on-line activities of current employees for evidence of company policy violations such as posting confidential information, posting during work hours, boasting of inappropriate behavior at work such as drinking or romantic activities, or information regarding union sympathies.

The ability of employers to discipline workers who post disparaging information about the company, its customers or managers has so far been limited by the labor-friendly National Labor Relations Board. The NLRB has generally ruled that the National Labor Relations Act treats social media as a 'protected, concerted' activity in which employees may legally engage as long as the sppech concerns terms and conditions of employment.

The NLRB’s position has sometimes been difficult to follow. In a May 2012 guidance memorandum, Acting General Counsel Solomon concluded that when employees are posting personal opinions on the Internet, they should add a disclaimer stating something to the effect of “the postings on this site are my own and do not necessarily reflect the view of [Employer].” In April, however, in The Kroger Co. of Michigan, an NLRB administrative law judge found that the rule requiring a disclaimer unduly burdened legitimate Section 7 communications.

The state Senate bill on login credentials now goes to the House-Senate conference committee hammering out a final budget agreement. Observers say the provision is unlikely to survive the committee deliberations.

Please contact Brad MacDougall, Vice President of Government Affairs, bmacdougall@aimnet.org, if you have comments or questions on the Senate budget amendment.

Topics: Employment Law, National Labor Relations Board, Human Resources, Social Media

NLRB Re-Introduces 'Quickie' Union Election Rule

Posted by Mike Rudman on Feb 10, 2014 8:42:00 AM

The National Labor Relations Board last week resumed its effort to permit accelerated elections long sought by organized labor to limit the ability of employers to respond to union organizing efforts.

NLRBThe NLRB issued a notice of proposed rulemaking Tuesday on an initiative that would curtail employers’ ability to appeal eligibility and other issues prior to a union representation election. A federal court invalidated an earlier NLRB attempt to issue a “quickie election” rule because the agency lacked a quorum when it approved the regulation.

AIM was among several business groups nationally to have brought that court action.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up. Short elections provide insufficient time for a company to combat potential misrepresentations that the union has been able to make without the opportunity for an opposing view.

Among other changes, the proposed rule:

  • Eliminates the current requirement that a union representation vote cannot be held sooner than 25 days after the NLRB’s regional director issues a Direction of Election. 
  • Requires that unions be given employee email addresses and telephone numbers prior to the election. Currently, the union receives a list of eligible voters from the employer prior to the election. The list contains employees' full names and home addresses, but not their email addresses and telephone numbers.

Analysts believe the rule could shrink the average time from union petition to election from the current 38 days to as few as 10 days. The change comes despite the fact that the NLRB has met or exceeded its own goals during the past decade for the time it takes to conduct an election.

Unions have been successful in approximately two-thirds of representation elections during the past two years and that success rate is certain to improve with a compressed election schedule. Unions are also likely to target small employers that were previously uneconomical to organize.

Associated Industries of Massachusetts encourages employers to express their opposition to the proposed rule changes in one of several ways:

  1. Contact your federal representatives and to express your displeasure.
  2. Send your comments on the proposed rulemaking to http://www.regulations.gov. (Search for the proposed rule using Docket ID No. NLRB-2011-0002 and follow the instructions for comments.)
  3. Send your comments to Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW, Washington, DC 20570.

AIM also urges employers to address the conditions that invite unions into your company and focus on making a union unnecessary.

This means:

  • Training supervisors, managers and senior teams to recognize and fix problems before they become prominent features of your company’s culture.
  • Creating a positive work environment that responds to issues and doesn’t ignore them.
  • Dealing with those problem supervisors and managers who undercut your culture.
  • Training your management team at all levels to recognize the behavioral and group changes that occur during a union drive while it is still underground.
  • Fixing what you already know ails your organization.
  • Training you management team, from top to bottom, in what they can and cannot say when discussing unions and employees right to organize.

AIM can provide your organization guidance and training in each of these issues.  Contact Gary MacDonald at 617.488.8348, gmacdonald@aimnet.org for details.

Topics: Employment Law, National Labor Relations Board, Labor

Top 10 Massachusetts Business Stories of 2013

Posted by Christopher Geehern on Dec 17, 2013 6:04:00 AM

The year 2013 remains indelibly defined by images of smoke and human suffering from two bombs that exploded near the finish line of the Boston Marathon in April. It was a tragedy that in an all too familiar manner underscored both the vulnerability of the American way of life in the 21st century and the moving resiliency of people determined to preserve that way of life in the face of persistent threat.

BostonStrongThe marathon bombings symbolized a year in which external events outside the control of anyone in the commonwealth drove the Massachusetts business economy. From government shutdowns in Washington to the problematic adoption of federal health reform to a lingering recession in Europe, Massachusetts employers spent most of the year trying to manage things that were being done to them rather than charting their own paths.

The Top 10 stories to affect Massachusetts employers in 2013:

  1. Twin bombings at the Boston Marathon disrupt Back Bay businesses; generate broad involvement by employers in recovery.

    The bombings near the finish line of the Boston Marathon on Boylston Street not only killed three people and injured 176, but also forced dozens of businesses to close as a wide swath of the Back Bay became a crime scene. Thousands of Massachusetts businesses closed on April 19 as police hunted for one of the suspects. The business community responded by donating millions of dollars to The One Fund Boston, with AIM member John Hancock Financial Services leading the way with an initial donation of $1 million.

  2. Firestorm of criticism prompts the Massachusetts Legislature and Governor Deval Patrick to repeal a controversial tax on computer software and services.

    A transportation funding bill passed by the Legislature in July that included a $160 million extension of the sales tax to computer software and services generated loud and immediate blowback from one of the fastest growing sectors of the state economy. Software entrepreneurs unaccustomed to political activism used social media to flood the Statehouse with texts, emails and calls of protest. State leaders relented in September and made the repeal retroactive to the July 31 effective date of the tax.

  3. Obama Administration refuses a request by Governor Patrick for a limited waiver from provisions of federal health reform that threaten to raise premiums for small companies.

    The 2006 Massachusetts Health Care Reform Law may have served as a model for the federal Affordable Care Act, but one major difference between the two laws could raise premiums for some small employers by up to 57 percent. Federal reform limits to four the rating factors used to calculate small group health insurance premiums, while current Massachusetts law allows for additional consideration of factors such as industry, participation rate, group size, intermediary discount and group purchasing cooperatives. The Legislature compelled Governor Patrick to seek a waiver from the rating-factor provisions, but Secretary of Health and Human Services Kathleen Sebelius turned down the request on September 26.

  4. State economy gives mixed signals.

    The recession in Europe, uncertainty over the nation’s budget outlook and a sequester that fell heavily on key industries such as defense and medical research boosted unemployment in Massachusetts from 6.4 percent in March to 7.2 percent in October. On the positive side, third-quarter economic output increased 3.5 percent on the strength of a recovering housing market and consumer spending. Employer confidence, measured by the AIM Business Confidence Index, meandered in an up-and-down pattern around the neutral 50 mark as companies confident about their own prospects remained skittish about the future in the face of serial government shutdowns, default scares and a seemingly intractable partisan fiscal standoff.

  5. Federal budget impasse causes shutdown of the federal government and threatens default on the nation’s debt.

    The United States government shut down and curtailed most routine operations October 1-16 after Congress deadlocked over a continuing budget resolution. At the center of the disagreement was an attempt by House Republicans to remove funding for federal health care reform. A concurrent deadlock over raising the debt ceiling, similar to one that lowered the country’s credit rating in 2011, raised the specter of a default that analysts believed would throw the nation back into recession. Congress eventually approved an agreement forged by Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell to fund the government through January 15 at sequestration levels and suspend the debt limit until February 7.

  6. Legislature and the governor freeze unemployment insurance rates for the fifth consecutive year but again fail to enact structural reform to the system.

    Governor Patrick signed a supplemental budget on February 19 that rolled back a $500 million Unemployment Insurance rate increase on employers that took effect January 1. The measure freezing UI contributions at the current Schedule E still left the fund used to pay benefits to unemployed people with a balance of $600 million at the end of the year. AIM was encouraged at by comments from House Speaker Robert DeLeo that he may link structural changes to the UI system with an anticipated effort to increase the state minimum wage or other issues.

  7. Federal Appeals Court vacates a National Labor Relations Board rule requiring employers to post a notice informing employees of their right to join a union.

    The May 7 ruling made it unlikely that employers will have to post notices in the workplace informing employees of their right to join a union. The United States Court of Appeals for the District of Columbia Circuit vacated the controversial National Labor Relations Board (NLRB) rule requiring six million private sector employers in the United States to post a notice of employee labor rights. It marked the latest skirmish between business and an activist NLRB determined to tilt the labor-relations playing field toward organized labor.

  8. Former Governor Argeo Paul Cellucci dies after a long battle with Lou Gehrig’s Disease.

    Former Massachusetts Governor and U.S. Ambassador to Canada Argeo Paul Cellucci died in June. The commonwealth’s chief executive from 1997 to 2001, Cellucci strengthened the foundations of the Massachusetts economy at a critical time. He worked with Governor William Weld to secure scores of tax cuts, and then keep a steady hand overseeing the successful implementation of key reforms to the workers compensation and public education systems. He spent his later years working with researchers at the University of Massachusetts Medical School to find a cure for ALS.

  9. Massachusetts employers struggle with a critical shortage of skilled people in high-value jobs.

    A tepid economy did nothing to relieve a pervasive, long-term shortage of skilled workers in areas ranging from information technology to manufacturing to restaurants. Business groups, including AIM, responded by laying the groundwork for more education reform and the commonwealth invested heavily in workforce education, but some growing employers were left to offer five-figure referral bonuses for new workers. Manufacturers face the task of filling 100,000 job vacancies in the next decade.

  10. Shift of Manufacturing to the United States accelerates.

    The number of American manufacturing companies looking to shift production from China to the United States has doubled since 2012, according to a study released in September by The Boston Consulting Group. The study found that 54 percent of U.S.-based manufacturing executives at companies with sales greater than $1 billion are planning to “re-shore” production, or are considering it, up from 37 percent who responded to a similar survey in February 2012

Topics: Massachusetts economy, Massachusetts employers, National Labor Relations Board, Taxes

Appeals Court Vacates NLRB Union Posting Rule

Posted by Tom Jones on May 9, 2013 10:46:00 AM

It appears increasingly likely that employers will not have to post notices in the workplace informing employees of their right to join a union.

NLRB Posting RuleThe United States Court of Appeals for the District of Columbia Circuit on Tuesday vacated the controversial National Labor Relations Board (NLRB) rule requiring six million private sector employers in the United States to post a notice of employee labor rights. The decision, rendered in a case brought by the National Association of Manufacturers (NAM), comes 13 months after the courts temporarily blocked implementation of the rule pending resolution of legal questions.

The three-judge appeals court panel ruled that the posting requirement compels employers to speak about employees' labor law rights in violation of a provision of the National Labor Relations Act (NLRA) that protects employers' rights to free speech about union issues. 

The court writes that the NLRB rule violates the NLRA “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.”

AIM and other employer groups have opposed the rule as an unfair government effort to promote union organizing. The regulation is part of an ongoing effort by an activist NLRB to tilt the labor-relations playing field toward organized labor during the past three years.

“The courts have stated unequivocally that the NLRB overstepped its authority with the union-rights posting requirement,” said Michael Rudman, a labor-relations expert for AIM.

The union notice rule requires employers to post an 11-by-17-inch notice in a prominent location explaining the right of workers to join a union and bargain collectively to improve wages and working conditions. The posters also explain that workers have a right not to join a union and that it is illegal for union officials to coerce employees into unionizing.

 “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,” said Jay Timmons, President of NAM.

It is unclear whether the NLRB will appeal the decision to the U.S. Supreme Court.

The decision marked the latest in a series of judicial setbacks for the government agency charged with enforcing laws governing labor-management relations.

The Court of Appeals ruled in January that President Barack Obama did not have the power to make recess appointments to the National Labor Relations Board in January 2012. NLRB is appealing that decision, which could invalidate rulings, determinations and rulemaking by the NLRB over the past year.

Topics: Issues, Employment Law, National Labor Relations Board, Human Resources

Court Ruling Throws NLRB Decisions into Question

Posted by Mike Rudman on Jan 25, 2013 2:33:00 PM

The United States Court of Appeals for the Washington DC Circuit ruled unanimously today that President Barack Obama did not have the power to make recess appointments to the National Labor Relations Board in January 2012.

National Labor Relations BoardThe ruling in Canning vs. NLRB could invalidate rulings, determinations and rulemaking by the NLRB over the past year because the US Supreme Court has already ruled that a three-member Board must be sitting for such actions to be valid.  As a result of today’s ruling, only one member of the NLRB, Chairman Mark Pearce, was validly appointed and thus the Board lacks a required quorum for action.

The government is likely to appeal the matter to the US Supreme Court.  A similar Supreme Court challenge during the administration of President George W. Bush resulted in an affirmation that the president did in fact, possess recess appointment powers.

While this ruling has the potential to undue many of the NLRB actions and precedents set during the past year, it does not mean employers should be less vigilant or alert to union activity in their workplace.  Unions still represent a powerful force by presenting themselves as an alternative to inattentive or poor management, and exert considerable political influence. 

Business owners and managers must ensure that the conditions that invite union representation do not exist within their enterprises.  These conditions include a lack of respect, supervisory mistreatment, inconsistency in the application of policies, favoritism, threats to job security and changes within the workplace that cause employees to consider the need for either ‘protection’ or someone to speak for them.

Topics: Issues, Employment Law, National Labor Relations Board

Court Halts NLRB 'Quickie' Union Election Rules - For Now

Posted by Mike Rudman on May 16, 2012 9:54:00 AM

A United States District Court issued a judgment Monday invalidating the recent National Labor Relations Board (NLRB) regulations promoting “quickie" union representation elections.  Ruling in favor of the United States Chamber of Commerce and the Coalition for a Democratic Workplace (of which AIM is a member), the court found that the NLRB did not have the required quorum to pass the rule.

NLRBThe Court did not rule on the merits of the rule changes or the NLRB’s ability to promulgate such changes.  It is likely that an appropriate quorum can be established with the NLRB’s current membership and that the new rules will be implemented once again.  Given the current pro-union NLRB majority, it is expected that action will be taken immediately to reestablish these so-called “Ambush Elections” rules.

AIM urges employers to take advantage of this window of opportunity to address the conditions that invite unions into your company and focus on making a union unnecessary.

This means:

  • Training supervisors, managers and senior teams to recognize and fix problems before they become prominent features of your company’s culture.
  • Creating a positive work environment that responds to issues and doesn’t ignore them.
  • Dealing with those problem supervisors and managers who undercut your culture.
  • Training your management team at all levels to recognize the behavioral and group changes that occur during a union drive while it is still underground.
  • Fixing what you already know ails your organization.
  • Training you management team, from top to bottom, in what they can and cannot say when discussing unions and employees right to organize.

AIM can provide your organization guidance and training in each of these issues.  Contact Gary MacDonald at 617.488.8348, gmacdonald@aimnet.org for details.

Topics: Issues, Employment Law, National Labor Relations Board

Courts Put Hold on NLRB Mandate to Post Union Notice

Posted by Tom Jones on Apr 18, 2012 9:15:00 AM

Employers can set aside – at least for now - that National Labor Relations Board workplace notice informing employees of their right to join a union.

Union NoticeA federal appeals court on Tuesday temporarily blocked the NLRB from requiring more than 6 million U.S. businesses to put up the labor-rights poster on April 30. The U.S. Court of Appeals for the District of Columbia said the rule cannot be enforced until legal questions are resolved.

The temporary injunction followed a federal judge’s ruling in South Carolina last week that the labor board exceeded congressional authority when it approved the poster requirement in 2011

AIM and other employer groups have opposed the rule as an unfair government effort to promote union organizing. The regulation is part of an ongoing effort by the NLRB to tilt the labor-relations playing field toward organized labor during the past three years.

“The South Carolina and Washington D.C. rulings provide hope that that the courts believe the NLRB overstepped its authority with the union-rights posting requirement,” said Michael Rudman, a labor-relations expert for AIM.

A separate new NLRB rule limiting the ability of employers to appeal eligibility issues prior to a union representation election was not included in Tuesday's court action and is still scheduled to take effect on April 30. Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up.

The union-rights posting notice rule requires employers to post an 11-by-17-inch notice in a prominent location explaining the right of workers to join a union and bargain collectively to improve wages and working conditions. The posters also explain that workers have a right not to join a union and that it is illegal for union officials to coerce employees into unionizing.

NLRB chairman Mark Pearce said the board would instruct its regional offices not to apply the poster rule while litigation is pending. He said the board would appeal the adverse South Carolina ruling, as well as the part of the Washington, D.C., ruling that restricts how the rule can be enforced.

Meanwhile, Senate Republicans said Tuesday they would join a separate lawsuit challenging President Barack Obama’s recess appointments to the NLRB. The lawsuit, pending in Washington state, argues that the president illegally bypassed the Senate to appoint three members to the board in January.

Topics: Employment Law, National Labor Relations Board, Human Resources

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