Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

The NLRB has issued an RFI (Request for Information) to identify firms who can provide the means for employees at businesses across the country to "vote" electronically on whether they want union representation.  The idea would be that, sitting in the comfort of their own home . . . or the union hall, employees can use a computer, telephone or some other electronic means to register their choice on election day.  This method of voting, so the argument goes, avoids the "intimidation" employees may feel when voting in a voting booth by secret ballot at their place of employment.  Not only that, it would save the NLRB money by avoiding the need to send field agents to the companies where elections are scheduled.  No ballot, no voting booth, no assurance of privacy, and no protection from someone looking over the employee's shoulder, or worse, as she votes.  And electronic voting can be ordered administratively by the agency in the dead of night rather than through legislation undertaken in the light of day.

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Two significant developments last week affect the functioning of the country's federal agency in charge of overseeing union-management relations. The first is a decision by the US Supreme Court and the second is the resignation of the agency's general counsel effective June 18th.

As a result of political disagreements over nominations to fill vacancies on the National labor Relations Board, the Board operated with only two of its five members during 2008, 2009 and into 2010.  During that time, the two members decided almost 600 cases (though most were not particularly controversial from the standpoint of illuminating policy or setting precedent).  On June 17, the Supreme Court ruled in New Process Steel v. National Labor Relations Board, No. 08-1457, that the two members did not have the authority to decide those cases because they did not constitute a proper quorum under the National Labor Relations Act.  Instead, the Court ruled that at least three sitting Board members were required for the NLRB to act.  The ruling nullifies the decisions made in all 600 cases and effectively remands the cases back to the Board for re-adjudication.

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On May 21st, we reported on the newly-announced Department of Labor (“DOL”) proposal to narrow the “advice exception” to the reporting requirements of section 203 of the Labor-Management Reporting and Disclosure Act (“LMRDA”).  In a nutshell, section 203 requires employers to annually report any arrangement with a third-party consultant 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 involved in a labor dispute with the employer.  The “advice exception” of section 203(c) provides that no annual report need be filed when a consultant gives “advice” to the employer.  DOL’s current policy is to construe this exception broadly to exclude arrangements where the consultant has no direct contact with employees, but DOL now views this policy as overbroad and seeks to narrow it through rulemaking, as outlined in its Spring 2010 Regulatory Agenda.

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The Secretary of Labor has finalized implementing regulations under Executive Order 13496, which requires federal contractors and subcontractors covered by the National Labor Relations Act (NLRA) to post a new notice advising employees of their rights under the Act.  Note that most employers in the private sector are covered by the NLRA; the Order is not limited to companies with union activity or representation.

The regulations are codified at Title 29, Part 471 of the Code of Federal Regulations.   The Department of Labor (DOL) also provides a helpful fact sheet about the new requirement.

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The NLRB's General Counsel, Ron Meisburg, recently announced his anticipated resignation, effective June 20, 2010.  Meisburg's departure now frees President Obama to appoint Meisburg’s successor.  While a number of names as replacement GC have surfaced, no clear front runner has emerged.

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The Department of Labor has recently announced a regulatory initiative that would narrow the “advice exception” to the reporting requirements of section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA).  Section 203 requires employers to annually report via Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees as to the collective bargaining rights, or to obtain certain information about the activities of employees or a labor organization involved in a labor dispute with the employer.  The retained consultant must also file a report concerning the agreement or arrangement (Form LM-20).  However, one of the statutory exceptions in section 203(c) provides that no report need be filed when the consultant gives “advice” to the employer.

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In yet another pro labor move under the Obama administration, the National Mediation Board (“NMB”), which oversees labor affairs of airlines and railroads, has issued a final rule that will make it easier for unions to organize airline and railroad employees.  Under the new rule, unions must obtain votes from a majority of all workers who cast ballots in order to be recognized.  This is a significant change from the old rule, which had governed these elections for the past 76 years.  In the past, unions had to obtain votes from a majority of all workers eligible to cast ballots in order to be recognized.  Essentially, the old rule allowed workers who did not cast a ballot to effectively count as a “no” vote.  As a result, in most cases the new rule will decrease the number of votes unions must obtain to win recognition.  Most companies, which are governed by the National Labor Relations Act, follow the same majority requirements as the new rule.

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Andrew Stern’s sudden resignation as International President of the Service Employees International Union (“SEIU”) took the labor world by surprise and sparked debate about his legacy and the future of the nation’s largest and most politically powerful labor union.  The selection of SEIU Executive Vice-President Mary Kay Henry as his successor has sparked an equally intense debate about the direction she is likely to take SEIU in the future.  Many had assumed that Anna Burger, SEIU’s Secretary − Treasurer and Chair of Change to Win − not to mention Stern’s longtime protégé − was all but guaranteed the job.  However, Henry’s candidacy grew support among the members of SEIU’s Executive Council when she promised to “heal rifts” within the union caused by internal debate over Stern and the long-term viability of his organizing philosophy. The SEIU Executive Council’s rejection of Burger seemed to signal a desire at the top of SEIU for a genuine change of direction.  Yet, in the days following her election, Henry has sent mixed signals about her true intentions.

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The Wall Street Journal calls him “labor’s biggest weapon.”  His nomination to the National Labor Relations Board prompted Senator John McCain to refer to him as “probably the most controversial nominee that I have seen in a long time.”  When his nomination stalled in the Senate after a heated partisan debate, President Obama was forced to make a rare recess appointment to reserve his position on the Board.

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President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

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In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

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Last week, the AFL-CIO commenced a major new attack on the nation's largest banks and to push for a new "transaction tax" to raise money for a national jobs program.  The labor federation's "Call to Action on Jobs" Campaign, which formally began on March 15th, is expected to target the nation's six largest financial institutions.

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National Labor Relations Board (NLRB) Nominee Craig Becker needed 60 Senate votes to overcome the Republican-led filibuster blocking his confirmation, but he only received 52 votes on Tuesday. Two Democrats, Sen. Blanche Lincoln (Ark.) and Ben Nelson (Neb.), went against their party to vote him down in the cloture vote, which failed 52-33.

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On Tuesday, February 4th, the United States Senate Health, Education, Labor, and Pensions (“HELP”) Committee called a rare hearing to question Craig Becker, President Barack Obama’s nominee for the National Labor Relations Board (“NLRB”). While Becker was approved by the HELP Committee last year in a 15-8 vote, Arizona Senator John McCain (R.) placed a hold on his nomination, keeping a Senate vote from taking place. Therefore, the White House resubmitted his nomination and the Committee voted on Becker again yesterday, before a confirmation vote in the full Senate.

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Late last week the Bureau of Labor Statistics released its numbers concerning the levels of union membership in 2009. As in past years, the number of union members in the private sector has declined, now down to 7.2% from 7.6% in 2008. In December 2009, the NLRB's General Counsel released the Agency's numbers regarding the number of initial union representation elections in FY 2009. Once again, the number of elections initiated by unions has declined, this time by a whopping 19% in just one year.

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On December 24, 2009, the National Labor Relations Board ("NLRB") issued a revised version of its Case Handling Manual (Part One).  For those inside the NLRB, the Manual provides guidance on various internal policies and procedures for enforcement proceedings.  For those outside the NLRB, the Manual not only states how the agency is likely to deal with issues that arise during such proceedings, but also provides insight into the agency’s enforcement priorities.  Part One (the part recently revised) covers unfair labor practice (“ULP”) charges, but also includes sections that apply to representation elections and compliance proceedings as well.

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On December 24, Craig Becker’s nomination to the NLRB ran into a significant obstacle when the Senate returned the nomination to the White House for reconsideration.

Becker, who works for the Service Employees International Union, was nominated by the President earlier this year to fill one of the two vacant Democratic seats on the NLRB.  There has been significant controversy surrounding his nomination due to what critics describe as his extreme, some say radical, pro-union views concerning possible changes to the nation’s labor laws.  The nominations of Democrat Mark Pierce and Republican Robert Hayes were both held over by the Senate for consideration during the next term, indicating that both are likely to be confirmed.  

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Fairly or not, America’s commercial banks have been vilified by many as the cause of the nation’s financial meltdown. The CEOs of America’s most venerable financial institutions have been called to Washington and excoriated by an angry Congress, and on talk shows across the nation their salaries have been contrasted with those of hourly-paid financial workers. The new administration has called for tighter regulation of the financial sector and even appointed a “pay czar” to review the compensation structures of banks that have received bailout funds. While most of the attention over the banking crisis is focused on whether, and to what extent, the industry is in need of reform, far less attention has been placed on the veritable “perfect storm” the current political and economic climate has created for unions eager to make inroads into an industry that has been largely untouched by big labor.

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The U.S. Department of Labor (DOL) recently announced that it will propose new regulations that potentially could expand employers’ and labor consultants’ reporting obligations under Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This may require employers to disclose some information that currently is not reportable, such as information related to advice from labor consultants and perhaps even attorneys.

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According to data from BNA PLUS, unions have won more than 73% of the elections in which they participated in the first half of 2009. This is up from 66% for the same time period in 2008. The Teamsters led the way by participating in 164 elections and winning 70% of them, while the SEIU was second, winning 75% of 44 elections.  Although the number of elections conducted by the NLRB thus far in 2009 is down from the number in 2008, the union's win rate in each year of this decade has been over 50% and getting better as the decade progresses. The numbers out today indicate that currently unions are overwhelmingly successful when employees are allowed to vote on the question of union representation. Opponents of the Employee Free Choice Act will question why Congress needs to eliminate the secret ballot for employees in order to help unions succeed when unions are obviously faring very well under the current system.

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In one of the largest back pay awards in the agency's history, the National Labor Relations Board (NLRB) concluded a settlement with five Michigan beer distributors that required the companies to pay $41 million in back pay to employees and the Teamsters. Findings from an ALJ, supported by the NLRB and the 6th Circuit Court of Appeals, concluded that the five companies colluded to systematically oust the union by separately engaging in bad faith bargaining, unlawfully declaring impasse, and then implementing their respective labor contracts with substantially lower wages and benefits.

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The five-member National Labor Relations Board (NLRB) will undergo a dramatic makeover with the appointment of a new chairman, Wilma Liebman, and three new members, Craig Becker, Mark Pearce, and Brian Hayes.  Typically the Board consists of three members from the sitting President’s party and two from the other party.

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