The NLRB Gets Its SexyBack.
Do you remember where you were on September 14, 2006? Yeah, me neither.
If you were listening to the radio (or possibly iTunes… Spotify was just created a few months earlier) you were probably jamming to Justin Timberlake’s SexyBack.
The big labor story that day was that Ford Motor Company and the United Automobile Workers union agreed on a controversial buyout program that persuaded more than 75,000 Ford workers to leave their jobs.
You wouldn’t have read any of these stories on Twitter, since it was also created only a few months earlier.
But for readers of INK, perhaps the most notable thing that happened on September 14, 2006 was that two NLRB petitions, filed in long-term care facilities in New Jersey, were blocked by unfair labor practice charges. Those two elections –
Pine Brook Care Center and
Pavillion @ Forrestal – remain blocked today. That is 4,726 days ago – nearly 13 years.
Look, I understand that justice isn’t exactly swift in some Board regions. But what unfair labor practice can’t be resolved in 13 years? The employees in both of these organizations were deprived of their opportunity to vote on union representation this entire time. Their elections were blocked. And since turnover is high in long term care it is entirely possible none of these employees even work in these facilities anymore. They were disenfranchised forever.
Unions will claim that the only reason they block elections is because an employer’s alleged misconduct has so tainted the atmosphere that a free and fair election is impossible. My personal experience is that unions more commonly block elections where they think they are going to lose. They want to avoid the embarrassment of a lopsided public loss by claiming the employer did something wrong. But there are certainly situations where employers do commit unfair labor practices that should be resolved in favor of the union.
But these two cases illustrate the absurdity of the current blocking charge policy (not to mention the inefficiency of some Board regions). Thankfully that blocking charge policy is about to get much more rational.
On August 12 the NLRB published a notice of proposed rulemaking that ends the ability of unions to disenfranchise voters by simply filing an 11th hour claim of employer wrongdoing. The proposal is simple. Instead of stopping elections at the last minute, the Board instead will adopt a “vote-and-impound” procedure. In other words, in situations where a union claims that employer misconduct will impact the election the Board will allow employees to vote and then wait to count the ballots until after the charges are resolved.
This policy makes imminent sense. In cases where no employer unfair labor practice is found, the Board simply opens the ballots. If an unfair labor practice is found the Board will determine an appropriate remedy, typically ordering a new election.
This system gets rid of a bunch of the gamesmanship unions play at the end of an election. They know the vote is going to happen one way or the other. If they are just trying to avoid a loss, they will pull their petition. If they truly believe an unfair labor practice occurred, they still get their day in front of the agency. Only now the interests of the employees – who are supposed to be at the center of this process – are actually accommodated.
Another important component to this is resolving cases in a timely manner. There are a number of procedural reasons that a case can linger at the Board, but 13 years (and this is just two cases – the
NLRB’s appendix to their rulemaking shows many more elections blocked over 1,000 days). Justice delayed is justice denied, and there are way too many of these cases just sitting on someone’s desk.
The NLRB rulemaking does not just fix the blocking charge problem. It also enfranchises employees in situations where their employer voluntarily recognizes a union. This commonly happens in the construction industry (what’s called a 9(a) recognition). But it also happens outside the construction industry, often in situations where a union engages in anti-corporate campaign activity to pressure a company into giving a union what it is afraid to attempt to gain via a government supervised secret ballot election.
The new rulemaking fixes these two situations as well. Now, in 9(a) situations the company is required to show that it has actual proof that a majority of its employees want to be represented by a union. And in non-construction situations employees are given the right to ask for an election within 45 days after their employer voluntarily recognizes a union. This helps ensure transparency and makes sure that a group of employees isn’t forced into a union that they don’t want.
These proposed changes are significant improvements to the election rules. While I hope the Board quickly comes out with other improvements to the election rules (like reversing the prior election rulemaking) these 3 changes are a great start.
Now I’m going to go crank some more Timberlake. And since it’s 13 years later, I’m doing it on Spotify.
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Union Bailout Update
The Division of Advice at the NLRB will
now be helmed by Richard Bock, who joined the agency in 1996 as a field attorney. Although memos from the Division of Advice are not binding, they do provide guidance to board regional offices and can be cited as persuasive authority.
As we
mentioned the day it was announced, the NLRB has posted a Notice of Proposed Rulemaking related to election rules. If you missed our email blast, you can
read the notice here.
The recent NLRB
Walmart decision provides employers (and employees) with more clarity concerning unconventional or intermittent strikes. In the decision, the board reversed an ALJ who ruled that members of OUR Walmart (a UFCW-led association of Walmart employees) who failed to show up for work so they could attend a UFCW rally at a Walmart board meeting in Arkansas, were participating in protected concerted activity. The ALJ ruling was the result of Walmart firing 54 of the employees for violating attendance policies.
However, the board found that the “ride for respect (R4R)” that the Walmart employees participated in was one of four intermittent strikes occurring over a period of many months, and as such would not be considered protected concerted activity. Even though seven months had elapsed from the last short strike prior to the R4R, it
was obviously part of the UFCW / OUR Walmart strategy aimed at the same overall goals, and was thus unprotected.
In a recent 3-1 decision, the NLRB ruled that employers may
require workers to sign arbitration agreements in response to class-action lawsuits and fire them if they refuse to sign. Click the link for details (NOTE: full story behind a paywall).
Arbitration agreements are in the spotlight, as states scramble trying to respond to the groundswell of support for the #MeToo movement. Fifteen states have proposed laws, with four states enacting laws providing some limits regarding what can be included in arbitration agreements. Thus far, judges have continued to rule that the Federal Arbitration Act takes precedence over state (and other federal) laws. However,
the winds of change are blowing, and congressional action amending the FAA isn’t unthinkable.
The National Mediation Board, which coordinates labor-management relations for the U.S. railroads and airline industries, recently simplified the decertification process. Prior to the change, a process for direct decertification didn’t exist, and a “straw man” process had to be used to trigger a vote. Under the final rule, employees
may now submit authorization cards stating the intention to no longer be represented by their union. If cards are returned for 50% of the voting population, an election can be held, to include the three options of current representation, no union, and a write-in.
As retaliation claims have risen over the last decade, employers should be aware that OSHA has recently
refreshed its website to offer even more clarity about the industries and issues the agency covers. Although Section 11(c) of the Occupational Safety and Health Act is, perhaps, the most well-known retaliation statute that OSHA enforces, the agency is responsible for the enforcement of
over 20 other federal retaliation statues.
The last step for employers in California to have to collect pay equity data is pending with the California Assembly, having already been passed by the Senate. If it becomes law, a private employer with 100 or more employees that needs to file an EEO-1 report under federal law must submit a pay data report including wage information to the Department of Fair Employment and Housing (DFEH). If the bill becomes law, California employers
can expect to see an increase in pay equity enforcement action by the state, and more class action litigation on pay equity issues.
New Jersey and Illinois became the most recent states to ban
certain requests and uses of salary history in hiring processes. Each state’s law is unique, so if this topic falls in your wheelhouse, be certain to review your state’s version, if applicable.
Link & Comments
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Laboring Toward 2020
As election season heats up, unions are making hay by grabbing short-term employees from several Democratic Party hopefuls. One presumes they don’t anticipate much of a fight from Dems, so even though most of these folks will be out of a job come the new year, the unions might as well pick their pockets while they can.
The campaign teams of
Cory Booker and
Julián Castro became the latest to unionize, following those of Bernie Sanders and Elizabeth Warren. The Teamsters picked off the Booker staff, while the Campaign Workers Guild grabbed the Castro group. All is not peaches and cream for the unionized workers though, as
an Unfair Labor Practice has been filed against the Sanders campaign.
At the recent AFSCME forum in Las Vegas,
nineteen Dem contenders showed up to pitch their platforms to Big Labor. The AFSCME, usually one to quickly endorse a candidate, is
being coy this time around, and it’s expected other unions will follow suit.
At the recent Iowa Federation of Labor (AFL-CIO) convention, Bernie Sanders touted his plan to
double union membership within four years. The plans
strategies include:
- Card check organizing
- Compulsory mediation to first contract
- Elimination of Right To Work
- Codify the Browning-Ferris joint-employer standard into law
- And more…
On the other side of the race, the Labor Department’s potential apprenticeship initiative may steer construction workers away from Trump. Although they were hopefully supportive of Trump due to his stance on job creation in their industry, the Building Trades may come down hard if they feel
their job-training programs could be undermined. The Building Trades is a union federation representing millions of construction workers across the country.
Link & Comments 
