Tag Archives: National Labor Relations Act

The NLRB is getting into some big briefs

English: Black and white logo of the National ...
English: Black and white logo of the National Labor Relations Board, an independent agency of the United States federal government. (Photo credit: Wikipedia)

NLRB requesting briefs on several topics

The NLRB has been busy lately asking for briefs related topics where they will be making some big changes. Last week it was a request for briefs on the proposed rule changes for union certification elections. This week they are requesting briefs related to the status of university employees under the act under certain circumstances.

Notice of Proposed Rulemaking: Representation-Case Procedures

The National Labor Relations Board (Board) has proposed amending its rules and regulations governing representation-case procedures. The proposed amendments are intended to enable the Board to more effectively administer the National Labor Relations Act (NLRA). Specifically, the proposal would modernize and simplify representation-case procedures and render them more transparent and uniform across regions. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.

The Board has periodically reviewed and revised its procedures in representation cases in order to efficiently carry out its duties under NLRA. Since the NLRA was enacted in 1935, the Board has amended its representation case rules at least three dozen times, often in substantial ways. The proposed reforms represent the Board’s latest effort to improve its service to the public.

The Board invites comments on the proposal. Comments may be submitted until April 7, 2014, either electronically through www.Regulations.gov or by mail to the Board’s Washington D.C. headquarters. Reply comments may be submitted by April 14, 2014. In addition, the Board will hold a public hearing during the week of April 7, 2014.

Board invites briefs regarding religious university jurisdiction and faculty member status

The National Labor Relations Board is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees. Click here to view the invitation for briefs.

The case is Pacific Lutheran University (19-RC-102521). At this Tacoma, Washington-based university, the Service Employees International Union, Local 925 filed a petition to represent a unit of all non-tenure-eligible contingent faculty who taught a certain number of hours. The university argues that the Board lacks jurisdiction because the university is a religiously-operated institution that is not subject to the Act, and that certain faculty in the petitioned-for unit are managers. In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case. The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980).

Briefs should be filed with the Board on or before March 28, 2014. The parties and amici may file briefs electronically at http://mynlrb.nlrb.gov/efile. If assistance is needed in filing through http://mynlrb.nlrb.gov/efile, please contact Gary W. Shinners, Executive Secretary, National Labor Relations Board.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

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NLRB decides not to seek appeal on workplace notice posting rule

NLRB sends out press release on employee right to join or not join a union

This press release from the NLRB details their reasoning for not filing an appeal on a U.S. Court of Appeals decision that invalidated their proposed rule requiring most private sector employers in the United States to post a notice about employee rights to unionize.  The rule was opposed by the Chamber of Commerce and other business groups for being too one sided regarding the right to unionize, when the National Labor Relations Act clearly states that employees have a right to choose to be represented by a union for the purposes of collective bargaining, or to choose not to be represented.

The press release actually does a pretty good job of making that crucial distinction clear.  You can view the complete press release online here.

The NLRB’s Notice Posting Rule

January 6, 2014

The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.

The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.

Under the National Labor Relations Act, most private sector employees have the right to:

  • Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  • Choose not to do any of these activities, including joining or remaining a member of a union.

 

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NLRB issues Walmart press release

NLRB Office of the General Counsel Authorizes Complaints against Walmart, Also Finds No Merit to Other Charges

The following press release was issued by the National Labor Relations Board this afternoon.  More sure to be forthcoming.

Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

NLRB Office of the General Counsel Authorizes Complaints against Walmart, Also Finds No Merit to Other Charges

The National Labor Relations Board Office of the General Counsel has investigated charges alleging that Walmart violated the rights of its employees as a result of activities surrounding employee protests. The Office of the General Counsel found merit in some of the charges and no merit in others. The Office of the General Counsel has authorized complaints on alleged violations of the National Labor Relations Act. If the parties cannot reach settlements in these cases, complaints will issue.

The Office of the General Counsel found merit to alleged violations of the National Labor Relations Act against Walmart, such as the following:

  • During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.
  • Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
  • Walmart stores in California, Florida, Missouri and Texas unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

The Office of the General Counsel found no merit, absent appeal, to alleged violations of the National Labor Relations Act against Walmart, such as the following:

  • Walmart stores in Illinois and Texas did not interfere with their employees’ right to strike by telling large groups of non-employee protestors to move from Walmart’s property to public property, pursuant to a lawful Solicitation and Distribution policy, where the groups contained only a small number of employees who either did not seek to stay on Walmart’s property or were permitted to remain without non-employee protesters.
  • Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights.

The National Labor Relations Act guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union.

 

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Labor Relations Round-up, CliffsNotes style #NLRB

English: Mark Gaston Pearce. Mr. Pearce was a ...
Mark Gaston Pearce.  (Photo credit: Wikipedia)

 

Too busy for blogging

I am seemingly swamped for the rest of the year, so I just don’t blog anymore.  Every once in a while I get the itch, like a bad rash, but then it goes away.  I’m not sure this is a good thing, because I actually have more clarity about my daily work when I am blogging regularly. It’s one of many benefits of blogging that I am not taking advantage of right now.   To remedy this, I’m going to try an experiment.

I’m going to try brevity posts.   Typically, I’m starting with labor relations. Here’s a couple of big stories.

The NLRB is back in business, operating with a full slate of five members for the first time in a decade.  Think about just how f*cked up our political system must be for a governmental agency to go for a decade without a full complement.   Yay beer!  I mean, there has to be some justifiable reason for that, right?   Red Stripe is just as good an excuse as any other I can think of.  By the way, the new Board is not going to be a friend of HR, or business.

If you were in the restaurant business, you better buckle up.  All indications are that the string of one day strikes aimed at the fast food industry are about to expand massively, according to an interview with a union president behind the effort.

We’ll cap off this post with a dress code story about baseball caps at work from Lexology. 

An employer’s policy prohibiting employees from wearing baseball caps other than the employer’s is an unlawful restriction on employees’ Section 7 activity, an NLRB Administrative Law Judge has decided.  Quad Graphics, Inc., 32-CA-062242 (July 31, 2013).

 

 

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Labor Relations Round-up for August 13, 2012

NLRB news round-up for August 13,  2012 

NLRB_picketing_2007
NLRB_picketing_2007 (Photo credit: dctim1)

I haven’t done an NLRB update in a while.  Here’s some of the stuff they’ve been up to lately.  The Board has been active, even if they aren’t getting the same  press now that they election is getting closer.

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You’ll probably hear about this in the labor relations/NLRB update at #SHRM12.

Weekly NLRB update, just in time for #SHRM12

The National Labor Relations Board has just announced that they are rolling out a new website designed to help people understand the concept of protected concerted activity.   It’s easy to use, and includes an interactive map directing users to various related NLRB cases.  The links lead toimportant information, but it is generally very dry and technical reading.  I don’t anticipate anyone taking the brilliant prose viral any time soon.

Here’s the text of the NLRB press release:

The National Labor Relations Board today made public a webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.

The page, at www.nlrb.gov/concerted-activity, tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.

Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.

The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that:  “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years. Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.

“A right only has value when people know it exists,” said NLRB Chairman Mark Gaston Pearce. “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

 

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How the National Labor Relations Board members addressed their latest kerfuffle internally

Joint Statement by NLRB Chairman Mark Gaston Pearce and Members Brian Hayes, Richard Griffin, and Sharon Block

English: Mark Gaston Pearce. Mr. Pearce was a ...
English: Mark Gaston Pearce. Mr. Pearce was a member of the National Labor Relations Board (an independent agency of the United States federal government), serving a recess appointment as a Member of the NLRB from April 7, 2010, to June 21, 2010. He was confirmed by the United States Senate to a five-year term on June 22, 2010. He was appointed Chair of the agency by President Barack Obama on August 28, 2011. (Photo credit: Wikipedia)

Two days ago, we announced that Terence F. Flynn tendered his resignation to the President and the Board Chairman, effective July 24, 2012.  Mr. Flynn immediately recused himself from all agency business and asked that the President withdraw his nomination for Board Member of the NLRB.

We acknowledge that the events leading up to this announcement may have been the cause of some frustration among our staff.  While you showed extreme patience, your instinct to protect and defend the institution that you hold dear was strong.
There were many questions but very few answers.  We regret that these highly unusual circumstances gave the Board much to consider and very little that could be shared.
Resolution of this matter came as a result of the united efforts of the four Board Members present today, along with our offices and that of the Solicitor, who worked tirelessly to reach a resolution acceptable to all concerned and, most importantly, one that would protect this vital institution.
Today we ask you to reflect on the mission of this agency. We are here to enforce a statute that guarantees the right of employees to organize, bargain collectively with their employers or to refrain from all such activity.  This statute, the National Labor Relations Act, implements this nation’s labor policy – a policy that assures free choice and encourages collective bargaining as a means of maintaining industrial peace.  We serve the public in this regard employing the highest of ethical standards.  
Recent events have created a distraction from this mission.   Such distractions shall not tarnish this agency’s image – an image created from the good and honest work of its employees.  These events also caused us to reflect on the extremely high value we as Board Members place on the deliberations we have with each other and, as importantly, the free and open exchange we have with you in considering cases.  Hopefully, we can all come away from this difficult experience and the threat it posed to our deliberative process with a greater appreciation for that process.
We thanked you earlier for your hard work and commitment to excellence through even the most difficult of circumstances. You are not given enough recognition for these efforts and the ethical manner in which you pursue them.
Today, we as a Board renew our commitment to the public’s trust. We hold sacred the ethical principles that are central to this Agency, including safeguarding confidential information and deliberations.
While we as a Board may occasionally differ on matters of law, we are united in our high regard for this Agency and our commitment to fairness, collegiality and integrity.
Editorial note:  I added the bold highlighting to the one paragraph. – MVD
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How you’ve been screwed – whether you know it or not.

New NLRB Election Rule changes are a trap if you aren’t ready

You are an expert practitioner of HR.  You deal with a gamut of complex issues every day.  You work for a good employer.   You have gone your entire career without ever dealing with the NLRB.  Life is good.

If you think that, you are so screwed.

Obviously you have missed the warnings, like this and this, or the claim that the impact of  these new NLRB rules has been instantly felt with a near-record number of Representation Petitions already filed this month .

If you haven’t read the 24 page memorandum from the NLRB, please do me a personal favor and at least read this shorter NLRB summary of the changes, and go make sure your supervisory training and response plans are up to date.

Explanation of NLRB Election Process Changes

One of the NLRB’s primary responsibilities is to hold secret ballot elections so that employees can decide whether they wish to be represented by a labor union or, if already represented, to remove the union or replace it with another.

The Board recently voted to change some election procedures in order to reduce unnecessary litigation, adopting parts of a broader proposal to modernize and streamline the election process. The changes, effective on April 30, 2012, are described below.

1. Defining the Scope of the Pre-Election Hearing. Most parties to NLRB elections agree to the election terms. When they can’t agree, the NLRB conducts a pre-election hearing to determine whether an election should be held.  This amendment alters Section 102.64 of the Rules to explicitly state that the purpose of the hearing is to determine whether a question of representation exists, and amends Section 102.66(a) to give the hearing officer the discretion to limit the hearing to relevant matters. Currently, questions concerning a small number of employees may be litigated at great length and expense despite having no effect on the final result, because the disputed individuals’ eligibility to vote only becomes an issue if their votes would have made a difference in the final outcome of the election.

2. Limiting Post-Hearing Briefs. The second amendment alters Section 102.66(d) of the Rules to give hearing officers the discretion to control the filing, subject matter, and timing of any post-hearing briefs. This amendment was adopted because most cases involve only routine issues based on well-known principles of NLRA law. Briefing adds little to the decision-making process, but introduces further delay and adds significantly to the parties’ litigation expenses.

3. Consolidating Pre- and Post-Election Appeals. The third amendment alters Sections 102.67 and 102.69 to eliminate the need to file multiple appeals. Currently, parties must file one appeal to seek Board review of pre-election issues and a separate appeal to seek Board review of post-election issues, such as challenges to voter eligibility and objections to a party’s conduct during the course of the election. This amendment consolidates the two appeals into a single post-election procedure, which saves the parties from having to file and brief appeals that may become moot based on the outcome of the election. This change also conforms NLRB procedures with the ordinary rules found in both state and federal courts which limit interlocutory appeals.

4. Eliminating the 25-Day Waiting Period. The fourth amendment follows directly from the third by removing the 25-day waiting period after a regional director’s pre-election decision issues. Under the current rules, Section 101.21(d) recommends that the regional director refrain from setting an election date sooner than 25 days after ordering an election to allow the Board sufficient time to consider any requests for review. Because the new rules eliminate pre-election appeals, the waiting period no longer serves any purpose.

5. Establishing a Standard for Interlocutory Appeals. The fifth amendment also takes aim at the problem of multiple appeals to the Board in a single case . The current rules fail to establish any standard for the filing of interlocutory appeals concerning individual rulings by hearing officers or regional directors during the course of a pre-election hearing. As a result, parties may, and have, filed numerous appeals in a single case regarding discrete rulings as to what evidence may, or may not, be permitted. By altering Section 102.65(c), the new rules make clear that the Board will grant such interlocutory appeals only under “extraordinary circumstances where it appears that the issue will otherwise evade review.”

6. Establishing Standards for Post-Election Procedures. The amendment to Sections 102.62(b) and 102.69 codifies a long-established practice in which regional directors decide challenges and objections to elections through an investigation without a hearing when there are no substantial or material factual issues in dispute. The amendment also makes Board review of the regional directors’ decisions discretionary. This change will require parties to identify significant prejudicial error by the regional director or some other compelling reason for Board review, allowing the Board to devote its limited time to cases where its review is warranted.

In its original notice of proposed rulemaking, the NLRB proposed many other amendments as part of a broader modernization of the election process. These amendments, among other things, would have standardized deadlines across the country and allowed for the electronic filing of petitions. The Board set those portions of the proposal aside for possible future consideration.

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NLRB Complaint against 24 Hour Fitness alleges arbitration policy is unlawful

From the National Labor Relations Board:

Arbitration policy is unlawful?

The National Labor Relations Board today issued a complaint alleging that 24 Hour Fitness USA, Inc. violated federal labor law by insisting that all employment-related disputes be resolved by individual arbitration.

The California-based corporation, which operates fitness centers across the country, Revise requires employees to agree in writing, as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations.  Such a requirement violates protections guaranteed by the National Labor Relations Act, according to the complaint issued by the agency’s San Francisco Regional Office.

An investigation was prompted by a charge filed by an employee at the 24 Hour Fitness center in San Ramon, California. Since at least the summer of 2010, the company has enforced its no-class-action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. In each case, employees, who are not represented by a union, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis. In response, 24 Hour Fitness sought to compel the employees to submit their common claims to individual arbitrations, citing the policy in its handbook.

The complaint calls for a hearing before an Administrative Law Judge on June 11, and seeks an order requiring the company’s fitness centers nationwide to stop maintaining and enforcing that portion of the policy that prohibits collective and class action, and to notify all judicial and arbitral forums in which it has opposed such action.

In D.R. Horton, Inc., 357 NLRB No. 184, decided earlier this year, the Board found that the employer, a home building company, violated Section 8(a)(1) of the Act by maintaining, as a condition of employment, a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial

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These new NLRB rules for elections start on April 30th

Explanation of NLRB Election Process Changes

These changes go into effect on April 30th, barring a possible last minute court decision.  There will be more information released by the NLRB later today.  This is big stuff if you get a petition for a union election. – Michael

 One of the NLRB’s primary responsibilities is to hold secret ballot elections so that employees can decide whether they wish to be represented by a labor union or, if already represented, to remove the union or replace it with another.
The Board recently voted [1] to change some election procedures in order to reduce unnecessary litigation, adopting parts of a broader proposal to modernize and streamline the election process. The changes, set to take effect on April 30, 2012, are described below.
1. Defining the Scope of the Pre-Election Hearing. Most parties to NLRB elections agree to the election terms. When they can’t agree, the NLRB conducts a pre-election hearing to determine whether an election should be held.  This amendment alters Section 102.64 of the Rules to explicitly state that the purpose of the hearing is to determine whether a question of representation exists, and amends Section 102.66(a) to give the hearing officer the discretion to limit the hearing to relevant matters. Currently, questions concerning a small number of employees may be litigated at great length and expense despite having no effect on the final result, because the disputed individuals’ eligibility to vote only becomes an issue if their votes would have made a difference in the final outcome of the election.

2.  Limiting Post-Hearing Briefs. The second amendment alters Section 102.66(d) of the Rules to give hearing officers the discretion to control the filing, subject matter, and timing of any post-hearing briefs. This amendment was adopted because most cases involve only routine issues based on well-known principles of NLRA law. Briefing adds little to the decision-making process, but introduces further delay and adds significantly to the parties’ litigation expenses.
3.  Consolidating Pre- and Post-Election Appeals. The third amendment alters Sections 102.67 and 102.69 to eliminate the need to file multiple appeals. Currently, parties must file one appeal to seek Board review of pre-election issues and a separate appeal to seek Board review of post-election issues, such as challenges to voter eligibility and objections to a party’s conduct during the course of the election. This amendment consolidates the two appeals into a single post-election procedure, which saves the parties from having to file and brief appeals that may become moot based on the outcome of the election. This change also conforms NLRB procedures with the ordinary rules found in both state and federal courts which limit interlocutory appeals.

4.  Eliminating the 25-Day Waiting Period. The fourth amendment follows directly from the third by removing the 25-day waiting period after a regional director’s pre-election decision issues. Under the current rules, Section 101.21(d) recommends that the regional director refrain from setting an election date sooner than 25 days after ordering an election to allow the Board sufficient time to consider any requests for review. Because the new rules eliminate pre-election appeals, the waiting period no longer serves any purpose.
5.  Establishing a Standard for Interlocutory Appeals. The fifth amendment also takes aim at the problem of multiple appeals to the Board in a single case . The current rules fail to establish any standard for the filing of interlocutory appeals concerning individual rulings by hearing officers or regional directors during the course of a pre-election hearing. As a result, parties may, and have, filed numerous appeals in a single case regarding discrete rulings as to what evidence may, or may not, be permitted. By altering Section 102.65(c), the new rules make clear that the Board will grant such interlocutory appeals only under “extraordinary circumstances where it appears that the issue will otherwise evade review.”

6.  Establishing Standards for Post-Election Procedures. The amendment to Sections 102.62(b) and 102.69 codifies a long-established practice in which regional directors decide challenges and objections to elections through an investigation without a hearing when there are no substantial or material factual issues in dispute. The amendment also makes Board review of the regional directors’ decisions discretionary. This change will require parties to identify significant prejudicial error by the regional director or some other compelling reason for Board review, allowing the Board to devote its limited time to cases where its review is warranted.
In its original notice of proposed rulemaking, the NLRB proposed many other amendments as part of a broader modernization of the election process. These amendments, among other things, would have standardized deadlines across the country and allowed for the electronic filing of petitions. The Board set those portions of the proposal aside for possible future consideration.


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