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    Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more!

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NLRB Loses Challenge to Arizona Law Guarantying Secret Ballot Elections

Posted on September 12, 2012 by smithamundsen

Contributed by Terry Fox

Arizona citizens passed a state constitutional amendment in 2010 guarantying secret balloting in union elections. This citizen initiative was a response to the National Labor Relations Board’s  suggestion it would conduct “card check” elections despite the failure of the Employee Free Choice Act.  When that amendment took effect, the board sued in federal court for a judgment declaring the Arizona Constitutional Amendment was preempted by the National Labor Relations Act. 

The NLRB argued that it alone had the right to determine election issues, and that power was granted by the federal government.  Thus, it asserted the Arizona Amendment was contrary to the National Labor Relations Act because it gave Arizona State courts the right to determine issues in a union election conducted in Arizona. 

In the order issued by U.S. District Court Judge Frederick J. Martone, [2:11-cv-00913-FJM] the court found that the illegality of the Arizona Amendment could not be decided on the face of that amendment.  Instead, the court would require evidence of how, when, and where the Amendment would be invoked.  It pointed out that the NLRB has the discretion to exercise its jurisdiction in election disputes or not.  Arizona argued that its interests in a secret ballot election are “deeply rooted in local feeling and responsibility,” such that a balancing of interests is required to determine if state action offended the regulatory scheme imposed by the NLRA.  That, the court found, requires a factual context.  As such, the court denied the NLRB’s motion for summary judgment and instead entered summary judgment for the state of Arizona. 

Not surprisingly, the Arizona Attorney General Tom Horne issued a press release describing the decision as a “stinging rebuke to an outrageous National Labor Relations Board attack.” To avoid card-check elections organized or sanctioned by the NLRB, states may want to consider enacting similar legislation or constitutional amendment.  Interestingly, three other states passed amendment similar to Arizona’s, but the NLRB only targeted Arizona for litigation. The formal title of the case is National Labor Relations Board v. State of Arizona and Save Our Secret Ballot, et al.

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NLRB’s Ambush (Quickie) Election Rule No Longer in Effect (for now…)

Posted on May 15, 2012 by smithamundsen

As we previously reported in our blog, the NLRB’s ambush (aka “quickie”) election rule went into effect on April 30, 2012.  The rule sought to dramatically shorten the time frame in which a union representation election will take place. In short, the rule limited the issues employers could raise in the pre-election process (i.e. determining which employees are considered supervisors, and which employees constitute an appropriate bargaining “unit” would no longer be permitted before the election took place) and significantly diminished employers’ ability to appeal unfavorable decision-making at the local board level. The net effect forced employers to counter union organizing campaigns in 14-21 days versus the previously set time frame of approximately 42 days. 

Yesterday, May 14, 2012, a U.S. District Court ruled that the NLRB’s Ambush Election Rule is invalid and no longer in effect because no proper quorum of members existed when the rule was voted on and passed.  U.S. Chamber of Commerce et. al. v. NLRB (D.C. Cir. 1:11-cv-02262). 

Effective immediately, NLRB election procedures revert back to how they had been prior to this April 30, 2012 rule making, which means employers can expect an approximate 42 day window before an election, as opposed to 14-21 days.  We expect the NLRB will likely appeal this decision. 

SmithAmundsen’s Labor & Employment Practice Group recently received one of the first quickie election petitions in the United States, and the new rule was indeed decidedly working against employers.  Unfortunately, this issue isn’t quite over… but this is a significant victory for employers who prefer to remain union free in whole or in part.  As always, more detail will follow as new developments arise.

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NLRB’s “Quickie” Election Rule Effective Today – April 30, 2012

Posted on April 30, 2012 by smithamundsen

Contributed by Jeffrey Risch

Today’s the day that the NLRB’s controversial rule to dramatically shorten the time frame in which a union representation election takes place goes into effect. The new rule radically changes the procedures by which the NLRB administers the union election process in the private sector. Through this new rule, union elections will take place in roughly half the time that they have in recent decades.  

In short, the rule limits the issues employers can raise in the pre-election process (i.e. determining which employees are considered supervisors, and which employees constitute an appropriate bargaining “unit” are no longer permitted before the election takes place) and significantly diminishes their ability to appeal unfavorable decision making at the local board level. The net effect will force employers to counter union organizing campaigns in 14-21 days versus the current time frame of approximately 42 days.  

Readers can find more information about the new rule on the NLRB’s official website at: http://www.nlrb.gov/news/board-adopts-amendments-election-case-procedures

Needless to say, this move is extremely controversial within the business community. Anticipating the move, on December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a federal lawsuit seeking to enjoin the NLRB from enforcing the rule.   

The rule was published in the Federal Registry on December 22, 2011 by Chairman Mark Gaston Pearce (D) and outgoing Member Craig Becker (D) without the agreement of Member Brian E. Hayes (R).   

Because of these new time restraints, employers (who prefer to remain union-free) should immediately contact their labor law counsel and discuss implementing an IMMEDIATE RESPONSE PLAN if and when a labor union petitions for recognition.  Despite legal actions filed to prevent this rule from going forward, this rule is in place for now…

SA’s Labor & Employment Law Group will keep its clients and contacts updated on any significant future developments.

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Federal Court Allows New Labor Poster Requirement to Go Into Effect April 30, 2012

Posted on March 5, 2012 by smithamundsen

Contributed by Jeff Risch

Despite an aggressive and well coordinated legal challenge on behalf of the employer community, private employers subject to the National Labor Relations Act (NLRA) — which is just about every private employer - will soon be required to post written notice to its employees about their rights to organize and form labor unions.  A federal district court judge in Washington, D.C. ruled on March 2, 2012 that the National Labor Relations Board (“Board”) has the authority to promulgate and enforce a rule requiring most private employers to display the new poster entitled “Employee Rights Under the National Labor Relations Act” National Association of Manufacturers v. NLRB.

The rationale behind the bold maneuver by the Board centers on its belief that employees are simply unaware of their rights under federal labor law and employers should be required to inform them. The Board created its own rule on the subject under its statutory authority to adopt “such rules and regulations as may be necessary to carry out the provisions of [the NLRA].”

Fortunately for employers, the Board’s attempt to sanction employers who fail or refuse to post the required posting notice was declared unlawful by the federal district court. The Board attempted to harm employers who failed to display the poster by way of: (1) finding the failure to post the required notice to be an unfair labor practice (i.e. holding that such conduct would be deemed unlawful interference with, restraint, or coercion of employees in the exercise of their rights under the law); and (2) tolling the standard 6-month statute of limitations for filing unfair labor practice charges against employers that fail to post the notice.

However, the district court did not rule out the possibility that failure to post could be considered and used as evidence of an unfair labor practice: “[N]othing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.”

While other legal challenges still exist and are pending, this recent decision reminds employers to be ready to post come April 30, 2012.

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Employers Beware of the Burden of Claiming Employees are Not Entitled to Back Pay Based on Their Immigration Status in an NLRB Hearing

Posted on February 3, 2012 by smithamundsen

Contributed by Sara Zorich

The National Labor Relations Board (NLRB) has raised the bar making it more difficult for employers to defend NLRB claims for back pay based on the affirmative defense that the employee is not authorized to work in the United States.  The NLRB recently held that an employer must articulate with particularity their basis for claiming that an employee is not entitled to back pay based on the employee’s immigration status and general assertions are insufficient to satisfy the employer’s burden.  (See Flaum Appetizing Corp et. al., 357 NLRB No. 162, Dec. 30, 2011).  In Flaum, the majority held that the employer was not entitled to discovery, the ability to subpoena documents or examine witnesses on the immigration status of the employees unless and until the company had submitted specific factual evidence in support of its position that the employees were not authorized to work in the United States.  Thus, employers should be aware that the NLRB will most likely require the employer to proffer extensive evidence of the employee’s alleged undocumented status prior to entertaining discovery on the issue.

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Pro-Union NLRB Contradicts U.S. Supreme Court: Declares Employee Class-Action Waivers Violate Labor Law

Posted on January 11, 2012 by smithamundsen

Contributed by Jeff Risch

On January 3, 2012, the NLRB held that a nationwide home builder committed an unfair labor practice under the National Labor Relations Act (NLRA) by implementing a mandatory arbitration agreement that waived the rights of employees to participate in class or collective actions (D.R. Horton Inc. and Michael Cuda, 357 NLRB 184, 1/3/11). In short, the NLRB held that employers may not compel employees to waive their right to collectively pursue litigation of employment claims in all forums, arbital and judicial.

Michael Cuda, a superintendent for Horton, claimed that he and other similar superintendents for the company were prevented from pursuing a wage and hour class-action/collective-action under the Fair Labor Standards Act (FLSA); alleging that they were misclassified as exempt employees.  Horton required Cuda and other employees to execute an arbitration agreement whereby they individually agreed to forego class-action relief of all types relating to any employee dispute.  NLRB Chairman Mark Gaston Pearce (D) and Member Craig Becker (D) found that this mandatory arbitration procedure violated Section 8(a)(1) of the NLRA because it interfered with the statutory right of employees to engage in “protected concerted activity for their mutual benefit.”

In so holding, the NLRB took issue with the U.S. Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion, U.S., No. 09-893, 4/27/11.  In Concepcion, the court, in a 5-4 decision, enforced AT&T’s customer cellular telephone contract that provided for mandatory arbitration on an individual basis and prohibited class action proceedings despite conflicting California state law.  The court essentially held that the Federal Arbitration Act (FAA) preempts state laws that prohibit contracts from preventing class-action lawsuits.  In judicial decisions that have since followed Concepcion, courts throughout the U.S. have concluded that employees may waive class-action rights by agreeing to individualized arbitration through employment arbitration agreements.  

In distinguishing Concepcion, the NLRB held that employment arbitration agreements (unlike consumer contracts) cannot prevent employees from waiving their rights protected by the NLRA (i.e. collectively pursue wage/hour claims and/or disputes over terms and conditions of employment). The NLRB also reasoned that Concepcion involved a conflict between the FAA and a California state law, which implicated the U.S. Constitution’s Supremacy Clause; whereas in D.R. Horton the Supremacy Clause was not called into question as the issues involved purely federal statutes (FAA vs. the NLRA).

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NLRB PASSES “AMBUSH ELECTION” RULE TO END 2011

Posted on December 27, 2011 by smithamundsen

Contributed by Jeffrey Risch

Big Labor backed portions of a controversial rule to dramatically shorten the time frame in which a union representation election takes place were passed by the National Labor Relations Board (NLRB) on December 22, 2011 by Chairman Mark Gaston Pearce (D) and Member Craig Becker (D) without the agreement of Member Brian E. Hayes (R).  The new rule radically changes the procedures by which the NLRB administers the union election process in the private sector.  Through this new rule, union elections will take place in roughly half the time that they have in recent decades. 

In short, the rule limits the issues employers can raise in the pre-election process and significantly diminishes their ability to appeal unfavorable decision making at the local board level. The net effect will force employers to counter union organizing campaigns in 14-24 days versus the current time frame of approximately 42-45 days. 

Readers can find more information about the new rule on the NLRB’s official website at: https://www.nlrb.gov/news/board-adopts-amendments-election-case-procedures

Needless to say, this move is extremely controversial within the business community. Anticipating the move, on December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a federal lawsuit seeking to enjoin the NLRB from enforcing the rule. 

Stay tuned… as 2012 already looks like another bumpy ride…

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The NLRB and Boeing: The Battle Reaches Congress

Posted on October 18, 2011 by smithamundsen

Contributed by Larry Smith

In addition to dealing with the debt crisis, Congress has before it House Bill H.R. 2587, the “Protecting Jobs from Government Interference Act.” This bill is a response to the National Labor Relations Board complaint filed against Boeing. As you know, this NLRB action attempts to block Boeing from opening a plant in South Carolina as opposed to expanding its operations in the state of Washington. Of course, Boeing’s operations in Washington are unionized and South Carolina presents Boeing with the opportunity to employ a non-union workforce. 

The NLRB’s complaint against Boeing has very wide reaching ramifications. Not only is it easily perceived as an invasion of the corporate governance function, but it may also lead to companies considering foreign locations for plant facilities as opposed to “made in America” locations. 

The text of the bill is as follows: 

H.R. 2587 

Section 10(c) of the National Labor Relations Act (29 U.S.C. 160) is amended by inserting before the period at the end of the following: “Provided further, that the Board shall have no power to order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment, to rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or employer who shall be engaged in production or other business operations, or to require any employer to make an initial or additional investment at a particular plant, facility or location.” 

The amendment made by section 2 shall apply to any complaint for which a final adjudication by the National Labor Relations Board has not been made by the date of enactment of this Act.

The bill was introduced by Representatives Scott and Gowdy from South Carolina. 

In the political framework that is Washington, D.C., it remains to be seen if and when this bill will reach the House of Representatives’ floor. It has been passed out of committee. Of course, the remaining question is; what are the odds the Senate will pass this bill? It does, however, reflect a considerable backlash against the NLRB complaint against Boeing. That sentiment is more pervasive than just in the state of South Carolina, the proposed site of the Boeing plant. 

As of July 28th, there is still an ongoing battle between NLRB Acting General Counsel Lafe Solomon and the House Oversight and Government Reform Committee about NLRB’s failure to comply with a July 26th deadline to respond to a subpoena from the Committee to NLRB. Needless to say, the Republicans and the Democrats on the committee have argued about the boundaries of the subpoena. The response by the NLRB to date has not shown the reasoning behind the decision to file the complaint against Boeing.

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