For organized labor, Christmas has come early. Unfortunately, Americas’ employers received a lump of a coal.
Late last week, President Obama’s National Labor Relation’s Board finalized the so-called “ambush election rules”—a gift that was at the top of every union’s wish list. By speeding up the timeframe for representation elections, this new regulation will significantly handicap employers’ ability to contest union organizing drives.
As Siegel O’Connor has previously noted, the average time between when a union files a representation petition—the first step in organizing a workplace into a union—is 38 days, but this new rule would reduce that to as few as 10 days. Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company.
Employers across the country have strongly criticized the change. For instance, the Retail Industry Leaders Association (RILA) issued the following statement:
This flawed rule is harmful to both workers and employers. By dramatically changing the procedures that govern union elections, the rule limits the information available to employees prior to entering the voting booth, potentially subjects employees to harassment at home and undermines the due process rights of employers.
Bottom Line for Employers
Fortunately for America’s employers, these new regulations don’t go into effect until April 2015; additional legal and legislative challenges are likely. In the interim, however, Employers should contact their respective members of Congress and demand an end to the Obama NLRB’s hyper-partisan antics. Employers are also urged to contact their labor counsel and begin developing a strategy for contesting ambush elections.
Earlier this week, the National Labor Relations Board (NLRB) issued a decision (Purple Commc’ns Inc) giving employees the right to use employers’ email systems for non-business purposes—including union organizing. This ruling overturns the Board’s 2007 decision in Register Guard, and opens up yet another front in the partisan Board’s war against employers.
In its decision, the Board declared the analysis in Register Guard to be “clearly incorrect,” and one that focuses “too much on employers’ property rights and too little on the importantance of email as a means of workplace commutation.” As a result of this ruling, agues the Board, the NLRB “failed to adequately protect employees’ rights under the Act” and abdicated its responsibility to “adapt the Act to the changing patterns of industrial life.” Indeed, throughout its analysis, the Board justifies its ruling by referencing email’s new role as the “primary means of workplace discourse.”
Having dismantled Register Guard, the Board will now adopt a “presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time.”
In an attempt to mollify employers, the Board offers the following three limitations on employee’s ability to use email for organizing purposes:
- This decision applies only to employees who have been granted access to the employer’s email system in the course of their work; employers are not required to provide such access
- Employers may justify a total ban on non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
- This decision does not address nonemployees or any other type of electronic communication.
These limitations, however, offer little solace to employers already struggling to comply with the avalanche of union-friendly regulations churned out by an increasingly hostile NLRB.
A Powerful Dissent
The Board’s decision in Purple Commc’ns Inc., is unprecedented. As Board Member Philip Miscimarra notes in his dissent, “The [National Labor Relations] Act has never previously been interpreted to require employers, in the absence of discrimination, to give employees access to business systems and equipment for NLRA-protected activities that employees could freely conduct by other means.” Furthermore, it is all but impossible “to determine whether or what communications violate restrictions against solicitation during working.”
Member Johnson, who penned his own 32-page dissent, hammered the majority’s decision for essentially forcing employers to subsidize speech in violation of the U.S. Constitution. Johnson argues, “The First Amendment violation is especially pernicious because the Board now requires an employer to pay for its employees to freely insult its business practices, services, products, management, and other coemployees in its own email. All of this is now a matter of presumptive right…”
Looking forward, Johnson’s dissent warns that “Taken to its extreme, the majority’s…rationale would just as easily apply to taking over an employer auditorium, or conference room in the middle of the workday during an employer presentation/conference.
The Road Ahead
On a practical level, however, employers must now re-evaluate their internal rules and regulations regarding employee use of company email. Specifically, Purple Commc’ns Inc has now rendered most employee handbooks obsolete; employers should, over the next few weeks, review their employee email communications policy, and contact their labor counsel to examine how this stunning new decision will impact existing company policies.
This morning, the U.S. Supreme Court held that personal care assistants who are paid by the state of Illinois—but mostly supervised by the homecare recipients they serve—are not “full-fledged” public employees. As a result, these employees cannot be forced to pay union dues or fees.
In a 5-4 decision, the majority ruled that requiring personal care assistants to pay union dues would violate the First Amendment rights of nonmembers who disagree with the positions that unions take.
The Court noted that these assistants are “different from full-fledged public employees,” because they work primarily for their disabled client, and do not receive the same benefits as regular state employees.
This decision deals a considerable blow to organized labor. Unions are losing members—and, in turn, the dues and fees provided by said members—at an astonishing rate. Had the court ruled in their favor, public-sector unions would have had access to 26,000 new members—and their wallets. And given that nine other states, including Connecticut, allow personal care assistants to join unions, the impact will be felt far beyond Illinois.
In making its decision, the court refused to overturn Abood v. Detroit Board of Education, a 1977 Supreme Court cases that requires “full-fledged” public employees to pay dues, even if they are not members of the union. Justice Alito, writing for the majority, noted that:
Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems...If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood's reach to full-fledged state employees.
However, labor unions will likely emphasize that the ruling stressed the unique nature of the personal care assistant:
PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited.
Bottom Line for Employers:
Look for this decision to trigger a battle over the definition of “full-fledged public employees,” as well as a renewed organizing push from public sector unions.
Earlier this month, the Connecticut legislature wrapped up its 2014 regular session—a whirlwind few months that left employers scrambling to adjust to several new laws and regulations.
Primarily, Connecticut employers should be concerned about the legislature’s decision to increase the minimum wage. Under SB 32 (“An Act Concerning Working Families' Wages”). Connecticut’s minimum wage will (as of January 1 of each of the next three years) increase to:
· $9.15 per hour in 2015;
· $9.60 per hour in 2016; and
· $10.10 per hour in 2017.
Furthermore, hotel, bar, and restaurant employees’ minimum wages (with the corresponding tip credit), will also change
The legislature’s decision to raise the minimum wage will negatively impact not only employers, but working-class families as well. Indeed, minimum-wage increases reduce the number of entry-level minimum-wage jobs available—actually hurting many of the workers the legislation endevors to help.
Connecticut employers should review all policies and procedures to ensure compliance with these changes to the minimum wage law.
In a critical new ruling, the National Labor Relations Board held that “union job targeting programs, including those funded in part by voluntary deductions from the wages of union members employed on State-funded public works projects, are clearly protected under Section 7 of the Act.” This latest ruling throws up yet another roadblock in front of contractors already contending with a stagnant economy and burdensome regulations.
Job targeting programs, also known as market recovery funds, are yet another one of the economic weapons organized labor can deploy against non-union contractors. As part of these programs, unions collect dues which are then used to subsidize “union friendly” contractors. Yet, job targeting programs aren’t just about keeping organized labor’s allies in business; these subsidies put non-union contractors on the defensive, as the union shops are able to lower the gap between union and non-union contractors.
In this case (J.A. Croson Company, 359 NLRB No.2, 2012), the collective bargaining agreement contained a dues-checkoff provision requiring member employers to “deduct and remit to the Union, pursuant to voluntary authorizations signed by unit employees, due in the amount of 1.75 percent of the employees’ gross wages as a “Market Recovery Assessment.” The money collected was then used to fund the union’s “job targeting program, which funneled money to unionized contractors. The purpose of this program was clear: to “lower union contractor’s overall costs to complete targeted projects, enabling union contractors to submit competitive bids.”
In response to the union’s job targeting program, J.A. Croson Company, an ABC member, filed a lawsuit charging that the wage deductions violated state law. The Ohio Supreme Court eventually held that this lawsuit was preempted by the National Labor Relations Act (Act), and an administrative law judge found that Croson’s lawsuit did not violate the Act. The Board, however, reversed the judge’s ruling, holding instead that union job targeting programs are “clearly protected by Section 7 of the Act.” Consequently, the Board also held that Croson’s state court lawsuit was preempted by the Act, and that Croson’s lawsuit did not garner First Amendment protection: Indeed, by merely filing the lawsuit, Croson violated Section 8(a)(1) by interfering with union activity.
As a result of the Board’s J.A. Croson Company decision, the playing field has, once again, been titled in favor of organized labor.
From our friends over at LaborUnionReport, a must-read posting about an Obama-appointee's recent ruling regarding the NLRB's union posters:
Last week, "Federal Judge Amy Berman Jackson approved the union-dominated National Labor Relations Board’s mandate on nearly all private-sector companies to post so-called “union rights posters.” Additionally, Berman Jackson, an Obama appointee to the United States District Court for the District of Columbia, declined to hear a challenge to Obama’s recent NLRB appointments.
In the union rights poster ruling, Berman Jackson ruled that the NLRB did not exceed its statutory authority to require private-sector employers that fall within the scope of the NLRB to post notices to employees advising them of their right to unionize. This means that most companies with two or more employees (outside of the airline or railroad industries) will be required to post the union rights posters (see PDF copy here) on April 30, 2012."
Read the rest of the article over at LaborUnionReport.
Unions need dues to survive, and the Service Employees International Union (SEIU) is certainly no exception. And as the amount of union dues collected across the country continues to plummet, organized labor is devising more and more “innovative” ways to keep its coffers full.
Perhaps unsurprisingly, this campaign to squeeze every last dime out of potential union members—and taxpayers—has found its way to Connecticut.
In-Home Health Care Workers Under Siege
The SEIU has launched an aggressive campaign to collect dues from in-home health care workers. Last December, Governor Malloy signed an executive order paving the way for daycare providers and personal care attendants to collectively bargain. And now, the SEIU is sending innocuous looking union authorization cards to employees’ homes. While the cards ask only if the employees wish to join the union, they do not inform employees of the consequences of replying: If the SEIU receives a majority of all returned cards in its favor, it becomes the exclusive bargaining representative for all of the state's in-home health care employees.
Should these in-home health care workers wind up being represented by the SEIU, Connecticut taxpayers will be de facto paying dues to the SEIU. After all, these in-home caregivers are paid, in part, through a subsidized state program. If chunks of these employees’ subsidized salaries are then passed along to the SEIU, taxpayers will be footing the bill for Organized Labor’s radical political agenda, and its leaders' bloated six figure salaries and out-of-control boondoggles. It’s unlikely that this is the scenario Connecticut taxpayers envisioned when they learned their monies would be subsidizing in-home health care workers.
Bottom Line for Employers
Frightened by underfunded pension plans and declining union membership, the SEIU is getting desperate. But a desperate union is a dangerous union—particularly when the union in question is the SEIU. Employers should view this latest dues-grab as yet another example of how unions are willing to do whatever it takes to remain relevant. And as more and more workers decide union membership isn’t the right choice, organized labor is turning to its political allies (and their access to taxpayer money) for support.
--Ryan O'Donnell is an Siegel O'Connor associate specalizing in union avoidance campaigns.
Last month, National Labor Relations Board Regional Director Jonathan Kreisberg hosted an informational breakfast at the Board’s Region 34 offices in downtown Hartford. This breakfast, while informal, offered attorneys a unique perspective on the current state of the NLRB—at both the regional level, and in Washington D.C.
While Director Kreisberg’s remarks covered a wide-range of topics, employers should pay particular attention to these five points:
- Budget concerns will continue to result in talks of regional downsizing, and, perhaps, even elimination. While Director Kreisberg doesn’t believe Regional 34 is at immediate risk, the cases currently covered by Regional 34 could eventually be split between Boston and New York.
- The NLRB’s case in Register Guard case could be overturned, and has been targeted by the Board’ General Counsel. Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the employer’s email system, including union-related communications. Overturning this case would give unions yet another strong tool to assist in their organizing efforts.
- Social media will continue to be a red-hot issue for the Board. Director Kreisberg discussed the importance of employer’s narrowly tailoring social media polices in accordance with the guidelines offered by both the General Counsel and the National Chamber of Commerce.
- “Non-competitive” claims made by employers at the bargaining table are going to be subject to stricter scrutiny, which will likely include the disclosure of financial information.
- Quickie, or “SNAP,” elections remain a very real (and, for employers, very scary) possibility. While the Board has proposed a rule that would allow such quickie elections to take place, such elections remain a hot-button issue. Indeed, serious questions remain as to whether a three-member Board would even make such a profound change to the National Labor Relations Act
Bottom Line for Employers:
Each of these five issues will have a significant impact on employers. Therefore, it’s important that employers remain update-to-date on these rapidly developing issues—either through consultation with counsel or by checking out one of Siegel O’Connor’s labor and employment seminars. For more information, please contact Bud O’Donnell.
The National Labor Relations Board (NLRB) might not accomplish much in 2012—and for employers across the nation, that’s probably good news.
Current NLRB Member Craig Becker’s term expires on December 31, 2011. Given that NLRB Chairperson Wilma Liebman departed from the board earlier this year, the NLRB is already down to three members; Becker’s departure would leave the Board with only two members.
Toothless in 2012
Based on the recent U.S Supreme Court decision New Process Steel L.P. v. NLRB, Becker’s departure could leave the Board powerless. The New Process Steel court held that the NLRB must have a “quorum of three members” in order to fully exercise its powers. Given the current Board’s ideological activism, its unlikely Republicans will approve another Obama nominee. Consequently, the Board would remain at two members—one member short of a quorum—until after the 2012 presidential elections. Of course, the President could nominate a moderate candidate capable of winning approval from both sides of the aisles. But as the President moves to lockdown his political base in time for the 2012 elections, such compromise seems unlikely.
While the President could fill the vacancy through another recess appointment—Becker was also a recess appointment—the new Republican majority in the House would in turn use pro-forma sessions to keep Congress “technically in session,” thereby preventing “the Obama administration from making any recess appointments.”
So what’s the upshot of all this Beltway brew-ha-ha?
On January 01, 2010, the NLRB will—most likely—be weakened. And given the decisions handed down by the Board since President Obama took office, a toothless NLRB might not be such a bad thing. After spending much of the past three years struggling to respond to newly imposed rules and regulations, the looming Board vacancy will give American businesses a chance to focus on doing what they do best: creating jobs and growing the economy.
Bottom Line for Employers
- Be prepared for some uncertainty regarding the NLRB until after the 2012 presidential elections
- Use the NLRB’s reduced activity to make sure company policies and regulations are in full compliance with the recent deluge of labor-friendly Board decisions.