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Potential Legislative Involvement in Lockout Sets Dangerous Precedent

Posted by John Regan on Nov 2, 2018 8:34:04 AM

Proposed legislation that would penalize National Grid during the ongoing lockout of gas workers represents a troubling – and perhaps unconstitutional – foray by Beacon Hill into a private-sector labor dispute.

State House 2015The bill, called An Act relative to the employment of certain workers by National Grid, would prohibit National Grid from:

  • receiving public funds for the upgrade, repair, installation or maintenance of its gas distribution system
  • applying for funds to assist in paying the costs of gate box maintenance and improvements, or
  • receiving from the Massachusetts Department of Public Utilities any increase in its rates for consumer gas or electric distribution.

The bill would also require National Grid to continue to provide health insurance under its expired collective bargaining agreements with Steelworkers Locals 12003 and 12012-04.

The House of Representatives has admitted the bill, but no hearing has been scheduled. The measure is unlikely to pass before January since the Legislature remains in informal session when a single legislator may stop a bill.

National Grid, which provides natural-gas service to 116 Massachusetts communities, has 85 communities impacted by a lockout of 1,250 workers after the Steelworkers rejected a five-year contract offer that will boost the current average employee salary, including overtime, from $120,000 a year to $137,000.

The offer also includes a 10 percent increase in the pension plan for current employees, while new employees would be assigned to a completely company-funded defined contribution plan with a 3 to 9 percent company match, in addition to a regular 401 (k) with a company match. The company’s health insurance proposal would also introduce modest deductibles and coinsurance, which the unions currently do not pay.

Intervention in a private labor dispute is beyond the scope of the Massachusetts Legislature and sets a dangerous precedent for the ability of government to takes sides in negotiations between companies and their workers. If lawmakers interject themselves in the National Grid lockout, what would prevent them from also becoming involved in disputes involving manufacturing, service or technology companies across the commonwealth?

The bill would tread upon and regulate a sphere of private sector collective bargaining that is intended to be unregulated by the U.S. Congress.  As such, the legislation is pre-empted by the National Labor Relations Act.  Strikes and lockouts are both federally protected actions.

The federal courts have a long history of pre-empting local and state efforts to shape labor disputes. In 1986, for example, the U.S. Supreme Court pre-empted the Los Angeles City Council’s bid to condition renewal of a taxi license on the resolution of a labor dispute.

The proposal could also violate the United States Constitution because, in targeting National Grid and only National Grid, it constitutes a Bill of Attainder proscribed by Article 1 of the Constitution. 

No one likes labor disputes and AIM joins others in hoping that National Grid and its unions can find common ground soon. That hope should not, however, lead elected officials down the road of political expediency.

Topics: Organized Labor, Massachusetts Legislature, Energy

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

NLRB Again Postpones Requirement to Post Union Rights Notice

Posted by Tom Jones on Dec 27, 2011 9:19:00 AM

The National Labor Relations Board (NLRB) has postponed for a second time the date by which employers must post a workplace notice informing employees of their right to join a union.

Union Posting RuleThe NLRB announced last week that it has changed the effective date of its employee rights notice-posting rule from January 31 to April 30, 2012. The new date was established at the request of a federal court in Washington, D.C. that is hearing a legal challenge to the posting requirement from the National Association of Manufacturers (NAM).

“The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule,” the board said in a press release posted on its Web site.

The NLRB previously postponed implementation of the posting rule from November 14 to the January 31 date to allow for what it called “enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

The union notification rule will require private-sector employers whose workplaces fall under the National Labor Relations Act to post an employee rights notice where other workplace notices are typically posted, including Internet or Intranet sites.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Associated Industries of Massachusetts has opposed the notification rule. The association will send out more information on the poster status as it develops.

 

Topics: Employment Law, Organized Labor, National Labor Relations Board

NLRB Approves Limits on Employer Appeals During Union Elections

Posted by Mike Rudman on Nov 30, 2011 3:52:00 PM

The National Labor Relations Board voted 2-to-1 minutes ago to adopt regulations that limit the ability of employers to appeal eligibility and other issues prior to a union representation election.

NLRBThe landmark vote came after Republican NLRB Commissioner Brian E. Hayes decided against resigning from the board in a move that would have deprived the two Democratic NLRB commissioners of the three members needed to issue regulations. Hayes said he decided to remain on the NLRB because “it is not in my nature to be obstructionist.”

He nevertheless blasted what he called “a fundamentally flawed rule that is the product of a fundamentally flawed process.” Hayes said the rule would deprive both employers and workers of the ability to express opinions about collective bargaining prior to a vote on union representation.

NLRB Chair Mark G. Pearce and Craig Becker voted in favor of the regulations, which they characterized as an attempt streamline the union election process by eliminating piecemeal and appeals and making the oversight process more efficient. The vote means that a final rule will now be drafted and posted to the Federal Register.

“This has been the most open and participatory process in the 76 years of the board’s existence,” Pearce said. He noted that the NLRB received more than 65,000 comments on the proposed rules.
The proposal:

  • Allows NLRB hearing officers the authority to limit evidence introduced at a hearing to information relevant to whether a question of representation exists;
  • Eliminates the right of employers to seek NLRB review of a regional director’s pre-election rulings and consolidating all such requests for review after the election takes place;
  • Toughens the requirements for employers to seek special permission to appeal to the NLRB; and
  • Makes discretionary NLRB review of a regional director’s or judge’s disposition of post election disputes.

Hayes pleaded with Pearce and Becker to reconsider their positions, saying that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision. Hayes warned that pushing through the rule changes before Becker’s recess appointment expires at the end of the year could come back to haunt the commission when the political tables are turned.

Quoting Thomas More in A Man for All Seasons, Hayes said, “I give the devil the benefit of law for my own sake.”

AIM opposes the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

Topics: Employment Law, Organized Labor, National Labor Relations Board, Issues

NLRB Boycott Threat Leaves New Union Election Rules Up in the Air

Posted by Mike Rudman on Nov 30, 2011 9:50:00 AM

Proposed regulations that would shorten the time employers have to respond to union organizing campaigns face an unprecedented showdown vote today amid reports that the lone Republican on the National Labor Relations Board (NLRB) may boycott the session.

NLRBThe NLRB has scheduled a vote for this afternoon at 2:30 p.m. on a provision of the regulations that would deprive employers of the ability to seek court review of issues prior to a union election. NLRB Chairman Mark G. Pearce said yesterday that the board will not consider other parts of the rule that would speed up the elections and share workers’ contact information with unions.

The question is whether the NLRB will have enough commissioners present to vote on a binding decision.

Republican commissioner Brian E. Hayes threatened last week to skip today’s board meeting to deprive the two Democratic NLRB commissioners of the three members the U.S. Supreme Court has said the NLRB needs to issue regulations.

Hayes complained in a letter to Congress last week that the two Democrats on the board had not told him exactly what changes they planned to make and had not adequately shared with him the 65,000 public comments the board received.  Hayes said that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision.

“They cannot, in my view, simply be cast aside in pursuit of a singular policy agenda without doing irreparable harm to the board’s legitimacy,” he wrote.

Pearce and fellow Democratic commissioner Craig Becker are pushing for a vote on the accelerated elections proposal before Becker’s recess appointment expires at the end of the year.

Even though the Chairman’s public pronouncement does not include a provision for “quickie” elections, AIM  continues to oppose the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

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. Ten-day elections are insufficient time for a company to combat the promises, lies and misrepresentations that the union has been able to make without the opportunity for an employer to present an opposing view.

Organized labor wants shortened elections desperately since first-time union elections produce contracts only about 56 percent of the time. Unions are often unable to bargain to an agreement and lose their majority representation assumption as employees express “buyer’s remorse.”

The proposed rules seriously impact how a bargaining unit is formed, remove the employer’s ability to challenge pre-election, delay questions regarding the unit until after the election and provide hearing officers with authority to determine if an election should be held despite the existence of challenges.

Legal and political experts disagree about whether Hayes can single-handedly stop the accelerated union election rules. Some maintain that the NLRB cannot issue rules based on the votes of only two commissioners, while others maintain that the board may move ahead with today’s vote.

AIM will update members on the results of this afternoon’s session.

Topics: Organized Labor, National Labor Relations Board, Issues

NLRB Postpones Implementation of Union Notification Rule

Posted by Mike Rudman on Oct 7, 2011 11:14:00 AM

The National Labor Relations Board (NLRB) has postponed by 10 weeks the implementation of a new rule that will require employers to notify workers of their right to join a union.

Employee notification ruleThe NLRB said the postponement is intended to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The rule was scheduled to take effect on November 14, but will now become policy on January 31, 2012.

“The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made,” the agency said in a statement on its Web site.

The rule will require private-sector employers whose workplaces fall under the National Labor Relations Act to post an employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the union notice on those sites.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Associated Industries of Massachusetts has opposed the notification rule, which has drawn legal challenges from groups such as the National Right to Work Legal Defense Foundation, the National Federation of Independent Business and the National Association of Manufacturers. Those groups claimed this week that their court challenges are the real reason NLRB delayed the rule.

The rule would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.

“AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union,” said Brian Gilmore, Executive Vice President of Public Affairs at AIM.

Topics: Employment Law, Organized Labor, National Labor Relations Board

No Kidding: Bill Would Classify Day Care Workers as Public Employees

Posted by John Regan on Oct 3, 2011 9:01:00 AM

Here’s something for the “Are you kidding me?” file:  A bill pending in the Massachusetts Legislature would classify employees of private child-care businesses as public employees, give their names and home addresses to labor unions and pay those unions to represent the workers.

Day Care WorkersAssociated Industries of Massachusetts will testify against the measure - An Act to Improve Quality in Early Education Care Centers – before the Joint Committee on Public Service Tuesday. AIM believes the proposal represents a clear and unprecedented intrusion by government into private business and a massive transfer of wealth from hard-working day care employees to big labor unions.

The introduction to the bill seems innocuous enough:

“It is hereby declared to be the policy of the commonwealth to assure quality early education and care for children by child care providers…” 

Who could argue with that?

“It shall also be the intent of the General Court that child care providers and the commonwealth work jointly to establish a quality early education and care program that serves eligible low income families through providers who have the requisite skills and training.” 

Again, who could argue?

But then the language gets, well, perplexing:

“In order to address these challenges, child care providers are to be given the opportunity to work collectively to improve standards in their profession and to expand opportunities for educational advancement to ensure continuous quality improvement in the delivery of early learning services…” 

All of which happens now. But the bill maintains that to make improvement happen:

“Child care providers shall be considered public employees,” and shall be given the right to bargain collectively “with the Department of Early Education and Care, to collaborate through collective bargaining to improve the standards in their profession, expand opportunities for educational advancement and to ensure continuous improvement in the delivery of early education and care services.”

The bill would also impose a “Representation fee…paid by the state to the employee organization (read the union) for its role in advocating (lobbying) for professional development and representing (lobbying for) child care providers under this chapter.” 

And if that’s not enough:

“Every child care center and school age child care program . . . shall provide to the Department of Early Education and Care a list of the names, home addresses, phone numbers, workplace and job title of all current child care providers, annually by January 30, except that initially such lists shall be provided within thirty days of the effective date of this section.

“The Department of Early Education and Care shall, upon request, provide to a labor organization a list of all current child care providers in the unit that the organization seeks to organize or represents. Such list shall contain information including name, home addresses, telephone number, workplace and job title with regard to such employees, as is necessary for the purposes of this act.”

Individual child care and early education centers would effectively lose control of their work force while costs to the state will increase to pay a “representation fee” levied by a union for doing work that can be done right now, without making everyone in the business a public employee and union member.

AIM is not anti-union.  And we have been strong and visible supporters of efforts to improve early education opportunities in Massachusetts.

But this bill lacks logic and does nothing to advance the interest of children.  Unfortunately, we’re not kidding.

Topics: Employment Law, Organized Labor, Public Sector

Proposed Rules Would Limit Advice to Employers on Union Issues

Posted by Mike Rudman on Sep 26, 2011 11:28:00 AM

The U.S. Department of Labor has proposed rules that would force employers to disclose detailed information about any lawyer, association or consultant that helps the company communicate with workers about labor-union issues.

Advice ExemptionAssociated Industries of Massachusetts strongly objected to the proposed rules in comments filed with the Labor Department last week. AIM believes the new rules are part of a radical attempt by the Obama Administration to shift the balance of private-sector labor relations, in defiance of the neutral policies established by Congress over many decades.

“The proposed rules will interfere impermissibly with the attorney-client relationship, will interfere with the right of trade associations to communicate with their employer members, and will interfere with the ability of employers to obtain much needed advice from their peers, their lawyers and experienced labor relations consultants,” AIM and scores of other business groups said in comments filed last week by the Coalition for a Democratic Workplace.

Sandy Reynolds, Executive Vice President of the AIM Employer’s Resource Group, said the rule change would be particularly damaging for small companies, which rely on outside advice because they cannot afford to keep in-house labor relations consultants.

“AIM regularly helps Massachusetts employers create respectful work environments that make labor unions unnecessary.  The Department of Labor rules would discourage employers from obtaining that advice by creating a mountain of bureaucratic disclosure paperwork,” Reynolds said.

The Labor-Management Reporting and Disclosure Act (LMRDA) has for 50 years exempted from disclosure advice that an employer may receive from an outside consultant about communicating with employees about union issues. The proposed rule change would narrow the definition of “advice” and require public disclosure if the consultant provides material or communications, or engages in actions on behalf of an employer “that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.”

So when a consultant prepares or provides a persuasive script, letter, videotape, or other material or communication, including electronic and digital media for use by an employer in communicating with employees, the “advice” exemption does not apply and the duty to report is triggered. Training or directing supervisors and other management representatives on labor matters would also require disclosure.

AIM believes the responsibility to make such significant changes to the law rests with Congress rather than the Department of Labor. The association also believes that the rule change, combined with moves by the National Labor Relations Board to restrict employer communications during union elections, represents a thinly veiled attempt by the administration to circumvent the will of Congress and implement a “back door” version of the failed Employee Free Choice Act.

Topics: U.S. Congress, Organized Labor, U.S. Department of Labor

NLRB Will Force Employers to Notify Workers of Union Rights

Posted by Mike Rudman on Aug 25, 2011 8:47:00 PM

The National Labor Relations Board announced Thursday that it has issued a "final rule" that will require employers to notify workers of their right to join a union.

NLRB Union Notifcation RulePrivate-sector employers whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the union notice on those sites. Copies of the notice will be available from the NLRB's regional offices, and it may also be downloaded from the NLRB Web site.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Associated Industries of Massachusetts opposes the notification rule.

“AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union,” said Brian Gilmore, Executive Vice President of Public Affairs at AIM.

“The rule provides no value to companies or their hard-working employees. It merely creates an opportunity for organized labor to create stress in a healthy employer/employee relationship.”

NLRB Chairman Wilma B. Liebman and members Mark Gaston Pearce and Craig Becker approved the final rule, with member Brian Hayes dissenting. The rule will be published in the Federal Register on Friday will take effect 75 days later.

The NLRB says it modified several elements of the proposed rule after receiving more than 7,000 comments. Employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications, even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages.

The rule would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.

The possibility of the NLRB allowing a union to represent workers without an election  is based upon the Gissel Packing Company decision in which the U.S. Supreme Court  approved the use of authorization cards as a measure of union sentiment for the purpose of imposing a bargaining order as remedy for an employer’s unfair labor practices. While the Court also noted that authorization cards are “admittedly inferior to the election process...,”  both Liebman and Becker have stated that Giselle should be the rule, not the exception.

Topics: NLRB, Employment Law, Organized Labor, National Labor Relations Board

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