Working Hard For Working People

NLRB General Counsel Proposes a Change to Existing Deferral Policies

Under a proposal by NLRB General Counsel, Lafe Solomon, the Board would no longer defer certain charges to lengthy grievance and arbitration processes. Under the current Board deferral policy union charges of employer violations of 8(a)(1) and (3) which involve discharges or discrimination based on Union activity are deferred to the parties’ grievance and arbitration provision in their collective bargaining agreement. The reasoning behind the existing deferral policy is that the dispute will be resolved faster through arbitration than under a Board investigation. However, this is not always the case. Often employer delay tactics cause these disputes to take over a year to be resolved. Solomon is attempting to address this very problem. Solomon is proposing that the Board no longer defer where it is anticipated that the underlying disputes will not be resolved in under a year. He is also proposing that the Board end its deferral policy for an existing charge where the dispute remains unresolved after a year. This proposal, when implemented, will provide for a more efficient Board and greater protection for Union members from employer retaliation.

New Board Members Sworn In

Following their recess appointments by President Obama, the three new members of the National Labor Relations Board were sworn in this week.  Sharon Block, Terence F. Flynn and Richard F. Griffin join Chairman Mark Gaston Pearce and Member Brian Hayes on the Board.  This is the first time there have been a full compliment of Board members since August 2010.

 

President Appoints Three to National Labor Relations Board

President Obama announced yesterday his intent to make recess appointments to the Board.  The three individuals are Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, currently Chief Counsel to NLRB Board Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).  Biographies of all three individuals are available on the Board's website.

Absent these recess appointments, the Board would lack the ability to enforce the National Labor Relations Act in a meaningful way.  In his statement, the President said  "The American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans. We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that's why I am proud to appoint these fine individuals to get to work for the American people." 

Boeing Settles Politicized Board Charges With The Machinists

   

    The Washington Post is reporting that Boeing and the Machinists have agreed to settle the unfair labor practice charges arising out of the Company’s proposed shift of production to South Carolina as part of a larger agreement on a contract. The reported terms of the deal allow Boeing to continue moving the planned production to South Carolina. In return, the Union will receive a deal which will provide guarantees to keep another line of production in Washington and more favorable terms of compensation for its members. The deal has not yet been ratified by the membership.

    The NLRB’s enforcement of the long standing precedent in this case has been highly politicized. As a result, the withdrawal of charges could ease the intense scrutiny the agency has been under for months.  

 

Ohio Votes to Protect Public Sector Collective Bargaining Rights

In a decisive victory for workers and organized labor Ohio Senate Bill 5 was overwhelmingly defeated Tuesday night in a statewide referendum. The bill which was similar to Wisconsin’s Act 10 in restricting and eliminating the right of public sector workers to collectively bargain was highly unpopular in the state. The vote sends a clear message to Republican lawmakers across the country and in Wisconsin that the push to destroy collective bargaining rights in the public sector was an overreach. The strong margin of victory undeniably energizes and creates momentum for opponents of Governor Scott Walker and Act 10 on the eve of recall efforts that will begin in less than a week.

Supervisory "Speculation" About Layoffs Constitutes Unfair Labor Practice

In Trump Marina Associates v. NLRB (October 14, 2011), the D.C. Circuit upheld the Board's decision that the employer committed unfair labor practices in a hotly contested election that the Union lost by a narrow margin. Among the actions that the Board held to constitute a ULP was a supervisory comment that the employer would not negotiate with the union and supervisory 'speculation' about layoffs or other matters as the result of unionization that were not based on objective fact.

Interrogation of Union Supporters Violates Act

In Acme Bus Corporation, (August 26, 2011), the National Labor Relations Board reviewed a number of unfair labor practices committed by a bus company during a union organizing campaign.  The Board found that the employer violated Section 8(a)(1) of the Act by interrogating employees about union activities, orally promulgating and maintaining a rule prohibiting employees from discussing the Union at work, orally promulgating, maintaining, and disparately enforcing an overly broad solicitation/distribution rule, creating the impression that employees’ protected activities were under surveillance, and subjecting employees to closer scrutiny in retaliation for their support of the Union.

Previant Legal Show: Falling on Ice

On October 23, 2011, on the Previant Legal Show, Attorneys Lyris Medrano and David McCormick discussed what to do when you are out shopping and slip and fall on ice:

Faling on Ice

Cancellation of Group Health Insurance During Bargaining Violates Act

In Uwanta Linen Supply, Inc., (August 17, 2011), the National Labor Relations Board ruled that an employer violated Sections 8(a)(5) and (1) of the National Labor Relations Act where it failed to bargain about group health insurance benefits and failed to continue benefits while bargaining took place.  Notably, the employer failed to file a timely answer to the Board issued complaint and, when they did answer, indicated that “we did not believe it would take very long to either reinstate coverage or find another provider.”  The Board found that even assuming that the Respondent demonstrated good cause for its untimely answer, the answer did not deny the substance of the complaint’s factual allegations. The Board ordered the Respondent to restore the employees’ health insurance and reimburse them for expenses ensuing from the unilateral discontinuance of their health insurance.

Board Creates New Rule Preventing Financing of Litigation During “Critical Period”

In Stericycle, Inc., (August 23, 2011), the Board created a new rule “that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which states claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.”  The rule overturns existing Board law governing union-sponsored lawsuits filed during the critical period.  See Novotel New York, 321 NLRB 624 (1996).  During early stages of the organizing efforts, drivers “voiced concern that they were not being paid for meal times, break times, and overtime work.”  During the critical period, the union financed a lawsuit on behalf of the employees under federal and state law.  Based on the lawsuit, and the Board’s new policy, the Board found that the lawsuit was a benefit granted to employees during the critical period, thereby tainting the election.  Notably, the decision occurred prior to the expiration of Wilma Liebman’s term on the Board. Liebman dissented from the majority opinion, on the basis that the Board’s approach “burdens activity protected by the NLRA and the First Amendment more than is necessary to preserve the integrity of Board elections.”