December 1st, 2011 | By Paul Cherner
On November 30, 2011, the NLRB voted 2 – 1 to make substantial changes in the way it processes petitions for union elections. The end result of these “streamlining” changes will be to shorten the period of time between the date the union files a petition for an election with the NLRB and the date of the union election. Several changes postpone consideration of certain issues until after an election is held, assuming that the issues may not need to be decided if they would not change the results of the election. Other changes grant the local NLRB office discretion with respect to allowing the filing of briefs and special appeals. While there is no set time for when an election must be held, it is expected to be substantially shorter then the NLRB’s current goal of 42 days after the petition has been filed.
The NLRB deferred deciding some of its most controversial proposals, including that a hearing be held withing seven days after a petition is filed and that unions be given employees’ email addresses and telephone numbers prior to an election. While these controversial proposals are not part of the current changes, the NLRB Chairman has stated that those proposals will remain under consideration for possible future action.
March 10th, 2009 | By Paul Cherner
The Employee Free Choice Act (EFCA) was introduced today in the House and the Senate with much fanfare and rhetoric.
In our January 19, 2009 post, we set out the key provisions of this legislation from the prior effort to pass it in Congress. This bill will essentially allow unions to organize workers on the basis of the workers signing union authorization cards and will, in effect, obviate the usual process of the NLRB holding a secret ballot election on the issue of union representation. Additionally, the original bill set a short timetable for bargaining the first union contract and provided for binding arbitration when the parties had not reached an agreement within the proscribed time limits.
This new legislation contains essentially the same provisions of the prior EFCA bill. There will be a vigorous campaign within Congress by unions and employers over this legislation. It is too early to predict what will be contained in the final version of this important piece of legislation.
In the coming months you will be reading about this legislative battle in the papers and hearing about it from the broadcast media, since it is a “hot button” topic for many interest groups.
It is currently expected that the process of trying to enact this legislation may take until sometime this summer before it goes to a final vote. However, Senate leadership has announced that they intend to try to have it voted on after the Easter recess. We will keep you advised of further significant developments.
February 10th, 2009 | By Paul Cherner
President Obama has issued an Executive Order that encourages federal government agencies to require Project Labor Agreements (“PLA”) on large scale construction contracts. This Order revokes two prior Executive Orders issued by President George W. Bush, which had reversed a memorandum issued by President Clinton to federal government agencies encouraging PLA.
A “PLA” is a pre-hire collective bargaining agreement with one or more unions that establishes the terms and conditions for a specific construction project. If required by an agency, the PLA is binding on all contractors and subcontractors, prohibits strikes, lockouts and similar job disruptions, and sets forth a prompt and mutually binding procedure for resolving labor disputes. Agencies will have discretion, but are encouraged, to require a PLA on construction projects that are for $25 million or more.
January 19th, 2009 | By Paul Cherner
There has been a substantial amount of debate concerning the proposed federal legislation entitled the Employee Free Choice Act (“EFCA”).
In 2007, EFCA was passed by the U.S. House of Representatives, but failed to win a cloture vote to end a filibuster in the Senate. Labor unions have listed the passage of EFCA as one of their top priorities. There has been fierce debate about this legislation, often accompanied by statistics supporting either the necessity or the lack of necessity for passing this law.
This law is intended to expedite the process by which unions can organize workers. For the past 60 years, unions were recognized as the collective bargaining representative of a group of employees by either an employer voluntarily agreeing that a majority of their employees wanted the union as their representative (usually through a “card check”) or by the NLRB conducting a secret ballot election. Initially, employees sign union authorization cards, which are then used by a union to obtain voluntary recognition or to petition the NLRB to conduct a secret ballot election. In an overwhelming majority of the situations involving union organizing, the NLRB conducts a secret ballot election.
EFCA would allow a union to have the NLRB certify them as the representative of a group of employees based solely on a card check, which would determine whether a majority of employees in the group have signed cards. This proposed change would have the practical effect of obviating the need (or opportunity) for an NLRB secret ballot election and would expedite the procees of unionization.
According to the NLRB ‘s 2008 Operations Report, it conducted elections within 56 days after a petition was filed in 95% of the cases. Where there were post-election matters to consider, the NLRB finalized these elections within 100 days after the petition was filed in 84% of their cases. The unions argue that undue delay has allowed employers to coerce employees into voting against the union. In contrast, employers argue that a secret ballot election is needed to allow employees to weigh the pros and cons of union representation and permit them to vote in privacy without coercion.
EFCA would also expedite the first collective bargaining process by providing a short time (10 days) for the parties to meet and then 90 days to reach an agreement. If an agreement is not reached at that time, either party may request an FMCS Mediator, who has an additional 30 days to persuade the parties to reach an agreement. If a contract has not been agreed to within that time period, the dispute would be submitted to an FMCS Arbitration Panel, which has the authority to resolve the dispute and impose the resolution on the parties for a 2 year period. There would also be enhanced penalties and fines in this new law to protect employees against discrimination during the organizing period until the first contract is entered into.
It will be interesting to see what happens to this legislation during the next Congressional term given the current state of the economy.
December 30th, 2008 | By Paul Cherner
Expect increased activity in the labor and employment law arena from Washington, DC in 2009. The Labor Movement invested more than $300 million and countless volunteer hours to help elect President-elect Obama and enlarge the Democratic majority in Congress and it expects both to enact new legislation and initiate administrative activities that will benefit labor unions and workers.
The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“). EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure. If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards. After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement. If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations. If a contract is not agreed to in the following 30 days, the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues. President-elect Obama was a sponsor of the EFCA bill when he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007. It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.
President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board. These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration. Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.
The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview. There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“). There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.
Several organizations that advocate for a more family friendly workplace are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave. There are several states that have recently passed such legislation. The recently promulgated FMLA regulations are not expected to be changed in the near future.
President-elect Obama also has the opportunity to appoint the Chairman, General Counsel and Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration. Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.
There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.
December 18th, 2008 | By Paul Cherner
There have been many names floated in the media as potential candidates to be Secretary of Labor in the new administration. Almost all share the same characteristic, that they are pro-union, which is expected given the strong support of President-elect Obama by labor unions and their members.
According to recent news reports, it looks like Congresswoman Hilda Solis (D – CA) is the likely nominee. She began her career in the Carter White House Office of Hispanic Affairs and then worked as a budget analyst with the Office of Management and Budget. She served two years in the California Assembly and six years in the California Senate, before being elected to Congress in 2000.
She is the only Member of Congress on the board of American Rights at Work, a pro-union group headed by former Congressman David Bonior, who has been part of the transition team dealing with the Labor Department.
SEIU President Andy Stern praised the likely selection of Solis, stating: “We’re thrilled. She’s been as strong a voice for justice for SEIU workers like our janitors and homecare workers as we’ve ever had.”
Solis will be expected to be at the forefront of the unions’ efforts to enact the Employee Free Choice Act (“EFCA”) within the first 100 days of the new administration. EFCA is expected to substantially change the rules involved in organizing employees and, if passed in its present form, will likely result in a significant increase in the number of unionized workers. Solis would seem to be an ideal choice to lead the legislative battle in Congress to enact this new law, given her substantial experience as a legislator and her Congressional contacts.
December 15th, 2008 | By Paul Cherner
Last week, 240 unionized workers at Republic Windows & Doors in Chicago ended their week long “sit-in.” It is important to note what some of the issues were in case history repeats itself.
The term “sit-in” refers to workers refusing to leave their place of employment until their demands are granted. The workers may be represented by a union, like the United Electrical Workers Union who represented Republic’s employees, or they may be unrepresented by a union and simply be engaging in collective action. Sit-ins were popular during the first half of the twentieth century, particularly during the early days of union organizing. You rarely hear about such actions anymore , since they are against the law. While they are against the law, an employer is faced with the dilemma of having such workers forcibly removed by the police and facing possible adverse publicity or, as Republic did, trying to strike a deal that results in the workers leaving the premises.
The workers claimed that they had not been paid their vacation pay and other benefits due to them under the union contract. If that were true, the workers and/or the union had legal recourse to sue Republic for unpaid wages and benefits. However, they apparently determined that the quicker route would be to stage a sit-in protest that was well publicized to leverage the employer to quickly pay these monies.
Another issue involved was that the federal law (“WARN”), requires many employers to give at least sixty days notice to their employees before they close a plant or engage in mass layoffs. While there are some exceptions to that law, most employers, if they meet certain numerical criteria, are required to give such notice. Here, Republic’s employees apparently claimed that they were entitled to the sixty day WARN notice.
An underlying issue was the union’s claim that Republic was closing its union plant in Chicago, so that it could open a non-union factory in another state under another name, where it would be producing the same product. The concept of an alleged “runaway shop” raises issues under the National Labor Relations Act. Whether or not there was such motivation in this dispute is unclear, but avoiding protracted litigation over that issue may have been another motivation for Republic resolving the controversy with the workers and the union.
The final resolution was that Republic’s creditors agreed to loan it additional funds so that it could meet the union and the workers’ demands in return for the workers vacating the plant and settling all disputes. The union and certain elected officials are now looking for a new owner to resume operations at the former Republic plant. The success of the Republic workers well publicized sit-in may result in other workers and/or unions adopting similar tactics in the future.
