Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

On Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted to send the nominations of Mark Gaston Pearce (D), Sharon Block (D), Richard Griffin (D), Harry I. Johnson, III (R) and Philip A. Miscimarra (R) to the full Senate for consideration. While the votes in favor of Johnson and Miscimarra were unanimous, the Committee voted 18-4 in favor of Pearce, and 13-9 in favor of Block and Griffin. The votes approving Block and Griffin were the most divisive, as they are the two members seated via recess appointment in January 2012. Federal courts are divided as to the constitutionality of these appointments, a matter that is likely headed to the Supreme Court.

Last week the Committee held a more extensive hearing to discuss the nominees. Many of the same arguments both for and against the nominees made last week were reiterated during Wednesday’s executive session. On the whole, Republican members of the Committee expressed more concern about seating Block and Griffin and suggested that it would be better if they resigned and allowed President Obama to name two new Board appointees in their stead.

It is believed that all five nominees will be presented to the Senate as a package. Although Democrats hold a narrow majority in the Senate, it is uncertain whether they would be able to muster the 60 votes needed to thwart a potential filibuster of the nominations. At the end of August, Chairman Pearce’s term expires.

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The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well.

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Before adjourning for a week-long recess, lawmakers in both the House and Senate introduced several bills addressing labor union and National Labor Relations Board activity.

The first bill reintroduced by Rep. Steve King (R-IA) would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” The Truth in Employment Act (H.R. 1746) would add the following provision to Section 8(a) of the NLRA: “Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

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The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress. To learn more about the decision, please continue reading at Littler's Labor Relations Counsel.

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By Michael Lotito and Ilyse Schuman

On Friday the House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) by a vote of 219-209. The measure was approved largely along party lines, although 10 Republican members did vote against it. This bill would limit National Labor Relations Board activities until at least three members are confirmed by the Senate, President Obama’s recess appointees’ terms expire, or until the U.S. Supreme Court weighs in on the legitimacy of the recess appointments. Specifically, this bill would prevent the Board from implementing, administering, or enforcing any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012 – the date the President sat three members via recess appointment – that requires a quorum. The measure would allow NLRB regional offices to continue to accept and process unfair labor practice charges. In the event additional Board members are validly confirmed, all of the actions carried out by the prior Board staffed with the recess appointees would require review.

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By Ilyse Schuman and Michael Lotito

President Obama has announced his intent to re-name Mark Gaston Pearce as Chairman of the National Labor Relations Board (NLRB), as well as seat Harry I. Johnson, III and Philip A. Miscimarra as new members. It is likely that all three nominees will be presented to the Senate as a package. However, it remains to be seen if, and when, the Senate will act on their nominations.

According to the White House announcement, both Johnson and Miscimarra – who would fill the two Republican seats of the five-member Board – have worked as private sector labor law attorneys for a number of years. Johnson earned his undergraduate degree from Johns Hopkins University, a Master of Arts in Law and Diplomacy (M.A.L.D.) from Tufts University’s Fletcher School of Law and Diplomacy, and a law degree from Harvard Law School. Miscimarra earned his undergraduate degree from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a law degree from the University of Pennsylvania Law School.

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By Michael Lotito and Ilyse Schuman

The Senate approved a budget resolution last week that omits an amendment that would have withheld funds from the National Labor Relations Board to prevent it from enforcing decisions or regulations issued after three members were seated to the Board via recess appointment on January 4, 2012. In the wake of the recent federal court decision finding that the recess appointments were unconstitutional, several measures have been considered in Congress to limit the Board’s authority. Just last week, the House Committee on Education and the Workforce approved a bill that would require the Board to suspend all activities that require a three member quorum and prohibit the enforcement of any quorum-required action taken after January 4, 2012. The amendment (S. Amdt. 349) to the budget resolution (S. Con. Res. 8) was the most recent maneuver to accomplish this end.

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The U.S. House Committee on Education and the Workforce approved along party lines the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120). The bill would require the NLRB to suspend all activities that require a three member quorum and prohibit the enforcement of any quorum-required action taken after President Obama seated three members via recess appointment on January 4, 2012. As previously discussed, the impetus for this bill – and several others – was the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that the recess appointments to the NLRB were unconstitutional.

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On March 20, the House Committee on Education and the Workforce will hold a meeting to vote on the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), a bill seeking to limit National Labor Relations Board activities until at least three members are confirmed by the Senate or until the U.S. Supreme Court weighs in on the legitimacy of President Obama’s recess appointments. This measure is the latest in a series of bills that have been introduced following the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that the President’s three January 2012 recess appointments to the NLRB were unconstitutional. 

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The National Mediation Board (NMB) has made revisions to its Representation Manual (Manual) to reflect the voting process and election procedure changes made by the FAA Modernization and Reform Act of 2012 (FAA Act) and related implementing regulations, as well as to include a new requirement related to the List of Potential Eligible Voters that employers must provide the NMB. The changes to the Manual take effect as of March 25, 2013.

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During the past two weeks, measures were introduced in the House and Senate that address such topics as the minimum wage, employment taxes, labor-management relations and National Labor Relations Board Authority, wage and hour restrictions, and medical marijuana. A brief summary of new legislation is as follows:

Minimum Wage

Sen. Tom Harkin (D-IA) and Rep. George Miller (D-CA) introduced a bill that would increase the federal minimum wage. The Fair Minimum Wage Act of 2013 (S. 460; H.R. 1010) would increase the federal hourly rate from $7.25 to $10.10 in $.95 increments over a three-year period. After that time, the minimum wage would be tied to any cost of living adjustments. The bill would also increase the hourly wage for tipped workers from $2.13 to $3.00 during the first year, and then increase this base amount by either $.95 or an amount necessary to raise the rate to 70% of the minimum wage, whichever is less.

The Senate Committee on Health, Education, Labor and Pensions (HELP) will hold a hearing on the minimum wage on Thursday, March 13, 2013 at 10:00 a.m., ET. More information on the upcoming hearing can be found here.

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Before adjourning for a week-long President’s Day recess, members of Congress introduced several bills addressing such issues as the use of an individual’s credit and/or bankruptcy history in employment; OSHA’s Voluntary Protection Program; minimum wage for tipped employees; and OFCCP and NLRB rulemaking. The following briefly discusses the labor and employment bills introduced the week of February 10, 2013:

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As a result of the recent federal court decision that President Obama’s three recess appointments to the NLRB were unconstitutional, past and future Board decisions and agency actions are constitutionally suspect and open to judicial challenge, according to lawmakers and panelists during a congressional subcommittee hearing held on Wednesday. The House Subcommittee on Health, Employment, Labor, and Pensions conducted this hearing, entitled: “The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions” to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning v. NLRB decision.

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In addition to the many immigration-related bills that were introduced last week, legislative measures addressing password privacy, FMLA leave, the National Labor Relations Board’s authority, and payroll taxes also made their debut during the first full week of February 2013.

Social Media

Representatives Eliot Engel (D-NY), Jan Schakowsky (D-IL), and Michael Grimm (R-NY) introduced a bill that would prevent employers and educational institutions from requesting individuals’ usernames, passwords, or any other means of accessing their social networking sites and from taking adverse action against job applicants, employees, and students who refuse to provide such information. According to a press release, the Social Networking Online Protection Act (SNOPA) (H.R. 537) is currently the only bipartisan social media privacy legislation that has been introduced at the federal level this year. This bill has been referred to the House Committee on Education and the Workforce.

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Following the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that President Obama’s three January 2012 recess appointments to the NLRB were unconstitutional, the Senate reacted by introducing a number of measures that take aim at the Board’s current authority.

The NLRB Freeze Act of 2013 (S. 180) introduced by Sen. John Barrasso (R-WY) would prevent the Board from enforcing rules, regulations and decisions issued since January 2012. Similarly, the Advice and Consent Restoration Act (S. 188) introduced by Sen. Roy Blunt (R-MO) would prevent the NLRB recess appointees from receiving salaries, as well as block the Board from taking any action until the appointees are legally confirmed. Such Board actions include:

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In a decision that could potentially invalidate hundreds of Board decisions, the U.S. Court of Appeals for the D.C. Circuit has held that President Obama’s three recess appointments to the NLRB were unconstitutional. In the decision, Noel Canning v. NLRB, the court vacated an unfair labor practice determination on the grounds that the Board lacked a legitimate quorum when it issued its decision.

In 2010 the U.S. Supreme Court held in New Process Steel that the Board must operate with at least three sitting members. Facing the impending loss of a quorum at the Board, the President appointed Sharon Block, Richard Griffin, and Terence Flynn to the agency in January 2012 while the Senate was still holding brief pro forma sessions. This maneuver triggered an outcry from those who claimed that the appointments were invalid as the Senate was not technically in recess at the time. The D.C. Circuit Court agreed. Continue reading this entry at Littler's Labor Relations Counsel.

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The number of unionized workers in both the public and private sectors fell again in 2012, continuing a downward trend, according to a survey conducted by the U.S. Bureau of Labor Statistics (BLS). Last year 11.3% of wage and salary workers belonged to a union, down from 11.8% in 2011. The BLS survey provides data on union membership by industry, occupation, member demographics, and location, and includes wage statistics for both union and non-union workers. Continue reading this entry at Littler's Labor Relations Counsel.

 

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The 113th Congress hit the ground running by introducing – and reintroducing – various labor- and employment-related bills during its first week in session. It is expected that over the next few months new and returning members of the House of Representatives and Senate will inundate their chambers with measures they hope to see signed into law. While many of these bills will inevitably fail to advance, this blog will periodically provide a brief roundup of the most interesting or controversial measures introduced over the course of the legislative term. Because the House of Representatives is still controlled by Republicans and the Senate by Democrats, the most divisive bills have little chance of advancing. The following measures were introduced during the first week of January 2013:

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The National Mediation Board (NMB) has issued its final rule (pdf) implementing the changes to NMB procedures regarding run-off elections, “showing of interest” thresholds for representation elections, and the agency’s rulemaking authority that were included in the FAA Modernization and Reform Act of 2012 (FAA Act), signed into law on February 14, 2012. Notably, the FAA Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures.

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Last week the House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board (NLRB or “Board”) that the Committee contends are indicative of the agency’s pro-union bias. Rep. Darrell Issa (R-CA) chairs the Committee. The report – President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate (pdf) – claims that these legislative, regulatory, and internal missteps “compromise the perceived fairness of the NLRB that Congress deemed necessary for its successful operation,” and have created a “rogue agency plagued by systemic problems.” Continue reading this entry at Littler's Labor Relations Counsel.

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President Obama has nominated Linda Puchala to serve a second term as a member of the National Mediation Board (NMB). The President has also nominated Nicholas Christopher Geale to fill the vacant Republican seat on the NMB. Harry Hoglander is the current chairman of the 3-member agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

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The NLRB General Counsel’s Division of Advice has issued opinions in two cases (available here and here), finding the employers’ handbook provisions concerning “at-will employment” to be lawful. The Advice Memoranda, both dated October 31, 2012, provide much needed guidance for employers whose handbooks and policies advise employees that their employment is “at will” and may be terminated at any time. As the General Counsel observes in both memoranda, it has become commonplace for employers to rely on such policy provisions as a defense against employees asserting that the employee handbook creates an enforceable employment contract. Whether such provisions would pass scrutiny by the NLRB, however, has been an open question. Continue reading this entry at Littler's Labor Relations Counsel.

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On September 12, Littler Shareholder Walter Hunter outlined a number of concerns facing higher education institutions in light of recent National Labor Relations Board developments. Testifying before the House Subcommittees on Health, Employment, Labor, and Pensions (HELP) and Higher Education and Workforce Training, Hunter discussed various NLRB decisions and initiatives that he said are particularly problematic for the unique settings of our colleges and universities.

Opening the joint hearing, HELP Chairman Phil Roe (R-TN) asserted that the Board is “exploring actions that could bring significant changes to higher education institutions.” To this end, the hearing focused on the Board’s reexamination of its jurisdiction over graduate students, university faculty, and religious institutions.

Hunter – co-chair of Littler’s higher education practice group – emphasized that colleges and universities have a deep respect for the collective bargaining process where appropriate, but “will fiercely protect academic freedom, teaching, learning and research.” He touched upon several recent Board actions that would be detrimental in the university setting.

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On Wednesday the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing to discuss three legislative proposals to amend the National Labor Relations Act (NLRA). During the hearing – Examining Proposals to Strengthen the National Labor Relations Act – members of the subcommittee and panelists debated the merits of the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, (pdf) Secret Ballot Protection Act, (pdf) and the Tribal Labor Sovereignty Act. (pdf)

The RAISE Act would amend the NLRA to permit employers whose workplaces are governed by collective bargaining agreements (CBAs) to reward their employees with additional wages or other compensation for their job performance. Under current law, providing employees whose CBAs do not address merit pay with individual bonuses constitutes “direct dealing” prohibited by the NLRA.

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In a ruling that will affect how unions conduct business and collect fees, the U.S. Supreme Court held (pdf) that non-member employees represented by a public-sector union cannot be compelled to fund the union’s political and social speech without proper notice. Knox et al. v. Service Employees International Union, Local 1000, slip op. No. 10-1121 (June 20, 2012). A central issue in the case was what notice was required to be given to non-members by unions as to how their money would be spent. The Supreme Court previously held that unions are required to issue notices to non-members as to how their dues would be spent, to allow them to opt-out of non-collective bargaining activities. These are often referred to as “Hudson Notices” based on their decision in Teachers v. Hudson, 475 U.S. 292 (1986). Continue reading this entry at Littler's Labor Relations Counsel.

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The National Labor Relations Board has created a new webpage that explains an employee’s section 7 rights under the National Labor Relations Act (NLRA) and allows the user to click on various Board cases that address protected concerted activity. The focus of these examples is to apprise workers of their rights under the Act, without the involvement of a labor union. Continue reading this entry at Littler's Labor Relations Counsel.

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By Ilyse Schuman and Peter Petesch

On Tuesday, the National Mediation Board (NMB) held a public hearing to discuss the agency’s proposed rule that would implement the changes to existing representation dispute and election procedures in the railroad and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Issued on May 15, 2012, the proposed rule would amend NMB regulations regarding run-off elections, showing of interest thresholds for representation elections, and the NMB’s rulemaking proceedings to reflect the changes the FAA Act made to the Railway Labor Act (RLA).

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On May 31, the House of Representatives agreed to remove language contained in an appropriations bill that would have restricted the use of project labor agreements (PLAs) in military construction contracts. The measure at issue, H.R. 5854, (pdf) is designed to make appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2013. The version of the bill approved by the Appropriations Committee had contained the following anti-PLA provision:

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On Saturday, National Labor Relations Board member Terence Flynn announced his resignation from the Board following allegations cited in an NLRB Inspector General report (pdf) that he committed ethics violations while employed by the Board, but before he assumed his Board member position. Flynn repeatedly denied such allegations. President Obama named Flynn – who had worked as Chief Counsel to NLRB member Brian Hayes – as a nominee in January 2011 and seated him via recess appointment along with nominees Sharon Block and Richard Griffin in January 2012. Facing the impending loss of a quorum at the Board, the President’s decision to exercise his recess appointment power while the Senate was still holding brief pro forma sessions has generated a substantial amount of controversy. The critical question as to whether these recess appointments are in fact valid remains a contested issue and will persist even after Flynn’s resignation, which is effective July 24, 2012. According to the NLRB’s announcement, Flynn has immediately recused himself from all agency business.

The remaining Board members include Chairman Mark Pearce (D), Brian Hayes (R), Sharon Block (D) and Richard Griffin (D).

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The National Mediation Board (NMB) has announced that it will hold at least one day of public hearings to discuss the agency’s proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Issued on May 15, 2012, the proposed rule would amend NMB regulations regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to reflect the changes the FAA Act made to the Railway Labor Act (RLA).

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On Friday, the House of Representatives approved 299-120 the National Defense Authorization Act (NDAA) for Fiscal Year 2013 (H.R. 4310) with an amendment (H. Amdt. 1106) that would “prevent federal agencies from requiring contractors to sign an anti-competitive and costly project labor agreement (PLA) as a condition of winning a federal construction contract” for military construction and housing projects. This amendment, offered by Rep. Roscoe Bartlett (R-MD), was narrowly approved on May 17 in a 211-209 vote. Specifically, this amendment would add the following to the U.S. Code section addressing military construction projects: 

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By Stefan Marculewicz

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

According to the NLRB’s announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that “Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.”

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The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions. Continue reading this entry at Littler's Labor Relations Counsel.

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In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. Continue reading this entry at Littler's Labor Relations Counsel. 

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On Thursday, May 10, 2012, the House of Representatives approved 247-163 a fiscal year 2013 funding bill (H.R. 5326) for a variety of federal agencies, including the Equal Employment Opportunity Commission (EEOC), that includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Generally, the bill would allocate nearly $367 million to the EEOC for FY 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases.

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On April 26, 2012, Sen. Marco Rubio (R-FL) introduced legislation that would amend the National Labor Relations Act (NLRA) to permit employers whose workplaces are governed by collective bargaining agreements to award their employees with additional wages or other compensation for their job performance. A week earlier, Rep. Todd Rokita (R-IN) introduced the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act (H.R. 4385, S. 2371) in the House of Representatives.

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In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. Continue reading this entry at Littler's Labor Relations Counsel. 

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A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure.

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Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012. Continue reading this entry at Littler's Labor Relations Counsel.

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A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees. The rule includes a number of enforcement provisions that have been highly contested. Among other remedies for a posting rule violation, the Board would be permitted to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would also deem an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” as well as render a failure to post the required notice a ULP in its own right. Last month, the U.S. District Court for the District of Columbia struck down the enforcement provisions of the rule, but upheld the Board’s authority to issue the rule in the first instance.  Continue reading this entry at Littler's Labor Relations Counsel.

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On March 29, 2012 Sen. Tom Harkin (D-IA) introduced a bill that seeks to make substantial changes to the workplace. Like the expansive American Jobs Act Sen. Majority Leader Harry Reid (D-NV) introduced in the fall of 2011, the Rebuild America Act (S. 2252) incorporates a whole host of employment-related provisions into a single piece of legislation. While a large portion of the bill focuses on increased infrastructure, manufacturing, and educational investment, other portions address minimum wage, worker misclassification, pension protection, and paid sick leave. Key provisions of this legislation include the following:

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On March 7, 2012, lawmakers reintroduced two measures in the Senate, both of which would amend the National Labor Relations Act (NLRA), but they serve different objectives. One bill is sponsored by Republican Senator Jim DeMint (R-SC), and the other is a Democrat- sponsored bill. The National Right-to-Work Act (S. 2173) introduced by Sen. DeMint would repeal the provisions in the NLRA and the Railway Labor Act (RLA) that permit employers and unions to draft agreements requiring union membership and payment of union dues or fees as a condition of employment. While Sen. DeMint sponsored identical legislation in 2011 and 2007, the bill failed to sufficiently advance during those terms. The latest version of the bill is the 40th time such a measure has been introduced in Congress since 1973. It is unlikely that this bill will advance in the Senate this year.

The Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act (S. 2168) reintroduced by Senators Richard Blumenthal (D-CT), Dick Durbin (D-IL), and Tom Harkin (D-IA) is expected to stall as well. This bill would amend the NLRA’s definition of “supervisor” to enable more employees to be covered by the Act. Specifically, the legislation eliminate the terms “assign” and “responsibly to direct” from the list of supervisory duties in the NLRA. According to a press release on this bill, this change “would mean that only those with real authority to affect employees’ terms of employment could be classified as supervisors.” In addition, the bill would stipulate that to be considered a supervisor under the NLRA, the employee must perform supervisory duties during a majority of his or her work time.

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UPDATE: Plaintiffs filed notice on March 5, 2012 that they are appealing the decision upholding the Board’s authority to issue its notice posting rule and moved to enjoin enforcement of the rule while the appeal is pending. On March 7, 2012, the district court denied plaintiffs’ motion for an injunction pending appeal.

The U.S. District Court for the District of Columbia issued a ruling (pdf) on Friday that strikes down part of the National Labor Relations Board’s notice posting rule, but declines to address whether the three recess appointments to the Board are valid.

The lawsuit at issue was brought by, among other entities, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW). It sought to enjoin the enforcement of the Board’s new rule mandating that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizing employers for non-compliance. In the event an employer is found to have violated the posting rule, the Board would be permitted, among other remedies, to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would deem a failure to post the required notice a ULP in its own right. Continue reading this entry at Littler's Labor Relations Counsel.

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On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures. Rep. Phil Gingrey (R-GA) introduced the resolution in the House with 64 co-sponsors. Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced a companion resolution with identical language in the Senate with 43 co-sponsors. The text of both measures is as follows:

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On February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three most recent Board additions were seated via recess appointment last month. The President’s decision to exercise his recess appointment power while the Senate was still holding brief pro forma sessions has generated a substantial amount of controversy, as expressed during a congressional hearing held last week. The legality of this move is currently being challenged judicially and through legislation. While Obama announced his intent to nominate Flynn in January 2011, he did not name Block and Griffin as his choices until December 14, 2011.

Given the ongoing disagreement about the validity of the recess appointments, the Senate is not likely to confirm the appointees. If the Senate were to approve their nominations, however, Block’s term would expire on December 16, 2014; Flynn’s term would last until August 27, 2015; and Griffin’s term would end on August 27, 2016.

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As a preemptive strike against further development of a National Labor Relations Board representation election rule, Rep. Sandy Adams (R-FL) has introduced a bill that would prohibit the Board from requiring employers to provide to the union or Board employee telephone numbers or email addresses. The Keeping Employees' Emails and Phones (KEEP) Secure Act (H.R. 3991) (pdf) would add the following provision to the end of Section 9(c) of the National Labor Relations Act: “In no circumstances shall the Board require an employer to provide to the Board or to a labor organization the telephone number or email address of any employee.’’

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Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions.

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Updated: February 21, 2012

As expected, the House of Representatives approved the conference report to the Federal Aviation Administration (FAA) funding bill that includes significant restrictions over air and railway union organizing. The House voted 248-169 in favor of the report reconciling the House and Senate versions of the FAA Modernization and Reform Act of 2012 (H.R. 658), which reauthorizes the agency’s programs and provides its funding for a four-year period.

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The U.S. Department of Agriculture has withdrawn a controversial rule that would have required contactors to certify that they and their subcontractors and suppliers are in compliance with all applicable labor laws. The contracting clause, reminiscent of the Clinton Administration “blacklisting” regulation, was issued in December 2011 as both a direct final rule and a notice of proposed rulemaking. Bypassing the normal notice and comment period, the direct final rule would have taken effect on February 29 of this year. The Department simultaneously issued the proposed rule that allowed for a normal notice and comment process.

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In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures.  Continue reading this entry at Littler's Labor Relations Counsel.

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In its most recent effort to draw lines on the self-described “hot topic” of the “lawfulness of employers’ social media policies and rules,” the National Labor Relations Board’s (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2012, in the form of a report, (pdf) issued to senior regional staff, on 14 cases which, according to the General Counsel, “present emerging issues in the context of social media.” This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues.  Continue reading this entry at Littler's Workplace Privacy Counsel.

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Last Friday leaders of the House and Senate reportedly came to an agreement on the terms of the Federal Aviation Administration (FAA) reauthorization bill concerning how the National Mediation Board (NMB) will conduct representation elections and issue new rules. The NMB is the independent agency that oversees union representation, collective bargaining, and dispute resolution matters in the rail and airline industries.

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As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf)  sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.

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The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions. The crux of the argument is that since the Senate was not technically in recess at the time of the appointments, the President lacked the authority to seat new Board members without the Senate’s advice and consent. When Obama made these appointments, the Senate was holding regular pro forma sessions in which the chamber convenes but conducts no substantive business. Continue reading this entry at Littler's Labor Relations Counsel. 

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On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.  Continue reading this entry at Littler's Labor Relations Counsel.

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Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.  Continue reading this entry at Littler's Labor Relations Counsel.

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Days after a U.S. District Court judge for the D.C. Circuit suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. As announced in a press release, the Board:

has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

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The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

According to Enzi:

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using backdoor political maneuvers to boost anemic union memberships and smother our nation’s struggling economy, this Administration should help America regain its strong financial footing.

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During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance.  Continue reading this entry at Littler's Labor Relations Counsel.

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Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.

Under the terms of the appropriations package, the DOL would receive $145.4 million more in FY 2012 than it received in 2011, although the boost in funding was largely due to a provision that fully funds Job Corps in the current fiscal year. According to a detailed summary (pdf) of the bill, without this provision, the DOL is actually receiving $545.6 million less than it received last year, and $942.2 million below the President’s funding request. The NLRB would receive $4 million less than it received last year, and an amount $8.9 million below the President’s budget request.

The funds come with strings attached. Essentially, the measure would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas. Specifically, provisions in the bill would accomplish the following:

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President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s term expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so. Continue reading this entry at Littler's Labor Relations Counsel. 

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By David Kadela

In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.

What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority. Continue reading about this development here.

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The Department of Agriculture’s Office of Procurement and Property Management has issued a direct final rule that would require its contractors to attest that they and their subcontractors, to the best of their knowledge, are in compliance with all applicable labor laws, and report any violations to their contracting officer. Specifically, the rule would add a subpart and clause entitled “Labor Law Violations” to the Agriculture Acquisition Regulation (AGAR) providing the language that must be included in all UDSA solicitations and contracts exceeding the simplified acquisition threshold (currently $150,000). If adopted, the provision would read as follows:

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As expected, the House of Representatives on Wednesday approved the Workforce Democracy and Fairness Act (H.R. 3094) by a vote of 235-188, largely along party lines. This bill would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s Specialty Healthcare decision, and prevent the National Labor Relations Board from proceeding with many of its proposed changes to representation election procedures. This measure was approved the same day the NLRB held a public meeting to consider and vote on a resolution approving a handful of proposed election rule changes.

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The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires at the end of the year, the Board will be left with Chairman Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time. There also has been speculation that Member Hayes might resign to prevent the remaining members from finalizing contentious Board rules.  Continue reading this entry at Littler's Labor Relations Counsel.

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The House of Representatives has set the stage for future debate and vote on the Workforce Democracy and Fairness Act (H.R. 3094), a bill that would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and serve as a preemptive strike against the National Labor Relations Board’s proposed changes to representation election procedures. On Friday, the House voted 239 - 167 in favor of a rule (pdf) that will, among other limitations, provide for one hour of general debate on the measure and consideration of four proffered amendments to the legislation.

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The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.  Continue reading this entry at Littler's Labor Relations Counsel.

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On Thursday Sen. Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843), a bill that would effectively revoke the National Labor Relations Board’s recent decision in Specialty Healthcare, and establish criteria for determining an appropriate bargaining unit. In Specialty Healthcare, the Board determined a petitioned-for unit will be deemed appropriate so long as that unit consists of a clearly identifiable group of employees. If an employer contends that the unit should include additional employees, it is incumbent upon the employer to show that the employees in a larger unit share an "overwhelming" community of interest with those in the petitioned-for unit. Many have argued that this decision will result in much smaller “micro” bargaining units that are easier to organize and more difficult for employers to administratively manage.

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Anticipating that the National Labor Relations Board may be left with only two sitting members come January, the agency has issued an order (pdf) temporarily granting the General Counsel (GC) full authority over litigation matters that would otherwise require Board authorization and the ability to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act (LMRA). Currently, the Board is comprised of Chairman Mark Gaston Pearce and Members Brian Hayes and Craig Becker. Terence F. Flynn’s nomination to fill the vacant Republican seat on the Board is still pending, and Becker’s controversial recess appointment is set to expire at the end of 2011. While President Obama re-nominated Becker to serve a full term, it is virtually assured that the Senate will not confirm him. Procedural maneuvers may prevent the President from making recess appointments, leaving just two sitting members in 2012.

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities. Continue reading this entry at Littler's Labor Relations Counsel.

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule (pdf) adopting regulations that implement Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  Among other requirements, this E.O. mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice "in all places where notices to employees are customarily posted both physically and electronically," informing them of their rights under the National Labor Relations Act (NLRA). Covered contractors are also required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000. This notification rule should not be confused with the National Labor Relations Board’s final rule – Notification of Employee Rights under the National Labor Relations Act – that requires private sector employers subject to the NLRA to post a notice informing employees of their rights under the NLRA.

The final rule to be published in the November 2, 2011 edition of the Federal Register adopts without change interim regulations amending the Federal Acquisition Regulation (FAR) to apply the Department of Labor’s rule on this topic. The DOL’s rule, which was released in May 2010, prescribed the requirements for the size, form, and content of the notice, outlined the exceptions for certain types of contracts, and discussed the standards and procedures related to complaints, penalties, compliance evaluations and enforcement of the notice requirement. In June 2010, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive on its procedures for conducting audits to verify that contractors are complying with the E.O.

For more information on the contractor notification requirements mandated by E.O. 13496, see Littler's ASAP: DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights.

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On Wednesday, the House Committee on Education and the Workforce voted 23-16 along party lines to send the Workforce Democracy and Fairness Act (H.R. 3094) (pdf) to the House floor. The vote followed a lengthy markup session of the legislation that would, among other changes, effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the National Labor Relations Board from pursuing its proposed changes to representation election procedures. According to the Committee’s media advisory, this bill “restores successful labor practices and reaffirms protections workers and employers have received for decades” and “ensures employers have access to a fair election hearing and employees are able to make a fully informed decision about union representation.” Earlier this month, the Committee held a more formal hearing with invited panelists to debate the bill’s merits.

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During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process.

Opening the hearing, Committee Chairman John Kline (R-MN) claimed that the NLRB is “wreaking havoc on the nation’s workforce and must be stopped.” Kline first criticized the Board’s “ambush elections proposal” that would require that pre-election hearings be held within seven calendar days after a petition is filed; provide employees with as few as 10 days to make a decision regarding whether they want to join a union; postpone the resolution of voter eligibility issues until after the election; mandate that employers complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union a preliminary voter list before the pre-election hearing, and a final voter list within two days after the election is scheduled, among other significant changes. According to Kline, such “expansive changes” should be vetted legislatively. To that end, Kline introduced the Workforce Democracy and Fairness Act, claiming it would “require the NLRB to change course.” This measure would provide employers with at least 14 days to prepare for an election hearing and afford workers at least 35 days to make an informed decision regarding union representation. The bill would also “safeguard privacy” by limiting what identification and contact information an employer must provide to unions prior to an election.

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Legislation introduced by House Committee on Education and the Workforce Chairman John Kline (R-MN) would effectively undo the criteria used to determine an appropriate bargaining unit established by the National Labor Relations Board’s recent Specialty Healthcare decision, and prevent the Board from pursuing its proposed changes to representation election procedures. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) seeks to return to the long-standing approach in assessing which employees belong in a proposed bargaining unit, and would establish a timeline and process for holding a hearing regarding any pre-election disputes and deciding the appropriate bargaining unit.

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Employers will now have until January 31, 2012 to comply with the National Labor Relations Board’s notice posting rule: Notification of Employee Rights under the National Labor Relations Act. This rule, which was slated to take effect as of November 14, 2011, mandates that all private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. Last month, the NLRB made available a copy of the required poster as well as a list of frequently asked questions about the rule.  Continue reading this entry at Littler’s Labor Relations Counsel.

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Lawmakers are taking another approach in an attempt to curb recent agency decisions and rulemaking considered unduly burdensome for businesses. On Thursday, Rep. Dennis Rehberg (R-MT) introduced (H.R. 3070), a bill that would appropriate funds for the Departments of Labor (DOL), National Labor Relations Board (NLRB), and other related agencies for fiscal year 2012. This nearly 150-page bill contains many provisions that not only reduce the amount these agencies would receive in comparison to prior years, but also would place a number of conditions on the receipt of such funds. In essence, the legislation would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas.

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During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight.

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The same week the House passed legislation limiting the National Labor Relations Board’s enforcement authority, Rep. Trey Gowdy (R-SC) introduced a bill that would eliminate the Board entirely. The National Labor Relations Reorganization Act of 2011 (H.R. 2926) would disband the NLRB and transfer its enforcement authority to the Department of Justice (DOJ) and its oversight of representation elections to the Department of Labor’s Office of Labor-Management Standards (OLMS).

In a press release, Rep. Gowdy stated:

The National Labor Relations Board has become a sycophant for labor unions and has lost all pretense of objectivity. The NLRB has outlived its usefulness and needs to be dissolved. The Department of Justice oversees a wide variety of civil, criminal, and administrative issues including anti-trust, voting rights, and major mergers and acquisitions; the DOJ can surely handle disputes between employers and employees and claims of unfair labor practices and do so without the bias and partisanship endemic to the NLRB.

This measure’s introduction is largely symbolic, as its chance of enactment is slim. The bill is evidence, however, of many lawmakers’ growing hostility toward the Board’s recent regulatory and administrative actions.

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As expected, the House of Representatives voted 238-186 in favor of a bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), would amend Section 10(c) of the National Labor Relations Act by adding the following provision:

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 persons 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.

If enacted, the provisions of this bill would apply to any pending complaint before the Board.

While this measure has sufficient support in the House, it is unlikely to gain traction in the Senate, where Democrats maintain a slim majority. Nonetheless, Sen. Lindsey Graham (R-SC) introduced a companion bill (S. 1523) in that chamber last week, although it is not expected to advance.

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The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act. This final rule, issued on August 25, 2011 and effective November 14, 2011, mandates that private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The agency has also posted to its website a list of Frequently Asked Questions regarding the notification requirement.  Continue reading this entry at Littler's Labor Relations Counsel.

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Updated: October 13, 2011

A week after the National Labor Relations Board issued its final rule requiring all private sector employers subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal it. The Employee Workplace Freedom Act (H.R. 2833) would rescind this rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.

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When the House of Representatives returns from its August recess it plans to take up a number of bills designed to repeal various labor- and employment-related regulations and agency actions. According to a memorandum issued by House Majority Leader Eric Cantor (R-VA), their regulatory relief agenda will include repeal of specific regulations, as well as fundamental and structural reform of the rule-making system. One of the first bills the House will consider the week of September 12 is the Protecting Jobs From Government Interference Act (H.R. 2587), legislation that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer its operations under any circumstance. The House Committee on Education and the Workforce narrowly approved this bill on July 21, 2011.

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On August 25, 2011, the National Labor Relations Board issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The rule was published in the Federal Register on August 30, 2011 and will be effective 75 days later, on November 14, 2011. For more information on this rule and employer requirements, continue reading Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles.

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While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012.  Continue reading this entry at Littler's Labor Relations Counsel. 

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The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.  Continue reading this entry at Littler's Labor Relations Counsel.

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Likely in response to the National Labor Relations Board’s controversial proposed rule that would provide for expedited representation election procedures, Sen. Jim DeMint (R-SC) introduced legislation this week that would establish longer timeframes and due process requirements for the election process. Specifically, the Fair Representation in Elections Act of 2011 (S. 1425) (pdf) would add the following provision to Section 9(b) of the National Labor Relations Act:

No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.

Continue reading this entry at Littler's Labor Relations Counsel.

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UPDATE: On July 21, 2011, the House Committee on Education and the Workforce approved this bill by a vote of 23-16 along party lines.

A bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances is being fast-tracked in the House of Representatives. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), is scheduled for markup by the House Committee on Education and the Workforce on Thursday, July 21, 2011.  Continue reading this entry at Littler's Labor Relations Counsel. 

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As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. Continue reading this entry at Littler's Labor Relations Counsel.

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During a web chat run by the Office of Labor Management Standards (OLMS) to discuss the agency’s regulatory agenda, OLMS Director John Lund fielded several questions – but provided few concrete answers – regarding the OLMS’s proposal to narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). This proposal would also expand what constitutes reportable “persuader activities” under the LMRDA, and subject employers and their advisors – including their attorneys – to new reporting requirements. Currently, employers are required to report information regarding persuader agreements with consultants on the Form LM-10, while consultants are required to report related information on the Form LM-20. Narrowing the “advice” exemption and expanding the definition of “persuader activities” would necessarily expand the reporting required on these forms.  Continue reading this entry at Littler's Labor Relations Counsel.

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By Stefan Marculewicz

On Thursday, July 7, 2011, the House Committee on Education and the Workforce held a hearing – Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice – during which the National Labor Relations Board’s proposed changes to pre- and post-representation election case procedures came under fire. Last month, the NLRB issued a proposal that would dramatically change long-standing election procedures. Among other things, the proposed rule would substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. As stated in a committee press release, “taken together, the NLRB’s proposed changes will restrict an employer’s ability to communicate with his or her employees and hinder a worker’s right to make a fully informed decision in a union election.” The Board announced that it would conduct limited public hearings on this issue later this month.  Continue reading this entry at Littler’s Labor Relations Counsel.

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According to the Department of Labor’s semiannual regulatory agenda, (pdf) over the next 10 months the agency plans to develop and implement regulations affecting labor-management relations and occupational safety and health. The agenda – which is published twice a year – outlines all of the regulations the agency expects to actively review, develop or promulgate between April 2011 and April 2012. The Department announced that its agencies “have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.”

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The National Labor Relations Board has announced (pdf) that it will hold one or more public meetings to discuss the controversial proposed changes to the Board’s representation election process. According to the notice to be published in the June 27 edition of the Federal Register, the topics of discussion are limited to issues raised by the proposed rule and suggestions for improving the election process. These meetings are in addition to the solicitation of formal written comments as outlined in the Federal Register.  Continue reading this entry at Littler's Labor Relations Counsel. 

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By Jeffrey C. Kauffman

DOL estimates new interpretative standards will triple the number of LM-10 Employer Reports filed annually and predicts a twelve-fold increase in LM-20 Reports required from firms engaged in “persuader activities” as newly defined.

If the DOL proposals take effect, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements. The ambiguity of the new regulatory standards, coupled with potential criminal sanctions for willful non-reporting, potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns.  Continue reading this entry at Littler's Labor Relations Counsel. 

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By Stefan Marculewicz

In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. 

Continue reading this entry at Littler's Labor Relations Counsel. 

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Earlier this week Rep. Steve King (R-IA) reintroduced legislation that would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” Specifically, the Truth in Employment Act of 2011 (H.R. 2153) would add the following provision to Section 8(a) of the NLRA: “Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

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By Peter Petesch

In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process. Continue reading this entry at Littler’s Labor Relations Counsel.
 

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The NLRB’s Office of the General Counsel has issued a new memorandum (pdf) outlining the categories of cases that must be submitted to the agency’s Division of Advice.

Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.

The revised list provides some insight into the nature of cases the GC considers to be of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration.  Continue reading this entry at Littler's Labor Relations Counsel.

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On Friday the House of Representatives approved by a 223-196 margin the Federal Aviation Administration (FAA) Reauthorization and Reform Act of 2011 (H.R. 658) without adopting a number of controversial union-related amendments to the measure. As expected, the chamber narrowly rejected by a vote of 206-220 a bipartisan amendment (pdf) offered by Reps. Steven LaTourette (R-OH) and Jerry Costello (D-IL) that would have stricken from the bill a provision that repeals the contentious new National Mediation Board (NMB) election rule. This rule, which took effect on July 1, 2010, changed the agency’s 75-year-old representation election policy by basing the voting outcome on the majority of those who actually vote, effectively making it easier for employees in the rail and air industries to unionize. The long-standing prior approach based the voting outcome on a majority of employees eligible to vote in the representation elections. As a result, employees choosing not to participate were effectively viewed as “no union” votes. Section 903 of the FAA bill restores the original voting procedure. In September 2010 the Senate failed to pass a resolution that would have accomplished the same end. Although the House has allowed the repeal language to remain in the FAA bill, the provision faces tougher odds in the Senate, which has already approved its own FAA reauthorization bill that does not include this provision. Additionally, the President has threatened to veto any legislation that would change the election rule.

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Rep. Phil Roe (R-TN) has reintroduced the Secret Ballot Protection Act (SBPA) (H.R. 972) in the House of Representatives, legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. In January, Sen. Jim DeMint (R-SC) introduced a companion bill in the Senate. Both bills would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.  Continue reading this entry at Littler's Labor Relations Counsel.

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A bill that would repeal the provisions in the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) that permit employers and unions to draft agreements requiring union membership and payment of union dues or fees a condition of employment was reintroduced in the Senate on Tuesday. Sen. Jim DeMint (R-SC) introduced the National Right-to-Work Act (S. 504), which was co-sponsored by seven others. Sen. DeMint last introduced this measure during the 110th Congress, with Rep. Steve King (R-IA) sponsoring a similar bill in the House in 2009.  This bill has been introduced a dozen times in the House and Senate since 2001, but each time it has failed to sufficiently advance. Currently, twenty-two states already have right-to-work laws in place. A number of the remaining states have similar laws pending in their legislatures.

In a statement, Sen. DeMint said:

No American should be forced to join a union and pay dues to get a job in this country. Many Americans are already struggling just to put food on the table, and they shouldn’t have to fear losing their jobs or face discrimination if they don’t want to join a union. Forced-unionism shields unions from member accountability and has a detrimental effect on the economy. In states where companies are forced to hire only union workers, businesses have struggled to compete while they deal with counterproductive work rules.

This measure has been referred to the Senate Committee on Health, Education, Labor and Pensions. Given the current composition of the Senate, however, this bill will likely share the fate of its predecessors.

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Early Saturday morning, the House of Representatives approved by a 235-189 margin the Full-Year Continuing Appropriations Act (H.R. 1) – otherwise known as the Continuing Resolution (CR) – that would fund the federal government through September 30, 2011. For days the House debated more than 150 of the nearly 600 proposed amendments to the legislation, including several that would deny funds to various agencies to implement the new health care reform law.  Continue reading this entry at Littler's Healthcare Employment Counsel. 

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The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”  Continue reading this entry at Littler’s Labor Relations Counsel.

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On Wednesday, the full House Committee on Education and the Workforce held a hearing to discuss the policies and priorities of the Department of Labor. Earlier in the week, the agency released its 2012 budget request, which seeks $12.8 billion in discretionary budget authority and 17,848 full-time equivalent employees (FTE). Although the proposal would reduce the Department’s overall discretionary spending by 5% from current levels, the budget would increase funding for the agencies charged with regulating and enforcing worker protections. Several divisions within the DOL – the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), and the Office of Federal Contract Compliance Programs (OFCCP) – would each receive additional funding under a budget that allocates a total of $1.8 billion for DOL’s worker protection agencies. Given President Obama’s plan to freeze all non-security discretionary spending and DOL’s overall discretionary budget reduction, the increase in resources for worker protection demonstrates the Administration’s continued commitment to enhancing the regulation and enforcement of labor and employment laws. For a complete analysis of the DOL’s budget request, see Littler’s ASAP: U.S. Department of Labor's 2012 Budget Shows Increasing Resources Toward Regulation and Enforcement of Employment Laws.

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The House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.”  Continue reading this entry at Littler’s Labor Relations Counsel.

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Although the pace has slowed somewhat, lawmakers continue to introduce new labor and employment legislation. The following bills have been introduced during the second month of the 112th Congress:

Wage and Hour

Rep. Donna Edwards (D-MD) reintroduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services (WAGES) Act (H.R. 631) would mandate that tipped employees be paid at least $3.75 per hour. This amount would increase to $5 per hour a year after enactment. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater. Although this bill would have a significant impact on the service industry if enacted, its chance of passage this term is slim.

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On January 27, Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (SBPA) (S. 217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Essentially, this measure would make it an unfair labor practice under the NLRA for an employer to recognize a union that has not been selected via secret ballot. In addition, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.  Continue reading this entry at Littler's Labor Relations Counsel. 

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Although it is considered a long-shot attempt, President Obama is trying once again to seat controversial nominee Craig Becker to the National Labor Relations Board for a full term. First nominated in July 2009 and seated via recess appointment in April 2010, Becker, who served as Associate General Counsel to both the SEIU and the AFL-CIO, has not tread an easy path to the NLRB and faces certain opposition in light of Obama’s latest move.  Continue reading this entry at Littler’s Labor Relations Counsel.

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On Wednesday, the House Committee on Education and the Workforce held a hearing to discuss the state of the American workforce. Panelists pointed to a number of factors that they believe hinder job creation and economic growth, and made suggestions to jump-start the economy.

Robert McDonnell, Governor of Virginia, claimed that “excessive federal regulations” and the new health care requirements were imposing significant burdens on small businesses. Specifically, McDonnell criticized the National Labor Relations Board’s proposed rule that would require almost all private sector employers to post in the workplace a notice to employees outlining their rights under the National Labor Relations Act. McDonnell explained that this proposed notice “lists seven bullet points that state employees have the right to organize, form or join a labor union and repetitively state they have the right to negotiate their wages, benefits and working conditions with their employer. This is counterproductive and detrimental to the message we are trying to send in Virginia.”

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Despite the initial focus on health care repeal, several lawmakers have introduced labor and employment-related legislation during the first two weeks of the new 112th Congress. Some aim to tweak existing laws, while others call for more massive overhauls. Rep. Michele Bachmann (R-MN), for instance, introduced a bill (H.R. 87) the first day of the new legislative term to repeal the Dodd-Frank Wall Street Reform and Consumer Protection Act which was signed into law on July 21, 2010. This bill contains several employment related provisions dealing with executive compensation, arbitration, and whistleblower protections. Although the chances of repealing the Dodd-Frank Act are slim, greater scrutiny of and challenges to its implementation are expected.

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On Friday, John Lund, Director of the Office of Labor-Management Standards (OLMS), conducted an online chat to discuss the agency’s upcoming regulatory activities. Lund noted, for example, that by July 2011, the agency plans to issue a final rule on Form LM-30, the Labor Organization Officer and Employee Report required under the Labor-Management Reporting and Disclosure Act (LMRDA), “to identify potential conflicts of interest between the labor organization officials and their labor organizations.” A proposed rule to revise this disclosure form was published in August 2010.  Continue reading this entry at Littler's Labor Relations Counsel. 

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President Obama has nominated Terence F. Flynn to be a member of the NLRB. As expected, Obama has also named Lafe E. Solomon to be the agency’s General Counsel (GC). Solomon has been serving as acting GC since former GC Ronald Meisburg stepped down in June eight weeks shy of the end of his term. Since both nominations have been forwarded to the Senate for confirmation, it is expected that the two nominees will be voted on as a package deal.

Flynn currently works as Chief Counsel to the lone Republican NLRB member Brian Hayes, having served in the same capacity for former Republican member Peter Schaumber. Schaumber left the Board in August after his second term expired. Prior to his position at the NLRB, Flynn worked in private practice. If the Senate confirms Flynn, the NLRB will once again be operating with a full five-member Board.

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced (pdf) a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign.  Continue reading this entry at Littler's Labor Relations Counsel.

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On December 22, 2010, the National Labor Relations Board published a proposed rule (pdf) that would require all private sector employers covered by the National Labor Relations Act to post a notice informing employees of their NLRA rights. This requirement would be imposed on all employers covered by the NLRA even if there is no union in place. The notice would be similar in form and content to the notice (pdf) the Department of Labor recently approved for use by federal contractors. As stated in a fact sheet, (pdf) the purpose of the proposed rule is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” Unlike the rule for federal contractors, this proposed rule would apply to the vast majority of private sector employers and would create significant compliance obligations, along with serious potential non-compliance liability, on most employers.  Continue reading this entry at Littler’s Labor Relations Counsel.

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On Monday the Department of Labor (DOL) will publish its Semiannual Regulatory Plan (pdf) in the Federal Register. The Regulatory Plan is a subset of the DOL’s regulatory agenda and contains a statement of the DOL’s regulatory priorities and actions it considers to be the most important and significant. The full DOL regulatory agenda will be made available on Monday and will be posted on www.reginfo.gov. The regulatory agenda lists the regulations the DOL expects to have under active development at any stage for the upcoming one-year period, as well as those actions completed within the past six months. The DOL’s regulatory agenda indicates that the Occupational Safety and Health Administration (OSHA) will be very active. Specifically, OSHA is taking steps to develop rules governing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes. OSHA will also undertake a routine review of its Bloodborne Pathogen Standard to assess whether there is still a need for such a standard. At the proposed rule stage, OSHA has developed possible regulations governing occupational exposure to crystalline silica.

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With its December 6 decision in Dana Corp., 356 NLRB No 49, (pdf) the Obama Board has given its approval to broader use of agreements between employers and unions designed to encourage the organization of an employer’s non-represented workforce. The decision represents a step forward in the Obama Board’s agenda for changing existing interpretations and applications of U.S. labor law in ways that labor organizations hope will ensure its continuing relevance and vitality in the twenty-first century. For some, the decision suggests that the Board may be privileging the institutional interests of labor unions over the individual or even collective interests of the employees whom federal labor law was designed to protect.  Continue reading this entry at Littler’s Labor Relations Counsel.

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The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will issue an interim rule (pdf) that adopts the Department of Labor’s final rule implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) The DOL issued its final rule on this EO last May. The EO at issue mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA), and revokes a Bush-era EO that had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment.  Continue reading this entry at Littler’s Labor Relations Counsel.

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As expected, the Senate defeated a motion to advance the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991) on Wednesday by a vote of 55 to 43, despite a last-ditch attempt to move the measure before the new Congress takes over in January. The PSEECA, which was reintroduced last week, would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them; establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The failure to muster the 60 votes needed to overcome a filibuster means that this measure has little chance of becoming law in the foreseeable future.

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Sen. Harry Reid (D-NV) this week reintroduced the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991), legislation that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the measure would establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights.

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Tuesday's historic election radically changed the composition of Congress and the balance of power in Washington. While a few election results are still trickling in, Republicans are projected to gain around 60 seats in the House of Representatives, regaining majority control. Democrats will still control the Senate, albeit with a much slimmer margin. Senate Republicans will increase their numbers from 41 to 47 seats, with the outcome of the race in Washington still uncertain. Whether the shift in power in Congress produces compromise or gridlock remains to be seen. What is clear is that this new political landscape will necessarily alter the Obama Administration's labor and employment agenda. For more information on what employers can expect during the remaining weeks of the 111th Congress and the next Congress, continue reading Littler’s ASAP: How Will the Midterm Election Results Impact Labor & Employment Policy?

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Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.  Continue reading this entry at Littler's Labor Relations Counsel. 

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We are pleased to announce two new additions to the Littler blogroll:

Labor Relations Counsel
Brought to you by Littler's Labor Management Relations Practice Group, the Labor Relations Counsel blog targets meaningful legal developments, including appellate court decisions, NLRB and NMB decisions, and administrative rules and regulations. During this time of enormous governmental change and shifts in strategy and style of powerful labor unions, Littler's history and depth of experience in labor relations gives its attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments.

Digital Workplace Blog
The Digital Workplace Blog is a unique collaboration between Littler Mendelson and Stuart N. Brotman Communications, bringing together legal and business minds to address issues arising in the digital workplace. This approach is designed to provide readers with a comprehensive understanding of the issues, with Stuart N. Brotman Communications covering developments from a management perspective, and Littler examining the legal implications of technology in the workplace.

To receive email alerts of new postings, please enter your email address in the Subscribe box on each blog’s homepage.

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According to a recent Wall Street Journal article, on October 7 the AFL-CIO, in conjunction with an affiliate group Working America, will launch a searchable online database of more than 400,000 employers that allegedly have outsourced jobs and/or violated workers’ rights. To learn more about this development, please continue reading this entry on Littler's Labor Relations Counsel blog.

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Many have speculated that the National Labor Relations Board may seek to implement through the Board’s processes certain aspects of the Employee Free Choice Act in lieu of legislative action. To wit, in a move that partially implements EFCA’s “enhanced enforcement” provisions, the NLRB Office of the General Counsel (GC) has put into place a program designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns.  Continue reading this entry at Littler’s Labor Relations Counsel.

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On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.  Continue reading this entry at Littler’s Labor Relations Counsel.

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During a question and answer session held in Fairfax, Virginia on September 13, President Obama acknowledged the political reality that the Employee Free Choice Act’s (EFCA) (H.R. 1409, S. 560) prospect of passage this session “is not real high.” Obama claimed that EFCA, often referred to as the “card check” bill, “is in response to 20, 30 years where it’s become more and more difficult for unions to just get a fair election and have their employers actually negotiate with them” – ignoring substantial evidence to the contrary. The President recognized, however, that “[f]rankly, we don’t have 60 votes in the Senate” to pass it. Given the current political trends leading up to this year’s mid-term Congressional elections, it seems unlikely that this situation will change in the foreseeable future.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit:  Pinewood Portrait Studios

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President Obama has announced that he plans to nominate Thomas M. Beck (R) to be a member of the National Mediation Board (NMB). The NMB is an independent federal agency tasked with facilitating labor-management relations in the airline and railroad industries. Specifically, the NMB manages the dispute resolution process involving collective bargaining disputes in this transportation sector. If confirmed, Beck is expected to replace fellow Republican Elizabeth Dougherty, whose term expired on June 30. Also serving on the three-member NMB is Chairman Harry Hoglander (D) and Member Linda Puchala (D).  Continue reading this entry at Littler's Labor Relations Counsel. 

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The National Labor Relations Board on August 27, 2010, issued its long-awaited decision in a trio of cases involving the use of stationary banners by unions to advertise secondary boycott activity to the public. In a 3-2 decision split along partisan lines, the Board majority (Chairman Liebman and Members Becker and Pearce) concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act ( the “Act”). The decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (2010) has the practical effect of broadening the arsenal of weapons organized labor can bring to bear to force a primary employer in a labor dispute to yield to union demands. As a result, the decision may signal an increase in the frequency of secondary boycott activity and the embroiling of neutral employers in labor disputes not of their own making.

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As the NLRB regained its five-member status, it set to task at the back log of cases awaiting it. On August 27, 2010 it decided Independence Residences, Inc., 335 NLRB No. 153 (2010), a 2003 representation case that even Chairman Liebman noted has languished before the Board for “an unconscionably long time.” In 2003, the Union of Needletrades Industrial and Textile Employees (UNITE) began organizing at Independence Residences, Inc., a private nonprofit entity, and filed a representation petition with the Board. A majority of employees voted for the union in the subsequent election, and the employer filed objections seeking to set aside the election results, arguing that a New York state law barring the use of state funds for certain union campaign activities prevented a fair election. The heart of the issues in Independence Residences was whether New York State Labor Law Section 211-a interfered with the employer’s ability to communicate with employees during the election campaign, warranting the setting aside of the election results.

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After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB  recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

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As has been anticipated in labor circles since President Obama took office, on Tuesday, the National Labor Relation Board (NLRB or “Board”) announced (pdf) that it would reconsider its decisions in Dana Corp., 351 NLRB 434 (2007) (pdf) and MV Transportation, 337 NLRB 770 (2002) (pdf), cases that address voluntary recognition agreements and successor employers, respectively. The five-member Board agreed 3-2 along party lines to consider two groups of consolidated cases that ask the agency to overturn in whole or in part its rulings in these two earlier decisions. NLRB Chair Wilma Liebman dissented in both cases when they were originally issued and the decisions are part of a larger group of controversial decisions issued by the Bush-era Board that organized labor is dedicated to revisiting.

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Ending a four-year schism, the Laborers’ International Union of North America (LIUNA) has decided to rejoin the AFL-CIO as of October 1, 2010. LIUNA, with more than half a million members in the construction industry, had withdrawn from the AFL-CIO in 2006 to affiliate with Change to Win, a competing labor movement comprised of the LIUNA, the International Brotherhood of Teamsters (IBT), the Service Employees International Union (SEIU), the United Farm Workers of America (UFW), and the United Food and Commercial Workers International Union (UFCW). The SEIU instigated this mass defection from the AFL-CIO to form Change to Win in 2005, purportedly due to internal disagreements about the direction of the organization. AFL-CIO president Richard Trumka has made it a mission to unify the labor movement.

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The Department of Labor’s Office of Labor-Management Standards (OLMS) has published a proposed rule (pdf) to modify union disclosure Form LM-30 and its instructions. The Labor-Management Reporting and Disclosure Act (LMRDA) requires labor organization officers and employees and their spouses and minor children to publicly disclose certain financial interests held, income received, and transactions engaged in to prevent any conflicts of interest. Such disclosures are made on the Form LM-30, (pdf) which was last amended in 2007.  According to the OLMS, these changes “left unresolved fundamental questions about the reporting obligations of union officials, questions raising policy and legal issues warranting reexamination by the Department.” Therefore, on March 19, 2009, the OLMS issued a non-enforcement policy that allowed affected parties to file either the 2007 or previous LM-30 form while it sought input as to whether and how to amend the form yet again. The agency claims that the proposed changes published in the August 10 edition of the Federal Register address “the complexity of the form and its instructions, as well as the scope and extent of the LM-30 reporting obligations.”

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On Tuesday, supporters of the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act (S. 3628) failed to gain sufficient votes to advance the measure in the Senate. By a vote of 57-41, the motion to invoke cloture on the bill fell short of the 60 votes necessary to end debate. This campaign finance legislation would require most organizations to report to the Federal Election Commission (FEC) the origins of the funds used for political advertising, and place strict limits on political spending by most federal contractors and foreign-controlled companies. This bill was introduced in response to the Supreme Court’s decision in Citizens United v. FEC released earlier this year that eased the ban on corporate and union political spending by holding that such restrictions are unconstitutional.

Last month, the House of Representatives narrowly cleared its version of the bill (H.R. 5175) by a 219-206 margin. Provisions in this draft seen as carving out exceptions for labor unions had drawn heavy fire from the business community. While the Senate version removed some of the offending provisions, it still includes sections that limit spending by companies with significant federal contracts or a high percentage of foreign investors, restrictions that largely do not affect labor unions.

Photo credit:  MBPHOTO, INC.

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Late last week, the Senate rejected advancing the supplemental appropriations bill approved by the House of Representatives (H.R. 4899).  The House-passed version of the bill included an amendment (pdf) providing public safety employees with collective bargaining rights. Specifically, the amendment incorporated provisions of the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194), which would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The House tacked on this provision, in addition to other domestic spending measures, before it approved the bill on July 1. It is not surprising that the Senate rejected this amended version, considering last May, Sen. Majority Leader Harry Reid (D-NV) had also introduced the PSEECA as an amendment to the Senate’s appropriations bill, but withdrew it shortly thereafter. It is likely that the House will take up the Senate-approved war appropriations bill that does not contain the additional spending measures before Congress adjourns for the August recess.

Given that the standalone bill has little chance of advancing this legislative term, lawmakers in the House likely included the PSEECA in the larger spending bill to increase its odds of passing.

Photo credit:   MBPHOTO, INC.

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The Air Transport Association of America (ATA) has filed a notice of appeal in its lawsuit challenging the National Mediation Board’s (NMB) new controversial election rule. (pdf)  On June 25, the United States District Court for the District of Columbia granted the NMB’s motion for summary judgment and denied the ATA’s motion to preliminarily block the NMB from implementing its rule that overturns the election procedure that has been in place for 75 years. Specifically, the new rule makes it easier for workers in the airline and railroad industries to unionize by basing the voting results on the majority of those who actually vote, as opposed to allowing the majority of employees eligible to vote to determine the outcome.

On May 17, the ATA filed suit challenging this new rule on the grounds that – among other reasons – the NMB’s decision to change the established procedure was done without legitimate justification, and was thus “arbitrary, capricious [or] an abuse of discretion.” In addition, the ATA avers that the decision to deviate from the longstanding rule was predetermined and did not take into consideration the concerns raised by the industry and by NMB Chair Elizabeth Dougherty, who herself deemed the rule to be “the most dramatic policy shift in the history of the agency.”

For more information on this development, see Littler’s ASAP: District Court Clears Way for Implementation of New NMB Rules for Union Elections in Air and Rail Industries by Jack Lambremont and Chip McWilliams.

Photo credit:  ericsphotography
 

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The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.

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In the wake of the recent Supreme Court decision holding that the National Labor Relations Act (NLRA) requires that the National Labor Relations Board (NLRB) must operate with at least three members in order to exercise its full authority, the NLRB has issued a roadmap (pdf) explaining how it will handle cases sent back to the agency that were decided by only two acting members. It is estimated that nearly 600 cases were adjudicated in this fashion during the 27-month period before President Obama used his recess appointment power in March to seat members Craig Becker (D) and Mark Pearce (D). The Senate confirmed the nominations of Pearce and Brian Hayes (R) in June, restoring the NLRB to full power.

According to the NLRB, at the time the Supreme Court issued its June 17 decision, “96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.” As discussed in the NLRB press release, each of the remanded cases will be considered by a three-member panel of the Board, which will include Chairman Wilma Liebman (D) and NLRB Member Peter Schaumber (R), the two members who initially decided the remanded cases. “Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.” With respect to two-member Board rulings not already challenged in the federal appellate courts, the press release stated that it is unclear at this time how many of such rulings can or will be contested and how many may now be moot.

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Late Thursday, the House of Representatives approved the Supplemental Appropriations Act of 2010 (H.R. 4899) that included an amendment (pdf) incorporating the Public Safety Employer-Employee Cooperation Act (PSEECA), which would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. As explained in a press release issued by Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, the bill that cleared the House:

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A recent report published by the Congressional Research Service (CRS) has called into question lawmakers’ claims that the Constitution’s commerce clause provides legislators the authority to enact the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194). This bill, which was first introduced in 1995, has been reintroduced in the 111th Congress in the House by Rep. Dale Kildee (D-MI) and in the Senate by Sen. Judd Gregg (R-NH) in 2009, and by Sen. Harry Reid (D-NV) in 2010. In addition, a proposed amendment (pdf) to the 2010 Supplemental Appropriations Bill incorporates the PSEECA into the broader spending measure, which the House is expected to vote on this week.

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On Friday, a federal court judge issued an order (pdf) that will effectively permit the National Mediation Board’s (NMB) final rule (pdf) changing its 75-year-old representation election policy to proceed as planned. On May 17, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the NMB from implementing this change to the election process that will make it easier for unions to organize airline and railroad employees. Under the long-established approach, a majority of employees eligible to vote in representation elections determined the outcome of the election. As a result, employees who chose not to participate are effectively viewed as “no union” votes. The NMB’s new rule changes this policy by basing the voting outcome on the majority of those who actually vote, as is closer to the practice in non NMB-governed industries.

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On June 24, 2010, the U.S. Supreme Court issued a pro-employer opinion in Granite Rock, Inc. v. International Brotherhood of Teamsters, et al., (pdf) providing valuable guidance on the arbitrability of disputes over the timing of the formation of collective bargaining agreements.

The Court (7-2) held that the question of exactly when the parties formed an agreement to arbitrate certain disputes was not itself subject to resolution through arbitration. The Court also declined to recognize Granite Rock’s cause of action under Section 301 of the Labor Management Relations Act (LMRA) against the International Brotherhood of Teamsters’ (IBT) for tortious interference with a collective bargaining agreement. The Court remanded the case to the lower court to allow Granite Rock to proceed against the International on the theory that the local union was acting as the IBT’s agent when it refused to abide by the no-strike clause of the parties’ collective bargaining agreement.

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The National Labor Relations Board’s (NLRB) general counsel (GC) has issued guidance (pdf) to the agency’s regional officers and directors on how to process unfair labor practice (ULP) charges involving employee class action waivers in mandatory arbitration agreements. The GC explained that questions have arisen “regarding the validity of mandatory arbitration agreements that prohibit arbitrators from hearing class action employment claims while at the same time requiring employees to waive their right to file any claims in a court of law, including class action claims.” In essence, the GC concluded that such class action waivers do not per se violate the National Labor Relations Act’s (NLRA) provisions allowing employees to engage in protected, concerted activity, but that certain principles must be followed.

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On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:

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The Office of Federal Contract Compliance Programs (OFCCP) has issued a directive on its verification procedures under Executive Order (E.O.) 13496, Notification of Employee Rights under Federal Labor Laws. (pdf) This E.O. mandates that all government contracting departments and agencies include a provision in government contracts covered by the order stipulating that contractors and subcontractors post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA). The Department of Labor’s Office of Labor Management Standards (OLMS) published a final rule (pdf) implementing this E.O. last month. The OFCCP is responsible for investigating complaints, performing compliance evaluations, conciliating compliance issues, and referring violations to the OLMS for enforcement. The directive published online this week outlines the processes and procedures it will use to perform these tasks.

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Potentially invalidating hundreds of National Labor Relations Board (NLRB or “Board”) decisions, the U.S. Supreme Court has held that the National Labor Relations Act (NLRA) requires that the NLRB must operate with at least three members in order to exercise its full authority. In New Process Steel v. NLRB, (pdf) the Court rejected the argument that the NLRA’s delegation and quorum clauses enable the Board to act with only two members, which it had done from January 2008 through March of this year when President Obama used the recess appointment process to add members Craig Becker and Mark Pearce to the two-member panel.

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On June 9, 2010, the National Labor Relations Board (NLRB or “Board”) made a move wholly consistent with its anticipated commitment to implementing “significant change.” Specifically, the Board revealed that it is exploring the future use of electronic and internet voting in representation elections. Pursuant to longstanding secret ballot election standards, no such electronic or internet means for casting votes (remote or otherwise) in a Board-conducted election is recognized as permissible. As the controversial and newest Board Members Craig Becker and Mark Pearce start getting situated among their two sitting colleagues, the NLRB’s efforts to alter well-settled Board election standards seem to be in full swing.

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As a result of the NLRB’s June 3, 2010 decision (pdf) refusing to review a regional director’s ruling that the interns and residents at St. Barnabas Hospital in the Bronx, New York, are employees, the ballots they cast in a union election on June 18, 2009 will shortly be counted. The results of the vote will determine whether the hospital’s interns and residents will be joining the Service Employees International Union (SEIU). The central issue presented by the election petition filed by an SEIU local in 2009 was whether the hospital’s interns and residents were “employees” with the right to organize, or students not covered by the National Labor Relations Act (NLRA).  Continue reading this entry at Littler's Healthcare Employment Counsel blog. 

Photo credit:  Steve Debenport Imagery

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The New York Regional Office of the National Labor Relations Board (NLRB) has dismissed a petition filed by the Graduate Student Organizing Committee (GSOC/UAW Local 2110) seeking union recognition for NYU graduate student teaching and research assistants. According to a press release, (pdf) the dismissal was based on the Board’s 2004 finding in Brown University (pdf) that graduate student assistants are not statutory employees subject to the National Labor Relations Act (NLRA). The regional office’s decision now leaves the door open for the union to seek Board review of the Brown decision “on the basis that it was wrongly decided both as a matter of law and policy.” Given the new composition of the NLRB following President Obama’s recess appointments in March, a reversal of the earlier decision is entirely possible.

In addition to potential Board action, legislation has been introduced in both the House and Senate this term that would reverse the Board’s decision in Brown. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461, S. 813) would effectively allow private university students who serve as teaching and research assistants to form or join a union.

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Ronald Meisburg, General Counsel (GC) to the National Labor Relations Board (NLRB), plans to leave the Board eight weeks shy of the end of his term in order to enter private practice. A former management-side lawyer, Meisburg was seated via recess appointment as a Board member in 2004, and as General Counsel in 2006. Meisburg, after the Senate confirmed his nomination in August 2006, was to serve as GC until August 14, 2010. His vacancy will allow President Obama to appoint his own choice to fill this position, which has been held by a Republican since 2001. In March, Obama used the recess appointment process to seat Democrats Craig Becker and Mark Pearce as NLRB members.  Republican nominee Brian Hayes was not similarly seated, and has yet to receive a Senate confirmation. The sole remaining Republican member, Peter Carey Schaumber, will complete his term on August 27, 2010.

Although a significant amount of controversy surrounded Obama’s choice of former union general counsel Becker as an NLRB member, the general counsel pick could be equally contentious, given the enforcement power that accompanies the position. The NLRB traditionally makes changes to labor law through its rulings and the general counsel determines which cases are put before the NLRB. Therefore, which cases the general counsel chooses to pursue are a critical component with regard to what issues the NLRB will have an opportunity to decide. The selection of the person who determines which cases will be considered is likely to be as controversial as the selection of individuals who ultimately will decide those cases. At this point, however, there is no clear front-runner as Meisburg’s replacement. In a letter to NLRB employees, Meisburg announced that Deputy General Counsel John Higgins will take over any new cases presented to the Board.

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As a result of yesterday’s status conference in the federal lawsuit filed by the Air Transport Association of America (ATA) to stop the National Mediation Board (NMB) from implementing the May 10, 2010 Final Rule (pdf) changing its 75-year-old election procedures, the NMB will delay the effective date of its new rule from June 10 to June 30. In the meantime, the court is expected to hear arguments on June 3 on ATA’s motion to take expedited discovery stemming from its request for a preliminary injunction against the NMB’s rule. The hearing on the injunction motion will then take place June 14. In addition, the court allowed the United States Chamber of Commerce, a group of Delta Airlines employees represented by the National Right to Work Foundation, and the International Brotherhood of Teamsters to intervene in the lawsuit. 

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On Monday, the Department of Labor’s Office of Labor-Management Standards (OLMS) held a public meeting to discuss potential changes to employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” The agency requires employers and consultants to annually fill out certain disclosure forms regarding these arrangements. As the law currently stands, Section 203(c) exempts employers and consultants from filing these reports by reason of the consultant’s giving or agreeing to give “advice” to the employer. During Monday’s hearing, the OLMS indicated that it believes the current interpretation of the advice exception was overbroad and seeks to narrow it through rulemaking, as outlined in its semiannual regulatory agenda. (pdf)

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The Department of Labor’s Office of Labor Management Standards (OLMS) will publish in tomorrow’s Federal Register a final rule (pdf) implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  This EO mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA).

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On May 17, 2010, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the National Mediation Board (NMB) from implementing a change to its 75-year-old election process that would make it easier for unions to organize airline and railroad employees. In the lawsuit, the ATA claims that NMB’s Final Rule should be set aside because it contravenes the clear and unambiguous language of the Railway Labor Act. The association also argues the NMB’s conduct was “arbitrary, capricious [or] an abuse of discretion” in that the NMB, among other actions, departed from its long-standing rule without legitimate justification, predetermined its course without regard to concerns raised by the industry, and selectively borrowed only pro-union provisions from the labor statute that applies to non-rail and non-airline employees.

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The National Labor Relations Board (NLRB or “Board”) is inviting “all interested parties” to file amicus briefs in pending cases involving whether employers should be required to electronically post Board-ordered remedial notices, and whether the Board should routinely order compound interest on back pay and other monetary awards in unfair labor practice (ULP) cases. The NLRB considers these issues to be “significant” for employees, employers and unions.

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The same day the National Mediation Board (NMB) published a final rule (pdf) amending its representation election procedure to make it easier for employees in the air and rail industries to unionize, Sen. Johnny Isakson (R-GA) introduced a measure in opposition to this change. Senate Joint Resolution 30 calls for Congressional disapproval of the agency’s action, which is the first step in allowing Congress to overturn the rule.

As reported in The Hill’s Blog Briefing Room, Isakson said that he “will have the signatures necessary to discharge my resolution of disapproval, to bring about a vote on the floor of the Senate.” The resolution was introduced with 25 co-sponsors. Thirty votes are needed to bring the measure to the Senate floor for a vote, and 51 are needed to pass the resolution in the Senate. There are currently 41 Republican senators, so in the event the resolution does make it to the floor, it will need to garner a level of bipartisan support to succeed. As Isakson stated during a news interview, “If it's a partisan vote, we'll lose. If it's a pragmatic, thoughtful vote, we'll win.” Isakson considered the rule to be a way of implementing the infamous “card check” provision of the Employee Free Choice Act (EFCA) “by running around the back door, and that's not right.”

This measure has been referred to the Senate Committee on Health, Education, Labor and Pensions (HELP).

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The Department of Labor’s (DOL) Office of Labor Management Standards (OLMS) has launched the Union Elections Advisor, an interactive web site “intended to describe certain rights of union members and candidates in union officer elections, and the responsibilities of union officers and others involved in conducting union officer elections” under the terms of the Labor-Management Reporting and Disclosure Act (LMRDA). Title IV of the LMRDA requires periodic election of union officers and prescribes minimum standards to ensure that such elections are fairly conducted.

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The Department of Labor’s (DOL) Office of Labor Management Standards (OLMS) announced its intent to hold a public meeting to solicit input regarding employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” Employers and consultants are required to annually fill out certain disclosure forms (LM-10, LM-20) regarding these arrangements.

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In tomorrow’s edition of the Federal Register, the National Mediation Board (NMB) is set to publish a final rule (pdf) amending its representation election procedure that has been in place for 75 years, making it easier for employees in the air and rail industries to unionize. Under the existing approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. Therefore, employees who chose not to participate are counted as “no union” votes. Effective as of June 10, 2010, the NMB’s final rule upends this decades-old policy by basing the voting outcome on the majority of those who actually vote, as is the practice in non-NMB-governed industries.

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The Graduate Student Organizing Committee (GSOC/UAW Local 2110) has filed a petition with the National Labor Relations Board (NLRB) demanding union recognition for NYU graduate student teaching and research assistants. In a statement, members said:  “Like any other workers, we want a union so that we can bargain collectively around wage, benefit and workplace issues, and achieve security and stability in the workplace,” adding: “GSOC/UAW Local 2110 is the only union that can guarantee the full collective bargaining rights of NYU graduate employees and represent our interests in ALL of the work that we perform for the university, including teaching, research and administrative services.” Last week, the American Arbitration Association (AAA) verified that a majority of NYU graduate students who serve as teaching and research assistants chose to be represented by Local 2110 in collective bargaining with the NYU administration. If the graduate students’ petition is successful, it would be the first time since 2004 that graduate students at a private university would be deemed covered by federal labor law. That year the NLRB decided in Brown University (pdf) that graduate student assistants are not statutory employees subject to the National Labor Relations Act (NLRA). The NYU graduate students’ petition may present the opportunity for the newly-appointed members of the NLRB to revisit the Brown University decision.

A bill has already been introduced in both the House and Senate this term that would reverse the Board’s decision in Brown.  The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461, S. 813) would effectively allow private university students who serve as teaching and research assistants to form or join a union.

Photo credit: Joshua Hodge Photography

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Service Employees International Union’s (SEIU) secretary-treasurer, Anna Burger, has withdrawn her candidacy for union president, all but ensuring that Mary Kay Henry, an international executive vice president, will take the helm. On April 14, long-time president Andy Stern announced his retirement.  Burger acknowledged that she lacked the votes from SEIU’s executive vice presidents to win the election, slated for May 8, and vowed to work with Henry “to make sure that this is a smooth transition and that our union will continue to help our members do extraordinary things.” In her announcement to withdraw from the race, Burger denied that the support for Henry amounted to a “shift in SEIU’s priorities” or a "rejection of the Stern/Burger agenda.”

Henry has been an employee for the SEIU since 1979 and was elected as an international executive vice president in 2004. Much of Henry’s career with the SEIU has focused on promoting union membership for health care workers.

Photo credit:  SEIU.org

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Update:  This entry has been updated to reflect Stern's official retirement announcement.

Service Employees International Union (SEIU) President Andy Stern announced his retirement on April 14. Stern, who has served in this capacity since 1996, has been a controversial labor figure, having led the departure of several major unions from the AFL-CIO to form the labor affiliate Change to Win in 2005. Stern also was instrumental in the breakup of UNITE HERE, which had been created by the merger of HERE, representing workers in the hotel and food service industries, and UNITE, which organized workers in the textile and apparel industries. The resulting split left some members to form the competing Workers United union, which subsequently affiliated with the SEIU. The remaining members of UNITE HERE, which included mostly former HERE members, rejoined the AFL-CIO.

Stern has led the SEIU to be the fastest-growing labor union in the United States. Although it is uncertain who will permanently replace Stern, a recent New York Times article speculates that SEIU Secretary-Treasurer Anna Burger will take the helm. Burger is also Chair of Change to Win, and will serve as interim president until the SEIU's International Executive Board votes on a successor within the next 30 days.  Other possible candidates include Mary Kay Henry, SEIU’s Executive Vice President.

Photo credit:  SEIU

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In tomorrow’s edition of the Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will publish a proposed rule (pdf) implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.

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In tomorrow’s edition of the Federal Register, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will publish a final rule (pdf) implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6, 2009, EO 13502: Use of Project Labor Agreements for Federal Construction Projects declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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Despite increasing opposition, President Obama on Saturday announced his appointment of 15 individuals to various federal agencies, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Among those appointed was Craig Becker, the controversial NLRB Democratic nominee. Also given a recess appointment to the NLRB was the other Democratic nominee, Mark Pearce. However, the President did not give a recess appointment to the Republican nominee, Brian Hayes. On Thursday, Republican Senators sent a letter to Obama urging him not to do so. Randel K. Johnson, the U.S. Chamber of Commerce Senior Vice President of Labor, Immigration, and Employee Benefits, said of Becker’s appointment: “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” Becker has been widely criticized for advocating admittedly “provocative” positions in this academic writings. During a hearing, Becker tried to distance himself from these statements, such as his belief that a new body of representation election rules should be created to limit employer involvement, including the holding of so-called “captive audience” meetings. Many lawmakers and business interests continue to question, however, whether Becker can be impartial as a member of the Board. Becker’s term will now last until the end of 2011, unless the Senate appoints him to a full term.

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The new health care reform legislation has dramatic implications for all employers. For employers with existing collective bargaining agreements, there are unique considerations, both in the short and long-term. While full implementation of the law is still years away, employers should begin evaluating and preparing for its impact on collective bargaining agreements today.

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On Thursday, all 41 Republican senators signed a letter written by Senators Orrin Hatch (R-UT) and John McCain (R-AZ) urging President Obama not to appoint Craig Becker to be a member of the National Labor Relations Board (NLRB) over the upcoming two-week recess. Expectation has been building that Obama would use this method to seat Becker on the Board over the legislative break.  In a statement, Sen. Hatch claimed:

Craig Becker stands far outside the mainstream of NLRB nominees . . . Given the bipartisan opposition to his nomination, the Administration would be wise to not circumvent the will of the Senate by recess appointing him to the NLRB. There is no place on this powerful board for someone who believes that card check legislation – getting rid of the secret union ballot – can be enacted surreptitiously through regulation.

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It is becoming increasingly likely that controversial National Labor Relations Board (NLRB) nominee Craig Becker will be appointed as a Board member over the upcoming Congressional recess. According to an article in the Atlantic Online, “labor allies of the White House have been given strong indications that such an appointment is highly likely.” Specifically, reports abound that Sen. Tom Harkin (D-IA) has confirmed that President Obama will make the appointment soon. Earlier this month, Labor Secretary Hilda Solis hinted at this possibility during the American Federation of Labor & Congress of Industrial Organization's (AFL-CIO) annual meeting.

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According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.

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Coming one day after the Senate rejected advancing the nomination of Craig Becker to the National Labor Relations Board (NLRB), an op-ed piece by columnist Harold Meyerson in today’s The Washington Post proclaims that the Obama administration has been “close to an unmitigated disaster” for organized labor. According to the article, the Democrats’ loss of the Senate’s 60-seat filibuster-proof supermajority sounded the death knell for the Employee Free Choice Act (EFCA), any alleged “compromise” EFCA legislation, and the possibility to seat Craig Becker as a member of the NLRB. Although the column may have been written as a rallying cry for labor proponents, it is telling that a pro-union columnist is pronouncing labor’s legislative agenda dead so early in Obama’s term.

Photo credit: Christine Gehrig

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On Tuesday, the Senate rejected advancing the nomination of Craig Becker to serve as a member of the National Labor Relations Board (NLRB). Becker’s proponents failed to garner the 60 votes needed to limit debate over his nomination and allow a confirmation vote to occur. The 52-33 vote took place less than a week after the Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination by a party-line 13-10 margin.

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Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

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Sen. Harry Reid (D-Nev.) has filed cloture on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB).  According to the Hill.com’s Blog Briefing Room, Sen. Richard Shelby (R-Ala.) has put a hold on all of Obama’s nominations pending before the Senate, including Becker’s. Therefore, at least 60 Senators must vote to end debate on the nomination – a feat likely made more difficult now that Republican Scott Brown has been sworn in as a Massachusetts senator. The Senate House, Education, Labor and Pensions (HELP) Committee cleared Becker’s nomination on Thursday on a party-line vote. Becker’s cloture vote is scheduled for Monday at 5:00 pm.

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By a party-line vote of 60-37, the Senate has confirmed the nomination of Patricia Smith to be the U.S. Solicitor of Labor. The Senate Health, Education, Labor and Pensions (HELP) Committee had approved her nomination on October 7, but controversy arose when Sen. Mike Enzi (R-Wyo.) accused Smith of making inconsistent statements during her confirmation hearing in May 2009. At issue was Smith’s testimony regarding the New York Wage Watch program, an initiative based on the Neighborhood Watch program that purportedly exposes businesses that violate wage and hour law. Smith is currently the Commissioner of the New York State Department of Labor (DOL), and unveiled the Wage Watch program last year. During her confirmation hearing, Smith denied that outside groups were involved in creating the program, an assertion that has come under fire. Sen. Enzi, Smith’s most vocal critic, has accused her of being a “trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives.” Smith later claimed that she “misspoke” about the timeline of various advocacy group and union involvement in the Wage Watch program. The alleged conflicting testimony threatened to derail Smith’s nomination, but the Senate voted 60-32 to end debate on her nomination on Monday, clearing the way for her confirmation.

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On Thursday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-10 along party lines in favor of Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB). This vote follows a contentious hearing over Becker’s nomination that was held on Tuesday. It was widely believed that once the HELP Committee cleared Becker’s nomination, it would be sent quickly to the Senate floor for a final vote before Republican Scott Brown was sworn in as senator, an event originally scheduled for next Thursday. This plan might be derailed, however, as it was announced yesterday that Brown could be sworn in as early as 5:00 pm today, raising the chances that Senate Republicans will be able to stop Becker’s confirmation.

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On Tuesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). During this hearing, Becker – Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations – tried to distance himself from the controversial positions he has taken in his scholarly writings, and assure committee members that he would be impartial Board member.

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In tomorrow’s Federal Register, the Department of Labor’s Office of Labor-Management Standards (OLMS) will issue a notice of proposed rulemaking (NPRM) (pdf) on its plans to amend regulations under the Labor-Management Reporting and Disclosure Act (LMRDA) requiring labor organizations to file the annual financial disclosure Form T-1, (pdf) Trust Annual Report, about certain trusts in which they are interested. Unions use Form T-1 to disclose financial information about these trusts, such as assets, liabilities, receipts and disbursements. According to a summary of the NPRM, the DOL seeks to amend these regulations on the grounds that the current trust reporting requirement is overly broad and not necessary to prevent the circumvention and evasion of the Title II reporting requirements, which require labor organizations “to disclose its financial condition and operations.” In addition, the DOL considers separate trust reporting requirements as unnecessary, in part because the Department also proposes to return “subsidiary organization” reporting to the Form LM-2 reporting requirements, which it believes is necessary to satisfy the purposes of the LMRDA. Finally, the DOL takes the position that in interpreting the LMRDA’s definition of “labor organization,” the statute’s coverage does not include “intermediate bodies that are wholly composed of public sector organizations.”

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On February 2 at 4:00 pm, the Senate Committee on Health, Education, Labor and Pensions (HELP) will hold a hearing on the controversial nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). In December, the Senate returned the nomination to the White House for reconsideration after Sen. John McCain (R-Ariz.) put a hold on it. Instead of withdrawing the nomination, President Obama re-nominated Becker last week.

Many in Congress and the business community fear that Becker – who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations – would try to implement portions of the beleaguered Employee Free Choice Act (EFCA) through rulemaking or Board decisions. Now that EFCA’s chances of passage this term are greatly diminished by the new composition of the Senate, organized labor may look to the NLRB to advance its agenda. A HELP Committee vote could come as early as February 4. In October, the HELP Committee approved Becker’s nomination by a 15-8 vote.  At that time, the HELP Committee also approved the nominations of Mark Pearce and Brian Hayes by voice vote. It is believed that Democrats want to submit all three nominees for a full Senate vote as a package, a move that would place less scrutiny on Becker as an individual.

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President Obama’s State of the Union Address may be more notable for its omissions than its content. Not once in the hour and ten minute speech did Obama mention organized labor, even though a large portion of the Address was dedicated to job creation efforts. Claiming that jobs must be the “number one focus of 2010,” Obama outlined a number of initiatives to advance this aim, none of which directly promoted union membership.

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Scott Brown’s (R) astonishing win in last week’s Massachusetts special election was made possible, in part, by the state’s union members. According to an article in Politico, 49 percent of union members backed the Republican state senator, while 46 percent cast their vote in favor of Massachusetts Attorney General Martha Coakley (D). By electing Brown as the 41st Republican U.S. senator, organized labor dramatically diminished the chances that their number one legislative priority – the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) – will pass Congress this year. Now that Senate Democrats no longer have a filibuster-proof majority, it is unlikely that this controversial and increasingly unpopular bill will become law.

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On Wednesday, President Obama re-submitted to the Senate his nomination of controversial candidate Craig Becker to be a member of the National Labor Relations Board (NLRB). Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April, and officially nominated him in July.  The Senate Health, Education, Labor and Pensions Committee approved Becker’s nomination – as well as those of Mark Pearce and Brian Hayes – in October.  The belief was that all three nominations would be presented to the Senate as a package, a move that many Republican lawmakers and members of the business community opposed, as doing so would limit the Senate’s ability to evaluate Becker on an individual basis. Becker’s divisive views regarding an employer’s role during a representation election campaign as well as the fear that he would be willing to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act were likely factors causing Sen. John McCain (R-Ariz.) to put a hold on Becker’s nomination. Before the holiday recess, the Senate returned his nomination to the White House for reconsideration.

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A reported deal has been reached between the White House and union leaders regarding the proposed 40 percent excise tax on high cost (“Cadillac”) healthcare plans for inclusion in the final healthcare overhaul bill. This tax – first appearing in the Senate version of the legislation – is favored by President Obama, but has been heavily criticized by both House Democrats and organized labor.

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Speaking yesterday at the National Press Club, AFL-CIO president Richard Trumka predicted that the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) would be passed in the first quarter of 2010, and signaled that union leaders were going to renew their efforts to push for this legislation. Trumka declined, however, to say whether he would support an amended version of the bill that lacked the “card check” provision allowing the National Labor Relations Board to certify the union as the exclusive bargaining representative if a majority of employees signed authorization cards. Rumors of a so-called “compromise” bill that omits this provision but retains the section calling for binding arbitration in the event a first contract is not reached within a specified period of time—in addition to provisions outlining shorter election periods and greater union access to the workplace during the campaign period—have been floating around for months. Business advocates have long considered these terms to be as problematic and intrusive for employers as the card check provision. So far, no revised version of EFCA has been introduced.

Although Trumka’s statement is a bold one, it is unclear how much Congressional support remains for this controversial bill, especially before midterm elections. In the months following its introduction in March 2009, a number of key senators publicly stated their opposition to EFCA’s impact on secret ballot elections, if not the entire bill itself. Whether these same lawmakers would support EFCA absent the card check provision remains to be seen.
 

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Although there has been no official White House announcement, The New York Times has reported that President Obama plans to re-nominate Craig Becker to be a member of the National Labor Relations Board (NLRB). On December 24, the Senate returned Becker’s controversial nomination to the President for reconsideration.  The choice of Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, has been heavily criticized by members of Congress as well as by business advocates. Becker supports passage of the Employee Free Choice Act (EFCA), and has opined that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

If Obama sends his nomination back to the Senate, the confirmation process would begin again, and, presumably, face the same opposition as it did last year.

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Before the Senate adjourned for the holiday break, it returned to the President for reconsideration (pdf) the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). President Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April.  Becker was officially nominated in July.

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On Monday, three nursing associations officially merged to form the largest labor union for medical professionals in this country. The new National Nurses United (NNU) combines the members and financial resources from the California Nurses Association, the United American Nurses, and the Massachusetts Nurses Union. With an estimated 150,000 members, this new union will be able to wield a significant amount of influence over the medical industry and healthcare reform efforts.

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A final rule (pdf) slated for publication in tomorrow’s Federal Register will revoke the requirement that federal contractors inform employees of their rights regarding the payment of union dues or fees. On January 30, 2009, President Obama issued Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws that requires government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). Executive Order 13496 also revokes Executive Order 13201 – Notification of Employee Rights Concerning Payment of Union Dues or Fees – issued by former President Bush on February 17, 2001. Executive Order 13201 had required that federal contractors post a notice to its employees informing them that: (1) they are not required to join or maintain membership in a labor union; and (2) that those who are not union members – but are nonetheless required to pay dues or fees pursuant to a union security agreement – can object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule deletes the portions of the Federal Acquisition Regulation (FAR) that require or refer to the union dues or fees notification requirements of the revoked Executive Order.

With respect to the mandate that contractors post notices outlining an employee’s rights under federal labor laws, the Department of Labor (DOL) in August issued a proposed rule that describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance. A final rule on these requirements has not yet been issued.

This entry was written by Ilyse Schuman.

Photo credit:  Boris Yankov

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Today, the Supreme Court released its opinion in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers And Trainmen General Committee of Adjustment, Central Region (pdf), which involved the ability to challenge a final decision by the National Railroad Adjustment Board (NRAB) under the Railway Labor Act (RLA). The Court declined to answer whether a final decision by the NRAB could be set aside for an alleged due process violation, instead affirming the Seventh Circuit’s granting of relief to the union challenging the NRAB’s dismissal of its arbitration petition on statutory grounds.

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As we reported on November 3 and 4, the National Mediation Board's (NMB) notice of proposed rule making (NPRM) seeking to change the 75-year old process by which union votes are counted in union representation elections under the Railway Labor Act (RLA) is moving full-steam ahead. Members of Littler Mendelson's transportation industry practice group attended the NMB's December 7, 2009 open meeting regarding the NPRM. Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present, and interested parties had the opportunity to present their views on the proposed change to NMB election procedures. The NMB officials did not ask or answer questions or otherwise comment on any of the presentations.

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On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.

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On Wednesday, Rep. Steve King (R-Iowa) re-introduced the National Right-to-Work Act (H.R. 4107).  The stated purpose of this bill is “to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.” Specifically, this bill would amend the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) to repeal the provisions in these Acts that permit employers, pursuant to a collective bargaining agreement that is a union security agreement, to require employees to join a union as a condition of employment, and require the payroll deduction of union dues or fees as a condition of employment.

Identical bills were introduced in the House and Senate during the 109th and 110th Congresses, but failed to gain sufficient traction. The current bill has been referred to the House Committee on Education and Labor.

Photo credit:  YanC

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The Department of Defense (DoD) has adopted without change an interim rule that provides whistleblower protections for DoD contractor employees. The interim rule, issued on January 15, 2009, implemented portions of the National Defense Authorization Acts for Fiscal Years 2008 and 2009 that added these whistleblower rights and protections. Specifically, the added protections prevent government contractors from discharging, demoting, or otherwise discriminating against employees as a reprisal for disclosing to government officials information regarding waste or mismanagement, danger to public health or safety, or a violation of law related to a DoD contract.

The interim rule expanded the types of information covered by existing whistleblower protections, in addition to the categories of government officials to whom the information could be reported without reprisal. The rule also established time periods in which the Inspector General and agency head must act on the employee’s complaint of a whistleblower violation, and allows the employee to bring a claim in federal court once he or she has exhausted all administrative remedies. Pursuant to the new rule, all solicitations and contracts must include a clause informing employees of their whistleblower rights.

These requirements became final as of November 19, 2009.

Photo credit:  Lkmorlan

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On the heels of its Tuesday announcement of a proposal to accommodate organized labor’s wishes by radically changing the way votes are cast and counted in airline and railroad union elections, the National Mediation Board (NMB) has now scheduled a meeting (pdf) on the subject to take place December 7, 2009. The stated purpose of the meeting is to supplement the comment procedure outlined in the Notice of Proposed Rulemaking by “providing another opportunity for interested persons to provide their views to the Board on this important matter.”

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On Tuesday, the National Mediation Board (NMB) published in the Federal Register a proposed rule (pdf) to amend its representation election procedure. Upsetting decades of settled policy, Members Harry Hoglander and Linda Puchala, former union officials, have launched a full-court press intended to make it easier for labor organizations to expand union membership in the air and rail industries.

Under the existing and well-settled approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. So, in effect, employees who chose not to participate are counted as “no union” votes. The proposed rule would change this policy to base the voting outcome on the majority of those who actually vote, as is the practice in non NMB-governed industries.

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The U.S. Supreme Court has agreed to decide whether the National Labor Relations Board (NLRB) has the authority to decide cases with only two sitting members. The Court has granted a petition to review the decision in New Process Steel v. National Labor Relations Board (08-1457) (pdf), in which the Court of Appeals for the Seventh Circuit upheld a two-member Board decision against a challenge claiming that two members were insufficient to constitute a quorum of the Board and therefore could not decide cases. The same day this case was decided, the U.S. Court of Appeals for the District of Columbia Circuit reached the opposite conclusion in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), finding that the two-member panel did not constitute a quorum. The First Circuit has weighed in on this issue as well, upholding the two-member panel’s authority to issue orders in Northeastern Land Services, Ltd. v. NLRB (pdf).  

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Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

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The Senate approved by a vote of 68 – 30 an amendment (S.A. 2588) to the defense appropriations bill (H.R. 3326) that would prohibit federal contractors or subcontractors receiving defense department funds from forcing their employees or independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. Specifically, the amendment bans contractors or subcontractors at any tier that receive funds from the appropriations bill from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” The provisions of this amendment would not apply to employment contracts that are not enforceable in this country.

The appropriations bill including the above amendment was approved by a vote of 93-7. This version of the bill will now need to be reconciled with that approved by the House in July.

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On Tuesday, the Senate is scheduled to vote on an amendment (S.A. 2588) to the Defense Appropriations Bill (H.R. 3326) that would effectively prevent federal contractors or subcontractors at any tier that receive funding under the appropriations bill from using mandatory pre-dispute binding arbitration agreements with their employees or independent contractors in civil rights and sexual harassment matters.  Introduced by Senators Al Franken (D-Minn.) and Mary Landrieu (D-La.), the amendment would insert the following provision into the appropriations bill:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
 

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On Tuesday Sen. Arlen Specter (D-PA) released some long-awaited details of an amended version of the Employee Free Choice Act (EFCA) that he believes “will meet labor’s objectives” and garner sufficient Congressional support. Speaking before the AFL-CIO Constitutional Convention, Specter predicted that a re-vamped version of EFCA will be passed this year. As reported in The Washington Post, Specter outlined the provisions of this so-called “compromise” bill following the AFL-CIO convention. Notably, Specter said the amended bill omits the controversial “card check” provision that would have allowed the National Labor Relations Board (NLRB) to certify a union as the exclusive bargaining representative based on a majority of signed authorization cards. Instead, according to the Post article, the amended EFCA:

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Labor Secretary Hilda Solis told attendees of the AFL-CIO Constitutional Convention in Pittsburgh today that she will work with the White House to “make the strongest case possible for the Employee Free Choice Act” and reiterated her position that the Department of Labor (DOL) “is once again back in the enforcement business.”  Her speech also outlined recent DOL enforcement efforts, and proposed regulations to reform the H-2A temporary agricultural worker program.

With respect to DOL enforcement, Solis announced that the agency is “adding nearly 670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001. So far, these resources has allowed the Wage and Hour Division to ensure that contractors on federal stimulus projects pay their workers the prevailing wage rates that they are entitled to.” Solis emphasized that worker safety is a chief concern, noting that since July, the Occupational Safety and Health Administration (OSHA) has completed 689 inspections and issued nearly 1,100 violations resulting in $1.6 million in fines.

Solis touched on immigration reform as well, explaining that the DOL is proposing to restructure the H-2A visa program. According to Solis, the proposed regulations “will reverse what I believe are unjust wage issues and working conditions for vulnerable U.S. and temporary foreign workers,” and “will ensure that before we import temporary workers to meet some labor shortages, U.S. workers have first dibs.”

As for the beleaguered Employee Free Choice Act (EFCA), Solis claimed that “it’s not enough to have fair wages and a safe workplace – workers also need a voice on the job!” To that end, Solis pledged to support EFCA, as well as the use of Project Labor Agreements for large federally funded projects.

President Obama is scheduled to speak at the AFL-CIO convention tomorrow.
 

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When Congress resumes next week, consideration of the Employee Free Choice Act (EFCA) will likely be pushed aside in favor of healthcare reform. According to an article in the Las Vegas Review-Journal, Senate Majority Leader Harry Reid (D-Nev.) told members of the Las Vegas Chamber of Commerce that senators “have too many other things on our plate” to take up the controversial “card check” bill anytime soon.

As reported in The Hill’s Blog Briefing Room, a few days earlier AFL-CIO Secretary-Treasurer Richard Trumka similarly acknowledged that any deliberation on the divisive bill would not take place until after health reform is dealt with. During a web chat on the blog firedoglake, Trumka claimed that the “President/and [Rahm] Emanuel have both said they dont [sic] intend to bring Employee Free Choice Act up until Health Insurance Reform is done. Which gives us an additional reason to do Health Insurance Reform now!”

While no surprise, these statements are significant in that they are among the first public acknowledgements by supporters that consideration of EFCA will be delayed. However, given President Obama’s upcoming speech at the September AFL-CIO convention, further developments are possible.

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Senators Judd Gregg (R-NH) and Edward Kennedy (D-MA) have reintroduced a bill that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. The Public Safety Employer-Employee Cooperation Act (S. 1611) would establish minimum standards for collective bargaining rights for public safety officers, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The House of Representatives introduced companion legislation (H.R. 413) on January 9 of this year.

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Pursuant to President Obama’s Executive Order (EO): Notification of Employee Rights Under Federal Labor Laws issued on January 30, 2009, the Department of Labor (DOL) has published in today’s Federal Register a proposed rule requiring government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). The proposed rule describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance.

The EO required that most federal departments and agencies include in their contracts a provision requiring contractors and subcontractors to post “in conspicuous places in and about [their] plants and offices where employees covered by the [NLRA] engage in activities relating to the performance of the contract,” notice of an employee’s rights under federal labor law. The EO specifically exempts two types of federal contracts from triggering the new posting: collective bargaining agreements and purchases under the simplified acquisition threshold, currently $100,000. The proposed rule establishes standards and procedures for implementing this EO, to be codified in subchapter D, Part 471 of Volume 29 of the Code of Federal Regulations.

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Even though the highly controversial Employee Free Choice Act (EFCA) has lost support and one of its main components – card check recognition – reportedly is on the verge of being eliminated, the State of Hawaii has chosen another path and has enacted a bill resembling the EFCA in almost every respect. On July 15, the state overrode Governor Linda Lingle’s veto and passed House Bill 952, a measure that amends the Hawaii Employment Relations Act (HERA) by allowing the state’s Labor Relations Board to certify the results of a representation election based on a majority of signed authorization cards, mandates arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties for unfair labor practices. While this bill is more limited in scope than the federal EFCA (H.R. 1409, S. 560) due to the fact that it only impacts certain employers, mainly agricultural with an annual revenue over a certain threshold, it will surely impact a number of private-sector as well as possibly Hawaii state employers that are not covered by the National Labor Relations Act. In addition, organized labor will no doubt use Hawaii as an example to push for the enactment of similar measures in other states.

Employees covered by this measure will be able to bypass a secret ballot union representation election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards in favor of representation. After a union is certified and issues a request to collectively bargain, the Hawaii employer must commence bargaining with 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days (30 under the proposed federal EFCA) the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years. The Hawaii mini-EFCA also imposes fines of up to $10,000 per unfair labor practice that is committed willfully or repeatedly. It is becoming clear that Congress will not follow Hawaii’s lead and is already moving away from consideration of the card check provisions of EFCA. However, for organized labor and certain employers in Hawaii, labor relations is entering a whole new era.

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The Senate on Friday confirmed by voice vote the nomination of Harry Hoglander to be a Member of the National Mediation Board (NMB). The three-member NMB is the independent federal agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney and member of the Florida Bar Association who worked as a legislative specialist for Rep. John Tierney (D-Mass.) on matters concerning transportation, labor, defense and veterans affairs. Hoglander’s term is set to expire on July 1, 2011.
 

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A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.

In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.

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In an attempt to save the Employee Free Choice Act (EFCA) from filibuster and potential failure, a handful of Democratic Senators have reportedly agreed to remove the highly contentious “card check” from the current version of the bill (H.R. 1409, S. 560).  According to an article published in The New York Times, the card check provision would be replaced by a shorter campaign period prior to an election, but other controversial EFCA measures would remain. Specifically, the article notes that expected EFCA revisions would require union elections to be held in as few as 5 or 10 days after 30 percent of workers sign authorization cards favoring union representation. In addition, lawmakers are reportedly considering provisions allowing union organizers to access company property during an organizing campaign, and preventing employers from requiring employees to attend employer-conducted information sessions often dubbed “captive audience” meetings. Since a revised EFCA bill has not yet been unveiled (much less negotiated or challenged), it is uncertain at this point which of these conditions, if any, will be included.

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On Tuesday, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) published in the Federal Register (pdf) a proposed rule implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6 of this year, EO 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf) declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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On July 10, the Office of Management and Budget (OMB) sent a memorandum (pdf) to the heads of executive departments and agencies encouraging the use of Project Labor Agreements (PLAs) until a final rule implementing President Obama’s Executive Order on this subject is implemented. On February 6 of this year, Obama issued Executive Order (EO) 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf), which declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, the EO stated, in pertinent part:

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President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.

According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.

Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.

Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.

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Senator John Isakson (R-Ga.) has introduced legislation that would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the “Green Jobs” program. The Energy Independence and Security Act of 2007 established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (S. 1238) would permit access to federal funding for these programs by removing the mandate that eligible entities “partner with labor organizations.” In essence, if this bill is enacted any contractor – regardless of union affiliation – with an accredited training program would be able to compete for federal grants under the Green Jobs Act. On April 22, 2009, Rep. John Kline (R-Minn.) introduced a companion bill (H.R. 2026) in the House.

This bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

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Legislation introduced by Rep. Steve King (R-IA) and Sen. Jim DeMint (R-SC) would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” The Truth in Employment Act (H.R. 2808, S. 1227) was introduced with 19 co-sponsors in the House, and three in the Senate. Specifically, this bill would add the following provision to Section 8(a) of the NLRA:

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A bill introduced in both the House and Senate would amend the National Labor Relations Act (NLRA) to permit an employer to award individual employees with financial incentives beyond the pay or compensation level specified in a collective bargaining agreement (CBA). Introduced by Senator David Vitter (R-LA) and Rep. Tom McClintock (R-CA), the Rewarding Achievement and Incentivizing Successful Employees Act or the “RAISE Act” (H.R. 2732, S. 1184) would add the following provision to section 9(a) of the NLRA:

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Last week Rep. Joe Wilson (R-S.C.) introduced the Freedom From Union Violence Act of 2009 (H.R. 2537), a bill that would impose a fine of up to $100,000 and/or a prison sentence of up to 20 years for anyone who commits an act of violence or extortion during a labor dispute. This legislation amends section 1951 of title 18 of the United States Code, an anti-racketeering measure more commonly known as the Hobbs Act. The Hobbs Act is a federal law prohibiting actual or attempted robbery or extortion affecting interstate or foreign commerce. According to a press release issued by Wilson’s office, a loophole in the Hobbs Act permits “violence and intimidation on behalf of labor unions . . . if it is ruled that such coercion was to further a ‘legitimate’ union objective.” Wilson further claims that this loophole “opens the door for extortion and violence against American workers.”

The Freedom From Union Violence Act would close this loophole and include a provision stating that:

whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section, shall be fined not more than $100,000, imprisoned for a term of not more than 20 years, or both.

The bill explicitly exempts conduct that is “incidental to otherwise peaceful picketing during the course of a labor dispute.”

This bill has been referred to the House Committee on the Judiciary.
 

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After the Employee Free Choice Act’s (EFCA) momentum seemed to come to a screeching halt when Sen. Arlen Specter (D-Pa), along with other Democrats, announced last month that they would not vote for cloture on the bill, efforts to revive the measure are mounting. Yesterday, Sen. Tom Harkin (D-Iowa) – one of EFCA’s chief sponsors – said that he is “actively” talking with those Democratic senators who have expressed reservations about the “card check” legislation to try to come up with a compromise bill that he could take directly to the Senate floor.  In the alternative, Harkin claimed that he would move forward with the original bill sometime in June. In response, business groups have reiterated their position that any so-called compromise would be unacceptable.

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The U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board (“NLRB” or “Board”) acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA). In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), the only issue before the appellate court was whether the Board had the statutory authority make its decision, not whether its findings, conclusions and remedies were justified.

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The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form. Form LM-30, which had been revised in 2007, requires union officers and employees (except employees performing exclusively clerical or custodial services) to report certain financial transactions and financial interests in order to make public any actual or potential conflict between their personal financial interests and their obligations to the labor organization and its members. The proposed rulemaking will focus on the changes made by the 2007 regulatory revisions which, the agency claims, dramatically altered the old Form LM-30 and instructions that had not substantially changed in over 40 years.

The new LM-30 raised the ire of organized labor, as it imposed new requirements and expanded the form from two to nine pages. The AFL-CIO filed a lawsuit – AFL-CIO v. Chao – in the U.S. District Court for the District of Columbia to enjoin the use of the new form, alleging that the DOL lacked the authority to impose the new rule, and that the form’s expanded requirements are arbitrary and capricious. This case is still pending. The revised rule will address the scope and extent of the reporting obligations, and the questions raised by the recent litigation. Until these questions are resolved, the OLMS will accept either the old Form LM-30 or the new one for compliance purposes.

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Labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis. According to an ARW press release, Maxwell will work with the White House Task Force on Middle Class Working Families, the Obama Administration’s new initiative aimed at “restoring labor standards, improving workplace safety, enhancing work and family balance, protecting retirement security, and helping protect middle- and working-class incomes.”

Maxwell has been a vocal advocate of the beleaguered Employee Free Choice Act (EFCA), and was widely rumored to be Obama’s pick to serve as Secretary of Labor. Maxwell is most known for her work at the ARW, a nonprofit advocacy organization begun in 2003 whose mission is to “promote the freedom of workers to join a union and bargain collectively.” Solis herself has ties to the ARW, having once served as the organization’s treasurer and board member. Prior to working at the ARW, Maxwell served as National Field Director for Jobs with Justice, an organization affiliated with the Service Employees International Union with which Secretary Solis is closely aligned. Her other positions have included acting as Deputy Field Director for NARAL, directing the pro-choice organization’s electoral, legislative, media, and fundraising training programs for local affiliates. Maxwell has also worked as Field Director for the United States Student Association.
 

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President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.

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Rep. John Kline (R-Minn) has introduced legislation that would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for Federal funding under the “Green Jobs” program. The Energy Independence and Security Act of 2007 (H.R. 6) established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (H.R. 2026) would permit access to these programs by removing the mandate that eligible entities “partner with labor organizations.”

This bill has been referred to the House Committee on Education and Labor.
 

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In the weeks since a litany of Senators recently spoke out against the Employee Free Choice Act (EFCA), organized labor has nonetheless complained that it deserves an up-or-down vote on whether to take away employees’ right to vote in secret on unionization. With little hope that these Senators will change their position, Andy Stern, head of the Service Employees International Union (SEIU), has now acknowledged that the prospects for EFCA’s passage look grim, indicating the first large fissure in organized labor’s efforts to pass EFCA. In an interview with The Washington Post, admitting a strategic error on the part of EFCA supporters, Stern intimated that the version of EFCA introduced in the Senate – which contains, among other things, the infamous “card check” and mandatory arbitration provisions – was introduced in this form to mirror the companion bill introduced in the House, and that this strategy might not have been the best one to ensure EFCA’s passage. According to the article, Stern said:

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Senator Richard Durbin (D-IL) has reintroduced a bill in the Senate designed to use the tax code as a carrot to encourage U.S. companies to create and maintain domestic jobs with specific pay and benefits standards and maintain neutrality toward union organizing efforts. The Patriot Employers Act (S. 829) was initially introduced by Durbin – and co-sponsored by former Senator Obama – in 2007. While the current bill has not yet been released for publication, it is believed to contain the same provisions set forth in the earlier version. That bill would provide “Patriot Employers” with a 1 % tax credit if they do the following:

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Sen. Arlen Specter’s (R-Pa.) announcement that he would not vote for cloture on the Employee Free Choice Act (EFCA) now appears to have only been a prelude to a rapid decline in support from Democrats who formerly supported the Act, including some unlikely defectors. Recently, Sen. Dianne Feinstein (D-Calif.) – who cosponsored the same legislation in 2007 – announced that due to the faltering economy, she would not support EFCA in its current form. Instead, she claimed – as did Specter – that she would support a compromise measure. According to an article by the Los Angeles Times, Feinstein said: “[t]his is an extraordinarily difficult economy, and feelings are very strong on both sides of the issue. I would hope there is some way to find common ground that would be agreeable to both business and labor.”  It should be noted that both the business community and organized labor are on record as strongly opposing any compromise on EFCA.

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In an opinion released today, the U.S. Supreme Court in 14 Penn Plaza L.L.C v. Pyett held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.

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Pursuant to one of President Obama’s executive orders issued on January 30, 2009, the Department of Labor’s (DOL) Office of Labor-Management Standards is rescinding regulations requiring federal contractors and subcontractors to post notices informing employees of their rights to refrain from joining a union, otherwise known as Beck notices.  The executive order at issue – Notification of Employee Rights Under Federal Labor Laws (number 13496) – requires such contractors to instead post notices explaining employees’ rights to join unions and bargain collectively under the National Labor Relations Act. Executive Order 13496 also revokes Executive Order 13201 issued under the Bush administration, which mandated that federal contractors post Beck notices at the worksite.

Because Obama’s executive order revokes Bush’s order, the regulations implementing that order are no longer in force or effect. Therefore, the DOL is rescinding these regulations through a final rule, and not a proposed rule, which would necessitate public comment.

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A report released last week by conservative think tank Manhattan Institute for Policy Research argues that the Employee Free Choice Act’s (EFCA) mandatory arbitration provision equates to a government takeover of the private sector. According to the report, “EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.” In particular, the report laments that public debate on EFCA has centered on the card check provisions, and “has thus glossed over the synergistic risks when it is married to a program of compulsory arbitration.”

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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In a move sure to be welcomed by the business community, Senator Arlen Specter (R-Pa) has announced that he opposes the Employee Free Choice Act (EFCA) at this time, and will vote against cloture.  Speaking on the Senate floor, Specter claimed that given the current economic climate, “[t]his is a particularly bad time to enact Employee Free Choice legislation. . . I have made up my mind. Knowing I will not support cloture on this bill, senators may decide to move on and amend the NLRA [National Labor Relations Act] as I have suggested . . . ” Specter suggests amending the NLRA to require quicker elections, easier access by unions to employees, and heftier penalties for employer unfair labor practices, among other measures. He argues that this is “a better way to expand labor's clout in collective bargaining” as opposed to eliminating the secret ballot and instituting mandatory arbitration in the event a first contract is not reached within a specified period of time.

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In the wake of heavy criticism and a lawsuit filed by seven major airline companies, the Federal Aviation Administration (FAA) has decided to revoke its revised pilot and flight attendant rest rules for long-range flights. Instead, the agency announced it will work with airlines to study safety measures over the coming year.

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President Obama has chosen Joseph Szabo to head the Federal Railroad Administration (FRA). The FRA is the agency within the U.S. Department of Transportation charged with, among other things, promulgating and enforcing rail safety regulations, conducting research into equipment design and operating practices, and consolidating government support of rail transportation activities.

Szabo, a fifth-generation railroad worker, is currently the state legislative director in Illinois for the United Transportation Union (UTU), the nation’s largest rail union. In 1984 Szabo was elected as secretary/treasurer of UTU Local 1290, and eventually became the local’s delegate and legislative representative. He worked his way up the union ladder to become vice chairman of the UTU Illinois legislative board in 1991, and was eventually elected to serve as the union’s state director in 1996. In 2006, Szabo was appointed a vice president of the Illinois AFL-CIO, and in October 2008 was elected to a four-year term. Since January 15, 2009, Szabo has worked on an interim assignment in the UTU’s National Legislative Office in Washington, D.C., serving as Alternate National Legislative Director.

In response to Obama’s nomination of Szabo, UTU International President Mike Futhey stated that Szabo is “the first FRA administrator to come out of the ranks of rail labor. It is a validation that this Obama administration is a friend of organized labor.”
 

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The Department of Labor has made available to employers a nationwide database of job candidates with disabilities.  The database currently lists 1,921 candidates seeking employment in a variety of fields. Private sector, nonfederal government and nonprofit employers can request unlimited searches by contacting the DOL’s Employer Assistance and Recruiting Network toll-free at (866) 327-6669.

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In addition to other problems with the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560), this controversial labor bill is also inconsistent with international law, so claims a letter sent to congressional leaders by the United States Council for International Business (USCIB) and the United States Chamber of Commerce (“U.S. Chamber”).  According to the letter, EFCA’s modification of the National Labor Relations Act (NLRA) to institute a card check union representation recognition process that potentially displaces the secret ballot election and forces parties to engage in mandatory binding arbitration in the event an initial collective bargaining agreement is not reached within a set period of time “contradict[s] principles of international labor law, as they have been defined by the International Labor Organization (ILO).”

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Legislation introduced last week would allow private university students who serve as teaching and research assistants to form or join a union. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461) would amend the National Labor Relations Act (NLRA) by including such students in the definition of “employee.” Specifically, the bill would add the following provision:

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President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB). The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Puchala would take the seat currently held by Bush-appointee and NMB Chair Read Van de Water.

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The day unions have been anticipating – and businesses have been dreading – has arrived. The Employee Free Choice Act (EFCA) was formally introduced in the 111th Congress today in both the House and Senate, although with noticeably fewer co-sponsors this time around. The Senate bill, sponsored by Senators Tom Harkin (D-Iowa) and Ted Kennedy (D-Mass.), was introduced with 40 co-sponsors, compared to 46 in 2007. In the House, Rep. George Miller (D-Calif.) introduced a companion bill with 223 co-sponsors, 7 fewer than when the bill was originally introduced last session. The discrepancy is compounded by the fact that Democrats gained seats in both houses in the past election, and may be a harbinger of the fight to come.

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While much of the labor-related legislative focus has been on the re-introduction of the Employee Free Choice Act (EFCA), another bill has slipped virtually unnoticed into the halls of Congress. The National Labor Relations Modernization Act (NLRMA) (H.R. 1355), introduced by Rep. Joe Sestak (D-Pa.), would amend the National Labor Relations Act (NLRA) to require employers to provide unions with equal access to employees prior to a representation election, increase employer penalties for unfair labor practices, and expedite the collective bargaining process. This bill resembles EFCA in many ways, but lacks the highly-contentious “card check” provision that obviates the need for a secret ballot election. While the supporters and opponents of EFCA continue to express a stiff resistance to any change in their relative positions – either EFCA as written or not at all – the NLRMA is the first attempt at striking a compromise position.

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With rumors swirling that the Employee Free Choice Act (EFCA) may be introduced as early as tomorrow, both union and business interests have marshaled their forces in Washington. Both sides plan to descend on Congress this week in an effort to sway the remaining Senate holdouts. It seems increasingly likely that EFCA will be introduced in the Senate first, as support in the Senate is more tenuous than that in the House. Unions will have their work cut out for them, however, as even EFCA supporters have begun to acknowledge that gaining enough votes to invoke cloture – and thus avoid the inevitable filibuster – has become something of an uphill battle.

On ABC’s This Week, Sen. Claire McCaskill (D-Mo.) admitted: “I’m not sure that we have the votes” for cloture. Among those with wavering support are Sens. Blanche Lincoln (D-Ark.) and Mary Landrieu (D-La.), who will no doubt be prime targets for this week’s lobbying campaign. Democratic senators in right-to-work states also face pressure from their business constituents to oppose the bill. EFCA fell nine votes short in the Senate when it was first introduced in 2007, so every vote is critical. Although EFCA’s passage in the House is virtually guaranteed, some Democratic representatives have already voiced their opposition. On Friday, Rep. Dan Boren (D-Okla.) became the first House Democrat to openly declare his position against EFCA. More could follow. Until then, it will certainly be an interesting week. Among the possibilities to watch for is the potential for negotiations that could transform EFCA into something that might convince middle of the road Senators to support it.

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The initial predictions that the Employee Free Choice Act (EFCA) would be introduced in Congress within the first 100 days of the Obama administration may yet prove to be true. Earlier this year, as interest and attention turned to our failing economy and emergency rescue measures, many revised their estimates, forecasting that EFCA would not make its debut until this spring at the earliest. It now appears, however, that EFCA may be reintroduced as soon as Monday.  According to a number of sources, including the National Association of Manufacturer’s blog ShopFloor and the Los Angeles County Federation of Labor, AFL-CIO, rumor has it that Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) are expected to introduce EFCA – also known as the “card check” legislation – on March 9, 2009.  If this rumor is accurate, Monday will spark the beginning of what promises to be a highly contentious legislative battle.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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Organized labor has repeatedly and forcefully stated that it will push for the reintroduction of the Employee Free Choice Act (EFCA) as soon as possible. As previously discussed, EFCA could fundamentally alter the way employers do business in this country. To further expound upon EFCA’s likelihood of enactment and in what form, we invited resident labor expert Bob Battista, a Shareholder in Littler’s Washington, DC office, to answer some questions. In addition to serving as Chairman of the National Labor Relations Board for five years, Mr. Battista has practiced labor and employment law for nearly four decades.

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In a preemptive move in anticipation of the re-introduction of the Employee Free Choice Act (EFCA), a group comprised of both House and Senate Republicans have introduced legislation aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (SBPA) was introduced in the Senate by Jim DeMint (R-S.C.), Chairman of the Senate Steering Committee, and Mike Enzi (R-Wyo.), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, with 16 co-sponsors. In the House, a companion bill was introduced by Reps. John Kline (R-Minn.) and Tom Price (R-GA), with 101 co-sponsors.

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President Obama has selected academic and former Department of Labor (DOL) policy aide Seth Harris to serve in the second-highest position within the DOL. If confirmed as deputy secretary, Harris will be yet another alum from the Clinton era to join the new administration.

Prior to his nomination, Harris served as an agency working group leader on President Obama’s transition team. Harris was selected as a transition team member while working as a professor and director of the Labor and Employment Law Program at New York Law School. Harris spent nearly seven years serving under the Clinton administration as a senior advisor on policy, legal management, and strategy issues for two U.S. Secretaries of Labor.

While a law professor, Harris wrote a number of articles critical of the Department of Labor under the Bush administration. In particular, Harris criticized Labor Department regulations that were perceived as expanding the white-collar exemptions from the overtime requirements of the Fair Labor Standards Act. A strong proponent of flexible work arrangements, Harris is currently a member of the National Advisory Commission on Workplace Flexibility. In addition, Harris is a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association.

Harris holds degrees from the Cornell University’s School of Industrial & Labor Relations, and New York University School of Law. 

Correction: June 25, 2009

The Washington D.C. Employment Law Update blog entry posted February 25, 2009 stated that Seth Harris taught at the New York University School of Law.  The current entry correctly reflects that Harris was a professor at New York Law School. 

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The massive,1,122-page omnibus bill (H.R. 1105) introduced by House Democrats on Monday would provide significant funding increases for government agencies dealing with labor and employment issues. (pdf)  This $410 billion spending measure consists of nine fiscal 2009 appropriations bills that would spread a considerable amount of funds throughout several domestic agencies.

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