January 27th, 2012 | By Paul Cherner
The NLRB recently issued a decision that should prompt health care institutions to review their policies and practices concerning the wearing of union buttons and the access of off- duty employees to the health care facility.
In Saint John’s Health Center, 357 NLRB No. 170, the NLRB, in a 2 to 1 decision, found that a hospital had violated the National Labor Relations Act by its publication and application of rules with respect to the wearing of insignia in patient care areas and the presence of off duty employees on the hospital’s premises.
The Board stated that in healthcare facilities –
“restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions in other areas of a hospital are presumptively invalid.”
However, as the Board noted, this presumption does not protect a selective ban on only certain union insignia. In this case, the hospital allowed employees to wear hospital endorsed ribbons and buttons, including in immediate patient care areas. Accordingly, the Board found it unlawful when the hospital banned the wearing of a union ribbon with the legend “Saint John’s RNs for Safe Patient Care”, since it was a selective enforcement of the rule.
Saint John’s previously had a rule that prohibited off-duty employees from being on the hospital’s premises with the exception of allowing them to be there to visit a patient. This rule was later revised to allow off-duty employees to also have access to the hospital cafeteria and to the hospital building for hospital sponsored events, such as retirement parties and baby showers. After the new rule was posted, the hospital enforced the rule against off-duty employees who were at the hospital to campaign for a union.
The Board stated that a rule barring off-duty employees from their employer’s premises is valid only if it meets all of the following criteria:
“Limits access solely with respect to the interior of the facility & other working areas;
is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaged in union activities.”
The Board found that Saint John’s revised rule did not ban access to the premises for any purpose and was therefore invalid.
Suggestion - Hospitals should review, and, if necessary, revise their current rules regarding the wearing of insignia and access to the premises by off-duty employees to ensure that they meet the criteria required by the Board for these rules to be valid. In addition, supervisory employees should be instructed to apply these rules on a uniform, not selective, basis.
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.
June 17th, 2010 | By Paul Cherner
The U.S. Department of Labor (“DOL”) has issued a final rule implementing President Obama’s Executive Order 13496 requiring all government contracting departments and agencies to include a provision in their solicitations for contracts requiring that contractors must post a notice in conspicuous places informing employees of their rights under the National Labor Relations Act (“NLRA”).
The new notice must be posted for all covered government contracts or subcontracts that result from solicitations issued after June 21, 2010. Go to the DOL’s website for more specific information about the size and placement of the notice and about possible electronic posting. Click here to see a sample of the new notice. Please note that the notice posted must be at least 11″ by 17″. Covered government contracts will mandate that the prime contractor require subcontractors performing services or goods under the covered contract for $10,000 or more to also post this notice.
Prime contracts for less then $100,000 or those for work performed exclusively outside the U.S. do not required the posting of this notice. The notice requirement does not apply to contracts resulting from solicitations issued prior to June 21, 2010.
This notice has an extensive explanation of workers’ rights to organize and take collective action. It also sets forth examples of adverse conduct by an employer (or a union) against an employee that would be unlawful under the NLRA. It informs employees of possible remedies that can be ordered by the NLRB to correct unlawful conduct and tells them how to contact the NLRB to file a charge.
This new Executive Order also revoked an Executive Order by President George W. Bush that federal contractors had to post informing employees of their rights concerning the payment of union dues or fees
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.
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.
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 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.
