Today’s Labor Updates:

French students, unions protest against labor reforms

Equal Time Rule


World | Wed Mar 9, 2016 1:56pm EST

French students, unions protest against labor reforms

PARIS | By Michel Rose <http://www.reuters.com/journalists/michel-rose>  and
Ingrid Melander <http://www.reuters.com/journalists/ingrid-melander>  

French students and trade unions staged protest marches across the country
on Wednesday against far-reaching labor reforms, testing President Francois
Hollande’s mettle as he tries to lower an unemployment rate still stuck
above 10 percent.

Organizers said hundreds of thousands of people took part and the interior
ministry put the figure at 224,000, though that is less than in some
previous nationwide demonstrations in France – a possible sign that unions
are struggling to mobilize public anger against Hollande’s unpopular
Socialist government.

Unions said the protests were just “a warm-up” ahead of further planned
rallies, however, and the government will be keen to prevent the simmering
discontent among students, traditionally at the forefront of France’s
largest protest movements, from boiling over in coming weeks.

Up to 100,000 young people took part in Wednesday’s rallies, the unions
said. Some 90 of France’s 2,500 secondary schools were blocked by their
students, the education ministry said.

“Stop stamping on our right to a future,” one banner in the southern port
city of Marseille read, with much of the anger targeted at Labour Minister
Myriam El Khomri, who is spearheading the reforms.

“This bill is supposed to help hiring but all I see is that it helps
dismissal,” Bouchra Jellab of student group Unef told Reuters TV.

Public opinion appeared divided, with 50 percent of respondents in an Elabe
poll supporting the protests, a quarter opposing them and another quarter
expressing indifference.

The government’s reforms put almost all aspects of France’s strictly
codified rules on labor relations up for negotiation.

Everything from maximum working hours to holidays and pay on rest breaks
would be open to scrutiny in an attempt to free up business, but the main
focus is on plans to limit the cost of laying off workers.

JOB SECURITY

The government and business leaders say the reforms will encourage companies
to take on more workers on permanent contracts rather than temporary ones,
favoring young people in particular, but unions and some on the left of the
ruling Socialist Party see an undue threat to job security.

Although the official working week would remain set at 35 hours, unions and
employers would be able to negotiate in-house deals to spread the workload
over three years, and increase it to a maximum of 46 hours over 16
consecutive weeks.

The demonstrations take place on the same day as a national rail strike. The
SNCF railway operator said just over one in three of its workers had joined
the strike.

Hollande will keep a close eye on the number of students on the streets,
keen to avoid a repeat of massive student protests 10 years ago that forced
then-president Jacques Chirac to withdraw his labor reforms.

Prime Minister Manuel Valls has already postponed the presentation of the
reforms to cabinet by two weeks, in a sign that the government might water
down its plans.

Center-right opposition leader Nicolas Sarkozy told Le Monde newspaper he
expected the government’s reformist zeal to fizzle.

The government is still holding talks with unions and hopes to convince
moderate ones such as the CFDT, France’s second-biggest, to approve the
measures, preventing the creation of a unified front against them.

The labor reforms are set against a backdrop of sluggish economic growth,
which has remained below 1.5 percent, the level considered necessary to
bring down unemployment.

(Reporting by Pascale Antonie; Antony Paone, Lucien Libert, Myriam Rivet and
Emmanuel Jarry in Paris and Jean-Francois Rosnoblet in Marseille; Writing by
Michel Rose and Ingrid Melander; Editing by Andrew Callus and Gareth Jones)



<http://www.ogletreedeakins.com/>

Equal Time Rule

<http://www.lexology.com/contributors/1030956/> Ogletree Deakins – David F.
Loeffler <http://www.lexology.com/1030956/author/David_F_Loeffler/>  

USA March 8 2016

Recently, 106 labor law professors and labor studies academics filed a
rulemaking petition with the National Labor Relations Board (NLRB) seeking
an administrative rule that would require employers to provide “equal time”
to union organizers to campaign on employer-controlled premises at the
employer’s cost. This “equal time” requirement would be imposed if an
employer conducted meetings at any time after the employer first became
aware of a union organizing campaign or had a sense that such a campaign was
likely to be launched.

The labor law professors who filed the petition urge a return to a
65-year-old Board rule that banned “captive audience” speeches that endorse
a “No” vote. The professors explicitly praised a rule under the Railway
Labor Act that bans all “Vote ‘No'”-captive audience speeches in the airline
and rail transportation industries. The professors have also called for an
overruling of the current Board rule permitting anti-union captive audience
communications that do not threaten reprisals.

What an Equal Time Rule Would Do

The professors’ proposal for equal access would grant the draconian remedy
of a rerun election in situations where:

1. the employer, through its agents, including frontline supervisors,
held meetings of any kind with employees on premises controlled by the
employer on paid work time, and urged the employees to vote “No” in the
election; and
2. the employer, refused upon request to provide the union with an
equivalent opportunity to address  employees.

Under the proposal, the employer’s election victory would be set aside even
if the content of the employer’s communications during employee meetings
contained only lawful content under Board law. Essentially, according to the
professors, refusing a union request for access constitutes objectionable
conduct, taints the election outcome and requires a rerun election.  If the
employer persisted in denying the union “equal time” during a rerun
election, the NLRB would have the authority to order the employer to grant
the union “equivalent opportunity.” The NLRB’s order would be enforceable by
the contempt powers of a federal court.

An Equal Time Rule as a Means of Banning “Captive Audience” Speeches?

The current Board majority may adopt an equal time rule. The ultimate
objective of such a rule is to increase the cost of
<http://www.ogletreedeakins.com/shared-content/content/blog/2016/february/nl
rb-further-reduces-time-employers-have-to-educate-employees-during-union-cam
paigns> “captive audience” speeches by a magnitude that will induce rational
employers to abandon company communications to mass audiences or one-on-one
pitches by frontline supervisors on premises controlled by the company on
paid-for time.

Recently, in
<http://www.ogletreedeakins.com/shared-content/content/blog/2016/february/nl
rb-further-reduces-time-employers-have-to-educate-employees-during-union-cam
paigns> Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), the Board’s
majority effectively doubled the duration of the total ban on “captive
audience” communications in mail ballot elections. For 57 years, the Board’s
rules had prohibited such speeches if they were delivered 24 hours of the
scheduled mailing of the ballots, and continuing until the date specified
for return of the ballots to the Board’s office. Now the ban is in effect 24
hours prior to the scheduled and continuing until the date specified for the
return of the ballots.

Although the majority opinion in Guardsmark speaks of the ban duration as a
means of insulating voters from a supposed bandwagon effect, the antipathy
of the Board’s majority toward all manner of captive audience communications
shines through.

An Equal Time  Rule as a Content-Based Speech Regulation?

The labor law professors who filed the equal time petition with the Board
claim that implementation of an equal time rule does not present any First
Amendment issues because the proposed regulation is aimed at a mode of
communication, not the content of communication.

But the content of communications between management and employees is
implicated by the equal time rule/Consider the following example: An
employer assembles the workforce on company premises, on paid-for time. The
highest-ranking managers address the group and unambiguously tell the
employees that the employer doesn’t care whether they vote for the union.
The employer’s managers go on to affirm that the employer will respect any
outcome and will work with any union to achieve a continuous healthy
workplace relationship that benefits all. Frontline supervisors follow up
with the same message, several times daily, for many days prior to the
election. Under the equal time rule, these meetings and communications would
not require the company to allow union organizers to come on the premises
and repeat the same news on company paid-for time.

If the same mode of communication was employed to deliver a message to vote
“No” on the question of union representation, the employer would be required
to grant organizers equal time to urge a “Yes” vote. Thus, application of
the equal time rule turns on the content of the communications.

Would an Equal Time Rule Reduce the Quantity and Quality of Speech?

If an equal time rule were adopted, an employer would be required to pay
employees to listen to the union organizer’s message. Not only would the
employer pay for time in which no contribution was made to the marginal
product, but the spillover effect in lost productivity produced by the
conflict-laden environment would be considerable. It is reasonable then to
expect that some employers will cut back on, if not eliminate, captive
audience speeches if an equal-time rule is adopted. (That is, after all, the
seeming purpose of the rule.) . There is no justification under First
Amendment law for handicapping an employer, in a representation election by
imposing a de facto tax on the use of an effective, efficient means of
communication, unless such mode of communication imposes substantial social
harm.

Key Employer Takeaways

1. The Board will probably not grant the professors’ petition to
conduct a rulemaking process in which employers can be heard in opposition
to the proposed rule. The Board typically waits for the “right” case (which,
no doubt, will be coming soon). If the Board engages in the rulemaking
process, employers should be prepared to make the best constitutional case
against the rule.
2. The Board may ultimately conclude that, absent an opportunity for
“equal time” extended to a union, captive audience speeches void employer
electoral victories and are unfair labor practices. Federal courts, however,
may be reluctant to enforce such a rule because the employer has a
constitutional right to present the case against unionization in the most
persuasive, cost-efficient means available, absent a threat of reprisal.
3. Employers should continue to use the best modes of communication
available, including captive audience speeches.