Applying its rarely-used rulemaking powers, the NLRB published a final rule on posting that applies to unionized and non-unionized workplaces alike. Addressing the objections of various commenters over an eight-month comment period, the final rule omitted requirements obligating employers to distribute notice electronically and incorporated new notice language clarifying the right of employees to abstain from engaging in statutorily-protected activity under the NLRA.
Following the publication of the final rule on August 30, 2011, the National Association of Manufacturers and the National Federation of Independent Business each filed suit against the NLRB, asserting that the rulemaking exceeded the Board’s authority and violated their First Amendment rights. The cases were consolidated in Nat’l Assoc. of Manufacturers v. NLRB, No. 1:11-cv-01629 (D.D.C.). The NLRB’s postponement followed a request of the presiding judge in that litigation, who asked that the Board push back the effective date so that she would have more time to evaluate the parties’ arguments. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have also challenged the final rule in a separate action on similar grounds, in federal court in South Carolina in Chamber of Commerce v. NLRB, No. 2:11-cv-02516 (D.S.C.).
Congressional Republicans have also challenged the final rule, introducing the “Workforce Democracy and Fairness Act” (H.R. 3094) in the House in October and challenging the rule, along with other recent Board actions in a recent hearing by the House Small Business Committee.
Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.]]>
Congressional Republicans and business interests have been highly critical of Solomon’s tenure as Acting General Counsel, most notably his role in challenging various new state constitutional amendments banning the use of the card check process in union elections and for his role in initiating an unfair labor practice complaint against Boeing Company for purportedly engaging in anti-union discrimination in locating a new non-union production line in South Carolina. Solomon has been nominated to a full term as General Counsel, but his nomination remains stalled in the Senate.
Upon expiration of Becker’s term, the Board will be composed of Democratic chairman Mark Pearce and Republican member Brian Hayes. The Senate has not taken action on the nomination of Republican NLRB lawyer Terence Flynn and Senate Republicans have repeatedly blocked Becker’s nomination to a full five-year term.]]>
The changes implemented by this rulemaking include adding employee protections against retaliation by nationally recognized statistical rating organizations, as defined by the Securities Exchange Act, or their officers and employees. They also include extending the filing period for retaliation complaints from 90 to 180 days after the date on which the violation occurs, or the employee becomes aware of the violation. And the interim final rule grants parties a right to a jury trial in district court actions brought under Sarbanes-Oxley’s “kickout” provision, which provides for de novo review in the appropriate district court, regardless to the amount in controversy, if the Secretary of Labor has not issued a final decision within 180 days of the filing of a complaint.
In addition to addressing these changes under Dodd-Frank, the new rule amends OSHA’s procedural requirements under Sarbanes-Oxley to make them more consistent with OSHA’s procedural rules under other whistleblower statutes, such as the Surface Transportation Assistance Act, the National Transit Systems Security Act, and the Federal Railroad Safety Act. Pursuant to these revisions, whistleblower complaints no longer need to be in writing or “include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” Instead, the new rule provides that complaints “need not be in any particular form,” may be made orally or in writing, may be filed in any language, and may be filed by any person on the employee’s behalf.
Similarly, the new rule seeks to make the complainant’s burden of proof consistent with OSHA’s treatment of claims under other whistleblower statutes. Sarbanes-Oxley does not address the evidentiary standard that applies to a complainant’s showing that his or her protected activities were a contributing factor in an adverse employment action. Instead, it simply provides that the Secretary may find a violation only “if the complainant demonstrates” that protected activity was a contributing factor in the alleged adverse action. The new OSHA rule clarifies that the complainant must prove by a “preponderance of the evidence” that his or her protected activity contributed to the adverse action. If the complainant makes this showing, the burden shifts to the employer to prove by “clear and convincing evidence” that it would have reached the same decision even in the absence of the protected activity.
The new interim final rule also revises the regulations governing reinstatement. Whereas the prior regulations provided that reinstatement would not be appropriate where the respondent establishes that the complainant is a security risk. Under the new rule, the determination of whether reinstatement is inappropriate in each instance will be made “on the basis of the facts of each case and the relevant case law.” Moreover, where it deems appropriate, OSHA may now order “economic reinstatement,” instead of the usual remedy of preliminary reinstatement. Such economic reinstatement provides the complainant with the same pay and benefits that he received prior to his termination, or front pay, but does not require the complainant to actually return to work. An employer does not have a statutory right to choose economic reinstatement, and does not have a statutory right to recover the costs of such an economic reinstatement if the employer ultimately prevails in the whistleblower adjudication.
Interested parties can submit comments concerning the rulemaking within 60 days of its publication in the Federal Register today, November 3, 2011.]]>
This regulation implements a 2009 executive order that President Obama signed shortly after entering office (E.O. 13494). The stated goal of that executive order was to promote economy and efficiency in government contracting by ensuring that certain costs not directly related to contractors’ provision of goods or services to the government were not reimbursable. To achieve this goal, the executive order specifically singled out contractors’ costs in persuading employees concerning the exercise of their collective bargaining rights.
The new regulation, which is effective as of December 2, 2011, amends FAR 31.205-21, the cost principle addressing labor costs. Currently, this cost principle states that costs incurred in maintaining satisfactory relations between the contractor and employees, including the costs of shop stewards, labor management committees, employee publications, and other related activities, are allowable. The amendment does not alter the existing language or change contractors’ ability to seek reimbursement for non-persuader activities aimed at maintaining relations with employees. This includes collective bargaining costs that do not implicate persuader activities, such as paying employees who participate in the collective bargaining process, or the development, negotiation, and enforcement of neutrality agreements.
Instead, the rule adds a new paragraph to FAR 31.205-21, stating that costs associated with persuading employees to exercise or not to exercise the right to organize and bargain collectively are not reimbursable. The regulation further provides examples of specific activities that constitute unallowable costs if they are engaged in for the purpose of persuading employees concerning the exercise of their collective bargaining rights, including: ”(1) [p]reparing or distributing materials; (2) [h]iring or consulting legal counsel or consultants; (3) [m]eetings (including paying the salaries of the attendees at meetings held for this purpose); and (4) [p]lanning or conducting activities by managers, supervisors, or union representatives during work hours.”
Opponents of this new rule argued that the proposed restrictions will act as an effective gag order and will significantly chill the exercise of employers’ right to engage in speech that does not violate the National Labor Relations Act (NLRA). The DoD, GSA, and NASA deflected this criticism, arguing that the new rule “does not prohibit or otherwise regulate persuader activities.” They asserted that the rule merely identifies types of costs that are not allowed for reimbursement under the well-established Federal procurement scheme, which already contains mechanisms for submission to and review of contract costs to avoid unnecessary expenditures, while preserving the contractor’s freedom to spend its own funds, including funds received from the government, however it wishes.
Separately today, the DoD, GSA, and NASA also adopted as final, without change, an interim rule that requires federal contractors to post a notice informing their employees of their rights under federal labor laws, including the NLRA. This rule, which is effective as of today, implements related Department of Labor regulations. It also arises out of an executive order signed by President Obama shortly after his inauguration (E.O. 13496). Copies of the required notice are available for download or order on the DOL’s website.]]>
Since the rule was issued in August 2011, the NLRB has received inquiries demonstrating confusion about which employers are covered by the rule. In response to the confusion, the Board postponed the implementation date “to allow for enhanced education and outreach to employers,” particularly small- and medium-sized businesses. No changes in the form or content of the notice will be made.
The rule has also generated lawsuits challenging the Board’s authority to require employers to post the notice and to impose penalties for noncompliance. Plaintiffs include the U.S. Chamber of Commerce, the National Federation of Independent Business, and the National Association of Manufacturers.
The NLRB Press Release regarding the delayed implementation date is available here.]]>
The first case, Lamons Gasket Co., 357 NLRB No. 72, reversed the Board’s 2007 decision in Dana Corp., 361 NLRB 434 (2007), and returned to prior policy which bars an election petition for a reasonable period of time after an employer voluntary recognizes a representative based on a showing of the representative’s majority status. In Dana Corp., the Board modified the “recognition bar” doctrine by establishing a 45-day “window period” for employees to file a petition for an election after being notified that their employer had voluntarily recognized a union based on the union’s showing of majority support.
In overruling Dana Corp., the Board returned to the policy established in Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), under which an employer’s voluntary recognition of a union, based on a showing of majority support, prohibits a petition for an election for a “reasonable period of time.” The Board defined a reasonable period of time as no less than six months after the parties first bargaining session and no more than one year.
The Board’s decision is intended to give new bargaining relationships an opportunity to succeed by barring challenges to that relationship. The Board noted that the decision in Dana Corp., was based on a suspicion that “employee choices which must precede any voluntary recognition are often not free and uncoerced,” which the Board claimed to be “unfounded.” In addition, the Board found that, during the past four years of practicing the Dana Corp. procedures, the procedures themselves proved unnecessary and in contravention of the Act.
Chairman Liebman, and members Becker and Pearce joined in the order. Member Hayes dissented, arguing that his colleagues “failed to provide any reasoned explanation why the policies they advocate are preferable to the reasonable policies established in the precedent they now overrule.”
The second case, UGL-UNICCO Service Co., 357 NLRB No. 76, prohibits challenges to an incumbent union following a change in ownership by re-establishing the “successor bar” doctrine that was overturned in the 2002 MV Transportation decision. The Board’s decision is the latest decision in a decades-long battle over the successor bar that evolved from the Board’s 1975 decision in Southern Moldings, Inc. and has been overruled on several occasions largely along partisan lines.
The Board held that where a successor employer has recognized an incumbent union, the union is entitled to a “reasonable period of bargaining,” during which it has an irrefutable presumption of majority status. As in the Lamons Gasket decision, the Board defined a reasonable period of bargaining to be no less than six months and no more than one year. Here, however, the Board established five factors to determine if a reasonable period has elapsed after six months: (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues that are being negotiated; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse.
Member Brian Hayes vigorously dissented from the decision claiming that it protects “labor unions, not labor relations stability or employee free choice” by providing unions protections beyond what the law requires or provides.
Last, in Specialty Healthcare 357 NLRB No. 83 the Board created a heightened standard for any employer contending that employees in a petitioned-for unit should be placed in a broader bargaining unit. Employers must now show that the petitioned-for unit shares an “overwhelming community of interest” with the larger unit of employees. Specifically, where a union seeks an election in a unit of employees which is readily identifiable as a group, and where the Board finds that the employees share a “traditional community of interest,” the petitioned-for unit shall be deemed appropriate for bargaining unless the Employer can demonstrate that the employees it would add to the unit share an “overwhelming community of interest” with the petitioned-for unit.
Member Hayes criticized the majority’s ruling for encouraging “union organizing in units as small as possible,” and for making it “virtually impossible” for employers to oppose such organizing efforts. He warned that the resulting fragmentation of the workforce would lead to increased collective bargaining costs and compromise labor relations stability.]]>
Although the two-member Board, which included Liebman, issued nearly six hundred decisions between late 2007 and 2010, its actions were summarily invalidated by the Supreme Court in New Process Steel L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010). The Court held in New Process Steel that the Board must have a quorum of three members in order to fully exercise the Board’s powers. In response to the decision, President Barack Obama recess-appointed Becker and Member Mark Pearce in July 2010 to return the Board to a full quorum. With Liebman’s departure, Pearce has been designated as the new Board Chairman.
Since that time, House and Senate Republicans have been highly critical of the Democratic majority Board’s recent rulemaking and adjudications, most notably a recent rule requiring employers to post notices of employees’ NLRA rights, a proposed rule that would affect the timing and process for union elections, and a NLRB case filed again Boeing, Inc. for allegedly relocating work from Washington State to South Carolina in order to avoid potential future strikes. In upcoming days and weeks, House Republicans are expected to vote on legislation to halt the Boeing case and overturn various Board rulemaking initiatives.
Meanwhile, the possibility of another powerless two-member Board has become increasingly likely, as Republicans are likely to prevent votes on Obama Administration nominees to replace Liebman and Becker and to keep the House of Representatives in pro forma session to avoid additional recess appointments. Although some legal experts have questioned the effect of House pro forma sessions on the Senate, which would actually vote on Board nominations, such a move arguably could prevent the Board from acting indefinitely. A return to two members would not prevent NLRB regional offices from conducting representation elections and handling unfair labor practice cases, but would halt any appeals of those cases to the Board, as well as the Board’s ability to issue final rules.
Liebman, whose term ended on August 27, 2011, was first appointed to the NLRB as a Member by President Bill Clinton in October 1997 and was confirmed the following month. President George W. Bush appointed her to two additional terms in 2002 and 2006. President Obama designated her Chairperson on January 20, 2009. The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. The fifth seat on the Board has been vacant since the expiration of former Member Peter Schaumber’s term in August 2010. In January 2011, President Obama nominated Terence Flynn, who is currently Hayes’ Chief Counsel, to fill the vacancy created by Schaumber’s departure, but that nomination has not been acted on yet by the Senate.]]>
The final rule requires employers to post an 11-by-17 inch poster in the workplace and it also requires covered employers to post the notice on an internet or intranet site, if personnel rules and policies are customarily posted there. However, employers will not be required to distribute the posting by email, Twitter or other electronic means. The poster will be provided for download on the NLRB website and available at no charge in hard copy form at NLRB regional offices. The NLRB announced that the posters will available by November 1, 2011.
Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.
An NLRB fact sheet regarding the new posting requirements can be found here.]]>
A review of 14 social media cases investigated by the Office of General Counsel that were submitted by NLRB regional offices to the NLRB’s Division of Advice for guidance, the report covered several issues relevant to the modern workplace. The cases under consideration included an examination of whether employee Facebook and Twitter postings were protected concerted activity, whether Facebook or Youtube videos of interviews with non-union workers could be unlawful and coercive, and whether various employer social media policies were lawful.
Nine of the 14 cases referenced in the report concerned Facebook or Twitter posts by employees, considering whether such postings were considered protected or concerted activity. In four of those cases, the NLRB’s Division of Advice concluded that employees engaged in protected concerted activity. In five, the Division found that the communication was not protected. In examining these cases, the Division applied its traditional, non-social media precedents. Whether a communication is protected depends not on whether it is communicated via Facebook versus via leaflet, but whether the employee acted in concert with or on behalf of other employees versus whether she acted only on her own behalf. The former is protected, the latter not.
In one case, the Division concluded four employees engaged in protected concerted activity where they posted on Facebook to defend a co-worker eventually terminated for “poor performance.” Even though the Facebook posting included profanity, the Division noted that this feedback, which was in response to a request from the co-worker prior to her termination meeting with management, “directly implicated terms and conditions of employment” and was “textbook” protected concerted activity. Similarly, in another case, the Division found protected concerted activity where several restaurant employees complained about their employer’s withholding policies on Facebook and pledged to raise the issue at an upcoming meeting with management.
In contrast, the Division found no concerted activity where employees of another restaurant complained about their employer’s tipping policy on Facebook but never raised the issue with management. In other cases, the Division held that personal criticism of managers, on either Facebook or Twitter, were not protected where such comments expressed frustration but did not seek to engage co-workers in discussion or future meetings to address the concerns.
Several cases held employer social media policies invalid for various reasons, including but not limited to, categorical bans on depicting the employer in any media without advance permission or bans on “inappropriate” postings that employees “would not want their manager or supervisor to see.” The Division reasoned that these sweeping prohibitions threatened protected rights under Section 7 of the National Labor Relations Act, including criticism of employer policies or working conditions. The Division, however, upheld an employer media relations and public affairs policy that limiting employee contacts with the press, concluding that the rule was intended to prohibit employees from speaking to reporters on their own behalf, rather than to engage in protected concerted activity.
Finally, the report also addressed union coercion in a case in which union organizers visited a non-union jobsite and questioned the employees about their immigration status. The Division concluded that the videos, which were posted to Facebook and Youtube, were unlawful coercive conduct in violation of Section 8(b)(1)(A) of the NLRA.]]>
The DOL also plans to change the rules of practice and procedure for its administrative proceedings. While the original procedural rules were modeled on the Federal Rules of Civil Procedure, these rules have not been amended to account for the multiple amendments to the Federal Rules. In explaining the need to address the procedural rules, the DOL further noted that “the nature of litigation has also changed [since the current rules’ implementation], particularly in the areas of discovery and electronic records.” Further, while the subject of administrative proceedings used to be primarily workplace injury and disease, now claims are more often “whistleblower and workplace retaliation claims” that “require more structured management and sophisticated motions and discovery procedures than our current regulations provide.”
The regulatory agenda also includes several significant proposed rules whose development has been underway for some time. The agenda notes the DOL’s intention to move forward with narrowing the “advice exemption” to the Labor Management Reporting and Disclosure Act ( “LMRDA” ) and expanding the definition of “persuader activities” under the Act. The DOL’s proposed changes to the LMRDA will increase these reporting requirements. Currently, the LMRDA requires the disclosure of agreements with persons who work on behalf of employers to persuade employees to exercise or not exercise their rights to organize or collectively bargain, or to persuade employees of how they should exercise such rights. See Washington Labor & Employment Wire » DOL to Publish Proposed Rule Expanding Reporting Requirements for Labor Consultants and Persuaders. The agenda also includes moving forward with a proposed rule published on June 22 that revises the list of industries required to record workplace industries and illnesses and makes reportable all amputations and in-patient hospitalizations resulting from work-related incidents. See Washington Labor & Employment Wire » OSHA Proposal Would Revise List of Industries Required to Record and Report Worker Injuries and Illnesses.
Similarly, the agenda indicates that the DOL is moving forward with multiple other OSHA initiatives already underway, including the development of a rule requiring employers to implement an Injury and Illness Prevention Program. OSHA is also in the early stages of formulating rules to regulate workplace exposure to beryllium and food flavorings containing diacetyl and also plans on holding hearings on occupational exposure to crystalline silica.
Finally, this fall OSHA plans to issue two final rules of note. First, in September OSHA will issue a final rule updating the construction industry standard for the construction of electric power transmission and distribution lines. This rule is intended to “prevent fatalities, add flexibility to the standard, and update and streamline” the existing rule. In conjunction with this rule, OSHA will also revise general industry requirements to ensure that the requirements for work performed in the maintenance of electric power and transmission and distribution installations are consistent with construction requirements. Second, OSHA is scheduled to promulgate a rule protecting construction workers in confined spaces in November. The current rule governing work in confined spaces applies only to “general industry” workers, but not to construction workers.]]>