Author Archive
July 6th, 2011 by Steve Amitay
By June of this year, DoL intends to publish a proposed rule to expand the scope of employer-consultant reporting required under Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Under the LMRDA, an employer must report any agreement or arrangement with a third-party consultant to persuade employees regarding their collective bargaining rights, or to gather certain information about employee activities or a labor organization in connection with a labor dispute. The labor relations consultant must also report information about such an agreement or arrangement. Continue Reading…
June 9th, 2011 by Steve Amitay
Earlier today, the House Transportation and Infrastructure Committee released a report containing the results of a study/investigation the Committee conducted over the past several months on various issues and current TSA policies related to the use of private screeners at U.S. airports through the Screening Partnership Program (SPP). The report provides clear evidence that private screeners are a cost-efficient and more effective alternative to federal screeners, and its exposes TSA’s current negative stance toward the SPP as a product of unsubstantiated policy rationales, erroneous data and biased studies, and collusion government unions Continue Reading…
June 2nd, 2011 by Steve Amitay
In 2009, the Obama Administration drafted memos that envisioned changing federal acquisition policy to require positive weight in the federal acquisition source selection process be given to bidders for their labor standards for their workforce. Dubbed the "High Road Contracting Policy", each bidder on a federal contract would be assigned a scored based on labor related criteria that would include whether the bidder pays a livable wage, provides "quality, affordable health insurance," an employer-funded retirement plan and paid sick leave. Other factors would include the company’s record in complying with tax and labor laws. In additions, the labor and employment information would also be systematically collected from all contractors and be made available through a public database. Of most significance, a bidder’s "score" would be based not only on the treatment of its employees working on the government contract but to all company staffers.
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May 26th, 2011 by Steve Amitay
On December 22, 2010, the NLRB invited parties to file briefs in Specialty Healthcare and Rehabilitation Center, a case that addresses appropriate bargaining unit composition in long-term care facilities. In Specialty Healthcare, the United Steelworkers sought to represent a unit of certified nursing assistants (CNAs) at the employer’s nursing home. The employer, however, wanted to include support staff in the bargaining unit. The Board found that a bargaining unit of solely CNAs was appropriate and the employer appealed. The Board granted the employer’s request for review, using this case to determine if the way the Board makes unit determinations is appropriate – not just for health care workers, but for all other industries as well. Said the Board,
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May 20th, 2011 by Steve Amitay
As President Obama mentioned in the State of the Union, on January 18, 2011, he signed Executive Order 13563, which directs executive agencies to review (and potentially repeal and roll back) government regulations that are burdensome on business or outdated. Specifically the EO states “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” Each agency has 120 days to come up with a plan to “periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” Accompanying memorandums provide as well for greater transparency in regulatory decision-making through use of the Internet, reviews to avoid regulatory overlap between agencies and steps to “reduce regulatory burdens on small businesses, through increased flexibility.” The EO was hailed by business groups and seen as significant move by Obama to tack to the center and an attempt to make amends with corporate America, which will be crucial to his 2012 re-election prospects. One issue though is that the EO is not binding on independent agencies (such as the NLRB), but the Administration has subsequently encouraged such agencies consider the EO’s provisions voluntarily.
On a related matter, the GOP leadership of the House recently unveiled a resolution that instructs the major House committees to “inventory and review existing, pending and proposed regulations and orders from agencies of the federal government, particularly with respect to their effect on jobs and economic growth.” Already, the House Oversight and Government Reform Committee, led by its Chairman Rep. Darrell Issa (R-CA), has embarked on a much publicized regulatory review effort involving the solicitation of the views of numerous business groups and companies (no one else) on what regulations they believe are impeding economic and job opportunities. To no surprise, environmental and financial reporting regulations lead the list of corporate regulatory grievances.
May 5th, 2011 by Steve Amitay
While the NLRA gives the NLRB rulemaking authority, for 75 years it has been rarely exercised. However, in December 2010, the 3-1 Dem majority (Dems last had majority status is 2001) put out a Notice of Proposed Rulemaking requiring employers, subject to the National Labor Relations Act (NLRA) to post notices informing their employees of their rights as employees under the NLRA. While this posting requirement on its face does not seem a big deal there are some specific and general concerns with the proposed rule. Specifically, in addition to requiring physical posting of paper notices, the rule also requires that notices be "distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means." This could be more problematic for employers. Furthermore, the NLRB has proposed that failure to post the notice would be an unfair labor practice; that a failure to post the notice could be used as evidence of discrimination; and that failure to post would result in tolling the 6-month statute of limitations period for violations of the NLRA.
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April 25th, 2011 by Steve Amitay
Last year, the NLRB took up a case (Lamons Gaskets) that it said it would it use to reconsider (and potentially overrule) the 2007 Dana Corp decision which established decertification election parameters. In Dana, the NLRB attempted to harmonize voluntary recognition arrangements made by employers and unions with the need to protect employees’ fundamental right of free choice in choosing (or not choosing) a collective bargaining representative. Under Dana an employer who voluntarily recognizes a union must his notify employees in a posting that voluntary recognition had been granted. After that, for a limited time (45 days following posting), the NLRB would accept a request from employees (at least 30 percent of the unit) to hold an election on the employer recognition of the union (or to join a rival union). Since 2007, 85 petitions have been filed, resulting in the conducting of 54 elections. In 15 of those elections (approximately 28 percent) employees rejected the recognized union. In two of those elections, employees voted to replace the recognized union with a rival.
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April 15th, 2011 by Steve Amitay
On January 26, 2011, President Obama re-nominated ex-SEIU counsel Craig Becker, who has served as a "recess appointee" on the NLRB since last April, to a full term on the NLRB. A full term would go until 2014 and Becker temporary appointment ends in December 2011. Becker was denied confirmation last year by the Senate before his recess appointment and now with six more GOP members in the Senate, there is no chance for confirmation. The Becker renomination gives unions a rallying issue, but it also seems to contradict recent Obama entreaties to corporate America. However, according to people following the situation, because of the timing of Becker’s recess appointment last year, in order for him to be paid this year, he had to be renominated. Becker cannot be recess appointed again to his current NLRB seat, but he could be recess appointed to another seat if one becomes vacant, and that would allow him to serve until the end of 2012.
April 11th, 2011 by Steve Amitay
In mid-January, the National Labor Relations Board (NLRB) announced its intentions to sue four states-Arizona, South Carolina, South Dakota and Utah-to overturn voter-approved state constitution amendments requiring any attempts to unionize a workplace be done with a secret ballot election system. The NLRB contends such state amendments clearly conflict with Supreme Court decisions holding that under the National Labor Relations Act (NLRA) employer recognition of "card check" elections is a legal path to union representation. Accordingly, such federal law on the issue "pre-empts" the State amendments, and almost all legal commentators and scholars agree the amendments are unconstitutional. However, the NLRB recently sent a letter to the State AG’s saying they would like to find a solution without litigation. It has been reported that the state AG’s have essentially "backed down" by saying they would look to find ways to construe the amendments as being consistent with federal law.
On a related note, on January 27, 2011, Senate Jim DeMint (R-SC) along with 20 GOP Senate co-sponsors introduced S. 217 the "Secret Ballot Protection Act of 2011." The bill would amend the NLRA to guarantee the right to secret ballot union representation elections. Basically, it would be deemed an unfair labor practice under the NLRA if an employer recognized a union that has not been selected via secret ballot. In addition, the bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election to cause or attempt to cause an employer to recognize or bargain with it. It’s a reverse EFCA bill, but a Democratic majority in the Senate, the bill has no chance for passage.
April 4th, 2011 by Steve Amitay
With a 3-1 Democratic majority that includes a very active former SEIU Counsel Craig Becker, plus an aggressive Dem. General Counsel, the NLRB, through expansive precedent challenging case reviews, a willingness to engage in rulemaking, and increased enforcement activities, is a major concern for employers and groups such as the U.S. Chamber. The Chamber warns that "the Obama NLRB could effectively implement almost all of the objectives of the Employee Free Choice Act, plus many other goals of unions, through substantive rulemaking and/or other non-substantive changes in agency rules and regulations, statements of procedure, policies and guidelines." As with other federal agencies/offices considered to be anti-business/anti-jobs, congressional Republicans have said they will seek to reduce NLRB funding. Given that 90% of the agency’s budget is personnel related and much of its work is staff driven, cuts to the NLRB could have a significant impact on its activities. However, as with similarly proposed pro-business/anti-regulation cuts to EPA, DoL, and other agencies, what the GOP wants is not going to be the final say with a Dem majority Senate.
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