Citing concerns raised by small businesses, the Occupational Safety and Health Administration (OSHA) has temporarily withdrawn a proposal to restore a column for work-related musculoskeletal disorders on employer injury and illness logs. OSHA will convene a meeting jointly with the Small Business Administration’s Office of Advocacy to is seeking additional input from the small business community on the impact of the proposed rule. Interested businesses will have the opportunity to participate in the meeting through electronic means, such as telephone and/or a Web forum, and details of the meeting will be announced within 30 days.

Under current regulations, most small businesses are not required to keep records of workplace injuries and illnesses, including work-related musculoskeletal disorders (MSDs), on the OSHA Form 300, Log of Work-Related Injuries and Illnesses. OSHA’s injury and illness logs previously included a column for repetitive trauma disorders, such as noise and many kinds of MSDs, but when the OSHA separated noise and MSDs into two columns, the MSD column was deleted in 2003 before the provision became effective. The proposed rule would not change existing requirements about when and under what circumstances employers must record MSDs, but would restore the MSD column to the Form 300 and require employers to place a check mark in the new column for all MSDs.

The Department of Labor’s Office of Labor-Management Standards (OLMS) has announced the initiation of a new Persuader Reporting Orientation Program (PROP) designed to assist employers and labor relations consultants in complying with the reporting obligations of section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA).

Section 203 requires employers and labor relations consultants to file reports with OLMS concerning plans or agreements to persuade employees about their rights to organize and bargain collectively. Certain exception apply to the reporting requirements, including the “advice exception,” under which no report is required covering the services of a consultant or other person by reason of his or her giving or agreeing to give advice to an employer, or representing or agreeing to represent the employer in administrative, arbitral, or court proceedings or in collective bargaining. 

Using the contact information for employers and their representatives obtained from representation petitions filed with the National Labor Relations Board, OLMS will send an orientation letter to the employers and to their representatives with information about potential reporting obligations under the LMRDA, as well as reporting forms and instructions.

On January 27, 2011, the Republican state attorneys general of Arizona, South Carolina, South Dakota, and Utah sent a joint response to NLRB Acting General Counsel Lafe Solomon pledging to defend recent state constitutional amendments barring the use of the card check process in union elections. On January 13, Solomon had threatened legal action against the four states.

In November, voters in those four states passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111^th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.

Solomon warned the attorneys generals of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support.

In support of the Republican attorneys general, Sen. Jim DeMint (R-S.C.) and 17 Republican co-sponsors, introduced the Secret Ballot Protection Act (S. 217).  Mirroring the state constitutional amendments, the bill would ban the card check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats maintaining their Senate majority, the legislation faces an uphill battle to obtain the required 60 votes needed for cloture in the Senate.

On January 26, 2011, President Obama re-nominated Craig Becker to a full five-year term as a member of the National Labor Relations Board. Becker, who has served on the Board via recess appointment since March 2010, has previously been nominated by President Obama on multiple occasions in 2009 and 2010, but each time failed to overcome Republican-led filibusters. As a recess appointee, Becker will leave the Board at the end of 2011. Senate confirmation to a full term, unlikely in light of recent gains by Senate Republicans in the 2010 election, would extend his term through the end of 2014.

Becker, the former associate general counsel for the Service Employees International Union (SEIU), has drawn fire from business groups and Senate Republicans since first being nominated by President Obama in July 2009. After the Senate returned his nomination without acting upon it at the end of the 2009 session, was re-nominated him in January 2010. In February 2010, in a rare NLRB nomination hearing before the Senate HELP Committee, Becker was aggressively questioned about his prior pro-labor writings, alleged conflicts of interest relating to his previous employment with the SEIU and the AFL-CIO, and allegations that he would administratively implement pro-labor regulations while serving on the board, including elements of the proposed Employee Free Choice Act (”EFCA”). Becker’s testimony did not assuage Senate Republicans and a cloture vote on his nomination failed on February 9, 2010.

With the Board down to two members, President Obama on March 27, 2010 provided recess appointments to Becker and Democratic labor lawyer Mark Pearce, who has since been confirmed to a full term. As a Board member, Becker has been a consistent pro-labor vote, but has not pursued sweeping EFCA-style policy changes via rule-making, as some critics alleged he would. Becker also has recused himself from a number of cases involving SEIU, its locals, and the AFL-CIO, but his critics have urged recusals from more cases involving SEIU and AFL-CIO affiliates.

The NLRB currently has a 3-1 Democratic majority, including Becker. Earlier this month, President Obama nominated Republican NLRB lawyer Terence F. Flynn to the fill the Board’s final vacancy. Flynn’s nomination awaits Senate action.

In December 2010, New York State strengthened wage payment protections for employees with the Wage Theft Prevention Act, which will go into effect on April 9, 2011. The Act expands the right of employees to seek civil and criminal remedies against employers who pay them less than the wages to which they are entitled. 

Notably, the legislation increases liquidated damages on unpaid wages from 25% to 100% in court actions. To facilitate collection of wages ordered to be paid, the Act automatically increases the total judgment amount by 15% if an employer defaults on payment for more than 90 days. The Act also authorizes public posting of employer violations, and extends criminal penalties to cover non-payment of minimum wage or overtime compensation. Those penalties include fines ranging from $5,000 to $20,000 and imprisonment for up to a year.

The Act increases protection for employees who report wage law violations by assuring that employee complaints need not cite specific labor law provisions to trigger retaliation protections.  In addition to allowing for liquidated damages of up to $10,000 for victims of prohibited retaliation, the Act provides the Commissioner with all necessary tools, including ordering reinstatement, to remedy retaliation.

The Act also imposes new notice and record-keeping requirements, and sets out penalties for employers who fail to comply.

In a January 20, 2011 memorandum to the regional offices of the National Labor Relations Board (”NLRB” or “Board”), NLRB Acting General Counsel Lafe Solomon proposed that the NLRB adopt a new approach for deferral to arbitration decisions concerning NLRA Section 8(a)(1) interference and Section 8(a)(3) discrimination cases.

The memorandum (Memorandum GC 11-05) proposed changing the burden of proof for deferral, shifting the burden to the party requesting deferral. Under the new proposed test, the party requesting deferral would have to demonstrate (1) the contract at issue incorporated the statutory right at issue or otherwise presented the statutory issue to the arbitrator, and (2) in determining the issue, the arbitrator correctly and adequately spelled-out and applied the appropriate statutory principles. If such showing were made, Solomon proposed that the Board should defer to the arbitration award unless the award was “clearly repugnant” or inconsistent with the NLRA.

Solomon, who was nominated by President Obama earlier this month to a four-year term as General Counsel, explained that such an approach would ensure that substantive outcomes from arbitrations would not depart from those the Board would reach, protecting statutory requirements and protections. In making this recommendation, Solomon referenced language in NLRA Section 10(a), stating that the NLRA’s authority “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise,” and argued that the provision limited the ability of parties to enter into private agreements or alternative dispute resolution that would alter protected NLRA rights. Nevertheless, Solomon noted Congress has favored private resolution of labor disputes and provided the Board with significant leeway to defer to arbitration procedures, as long as the individual rights protected by Section 10(a) were respected.

Solomon’s memorandum also referenced 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009), a recent Supreme Court opinion which held that unions are able to mandate arbitration to resolve statutory discrimination claims - thus waiving employee rights to bring such cases in a particular forum - provided that the collective bargaining agreement expresses the waiver in clear and unmistakable terms and gives the arbitrator the authority to decide the statutory issue. Solomon noted that the NLRB’s existing standard for deferral set forth in Olin Corp., 268 N.L.R.B. 573 (1984), was in tension with 14 Penn Plaza, as it permitted deferral to arbitration awards that differed significantly from NLRB standards, requiring only that the arbitrator considered facts relevant to resolve contractual and statutory issues. The new standard would resolve this tension by ensuring that the arbitrator adequately considered statutory rights and resolved unfair labor practice complaints consistent with the NLRA.

In letters to four state attorneys general released on January 13, 2011, NLRB Acting General Counsel Lafe Solomon threatened to sue four states that recently passed state constitutional amendments banning the use of the card check process in union elections.

In November 2010, voters in Arizona, South Carolina, South Dakota, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111^th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.

Solomon warned the attorneys generals of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. Solomon asked the four state attorneys general to halt voluntarily the amendments from becoming law or to prevent reliance on those amendments.

President Obama resubmitted two nominations to the Senate for labor posts after the Senate failed to act upon the nominations before the close of the 111^th Congress. On January 5, Obama resubmitted the nominations of Leon Rodriguez to be Administrator of the Department of Labor’s Wage and Hour Division (WHD) and Thomas M. Beck to be a member of the National Mediation Board (NMB).

Rodriguez was originally nominated to be WHD Administrator on December 3. Currently, Rodriguez serves as Deputy Assistant Attorney General and Chief of Staff in the Civil Rights Division at the Department of Justice.  Rodriguez is Obama’s second nominee for the position of WHD Administrator after his first nominee, Lorlei Boylan, withdrew herself from consideration in October 2009. 

Beck was originally nominated to serve on the NMB in September. He is slated to replace fellow Republican Elizabeth Dougherty, whose term on the NMB ended in June. Dougherty continues to serve pending her replacement. Currently, Beck serves as a member of the Federal Labor Relations Authority (FLRA), to which he was nominated by President Bush in October 2008.

On January 5, 2011, President Obama announced plans to nominate Terence F. Flynn to a vacancy on the National Labor Relations Board (”NLRB”) and Lafe E. Solomon to serve as NLRB general counsel.

Flynn, the current chief counsel to NLRB member Brian Hayes and former chief counsel to former NLRB member Peter Schaumber, has a depth of experience in cases arising under the National Labor Relations Act. A graduate of  Washington and Lee University School of Law and the University of Maryland, College Park, Flynn was previously a counsel in Crowell & Moring LLP’s labor and employment group from 1996 to 2003, with earlier stints at the law firms David Hagner Kuney & Krupin and Reid & Priest. Flynn would take Schaumber’s former seat, which was vacated upon the expiration of Schaumber’s term in August 2010.

Solomon, a long-time NLRB attorney, has served as acting general counsel since June 2010, when his predecessor, Ronald Meisburg, stepped down for a private sector position. Solomon has worked continuously for the NLRB for almost four decades, excepting a short break to attend law school at Tulane University in the mid-1970s. Starting as a field examiner in 1972, Solomon has served in a number of NLRB positions, including, most recently, head of the NLRB’s Office of Representation Appeals. In his time at the NLRB, he has worked for ten Board members, including current NLRB chairperson Wilma Liebman. General counsel is the Board’s highest-ranking legal position, with important investigative and prosecutorial functions, including supervising the NLRB’s regional offices, directing policy concerning the issuance of complaints, and enforcing Board decisions.