April 28th, 2009 | By Paul Cherner
President Obama has announced his intention to nominate two union attorneys to be Board members of the NLRB. They are Craig Becker and Mark G. Pearce.
Becker has been Associate General Counsel for the Service Employees International Union for 17 years and holds the same position at the AFL-CIO. He has practiced and taught labor law for 27 years.
Pearce practices labor law at a law firm in Buffalo, NY that represents unions and individual employees. He previously taught labor law and began his career at the NLRB.
The NLRB has a total of five Board Members. Traditionally, the President appoints three Members from his party to the staggered terms of the NLRB and designates one of them to be Chairman. The two other Board Members are traditionally from the opposition party. At the present time, there are two Board Members serving on the NLRB who were appointed during the prior administration- Chairman Liebman (D) and Member Schaumber (R). If these two new appointments by President Obama are confirmed by the Senate, there will be a Democratic majority for the first time in many years.
The President also nominates the General Counsel of the NLRB.
Update re : EFCA – Senator Arlen Specter (R – PA) previously announced that he would vote against a cloture motion on EFCA thereby making it unlikely that a filibuster could be ended. Today, Senator Specter announced that he will run for reelection to the Senate next year as a Democrat. This will likely change the playing field for the pasage of EFCA. Stay tuned for new developments.
Update re NLRB Nominees: On December 28, 2009, the Washington Post reported that the nomination of Craig Becker to the NLRB has been returned by Congress to the White House for “reconsideration.” Speculation is that Becker may request that his nomination be withdrawn in view of the strong likelihood that Senator John McCain will not allow this nomination to be passed out of the Senate committee for a vote by the full Senate. On January 7, 2010, the NY Times reported that President Obama will resubmit Becker as a nominee to the NLRB.
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.
February 4th, 2009 | By Paul Cherner
On January 30, 2009, President Obama issued three Executive Orders that impact federal contractors. These Orders are pro labor and are intended to reverse positions taken during President Bush’s administration.
Nondisplacement of Qualified Workers Under Service Contracts - this Executive Order provides for the continuation of employment of employees who are working pursuant to a service contract with the federal government, when that contract is awarded to a new contractor or subcontractor who will be performing the same or similar services at the same location. The successor contractor and/or subcontractor will be required to offer the existing nonmanagerial and nonsupervisory employees the right to continue their employment under the new contract before being permitted to hire other employees. The Order exempts certain contracts and permits a contracting agency to exempt other contracts or subcontracts if the agency determines that the application of these rules would impair their ability to procure services on an economic and efficient basis.
Notification of Employee Rights Under Federal Labor Laws - this Executive Order requires all federal contractors and subcontractors to post a notice in all places where employees covered by the National Labor Relations Act work, informing them of their rights under the federal labor laws. The Secretary of the U.S. Department of Labor has 120 days to initiate rulemaking to specify the size, form and contents of this notice, which is to be posted during the term of the contract.
Economy in Government Contracting - this Executive Order requires that costs associated with activities undertaken to persuade employees to exercise or not exercise their rights to bargain collectively through representatives of their own chosing (e.g. unions) should be treated as “unallowable” and a federal contractor may not be reimbursed for such costs. The Federal Acquisition Regulatory Council has 150 days to adopt rules and regulations needed to implement this Order.
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.
