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Labor Relations News Update December 12, 2014

Today’s Labor Updates:

NLRB Expected to Issue a ‘Rush’ of Decisions by Mid-December

When is talk about unions lawfully prohibited by a no-solicitation policy? 

Unions Fighting Inequality at Asarco Strike a Major Blow

NLRB Issues Final Rule to Modernize Representation-Case Procedures


NLRB Expected to Issue a ‘Rush’ of Decisions by Mid-December

Labor Panel Likely to Make Important Rulings Before Member Nancy Schiffer’s Term Expires

By Melanie Trottman

Updated Dec. 10, 2014 6:47 p.m. ET

The National Labor Relations Board is expected to issue a raft of decisions before the mid-December departure of one of its members, with rulings important to businesses, unions and university athletics potentially among them.

The board doesn’t publicly disclose the timing of decisions but has routinely completed a flurry of them in the weeks before a member’s term expires. Former board members say this is internally called a “rush” and occurs in part to ensure that a departing member’s work hasn’t been wasted. It also mitigates the amount of catching up that incoming members must do. Businesses are concerned the five-member board’s Democratic majority will side with unions on the most contentious pending decisions, such as whether the board should move forward with a sweeping, proposed rule to streamline and speed union-organizing elections.

The board is also considering whether employees should start having the right to use their employer’semail systems to form or join a union.

Unions are hoping the board’s majority will take their side on those and other issues, including a case questioning whether Northwestern University scholarship football players should start being treated as university employees, who therefore can unionize. If the board says yes, the case could have broad ramifications for collegiate athletics by opening the door for similar unionization efforts at other private institutions.

Board member Nancy Schiffer ’s term will expire Dec. 16. She has served for 16 months on the board, which has three Democratic and two Republican members. Ms. Schiffer is a Democrat.

Members of the board have the final say on decisions made at lower levels of the agency. Northwestern University, for example, asked the board to overturn a lower-level decision that declared its scholarship football players to be employees.

The board, which is an independent government agency, has the authority to engage in rulemaking, though it rarely has done so over several decades. Early this year, it revived the proposal for a rule that would streamline and speed union-organizing elections. It conducted public hearings but hasn’t announced further action on the matter, which drew opposition from the businesses community and congressional Republicans.

As the end of Ms. Schiffer’s term nears, “the volume of decisions that are completed just prior to midnight on Dec. 16 is going to be greater than usual,” said Marshall Babson, a labor and employment lawyer in New York with Seyfarth Shaw LLP, who was an NLRB member during the Reagan administration. “The general view is that all resources are devoted to the decisions in which the departing board member has participated,” said Mr. Babson. The board could take several or more days to release its written decisions to the public.

Another pending case could draw companies closer to the contract workers they use. The union in the case wants a company to be at the table in collective bargaining talks that involve its subcontracted workers, saying the union can’t adequately bargain for them unless the company is involved as a so-called joint employer.

Business groups fear the board could use the case to change its decades-old standard for deciding when contractual arrangements render one business a joint employer of workers employed by another, which they say could defeat the efficiencies of contracts. Unions say the change is needed to address arrangements in which one company exercises control over wages and working conditions at another but has little responsibility for the workers.

The Senate this week confirmed Democrat Lauren McFerranto succeed Ms. Schiffer by a vote of 54-40. The vote reflected a largely partisan split that underscores the political divide over work of the board.

Congressional Republicans have accused the board’s Democrats of being union advocates instead of umpires, while Democrats have defended the board as a fair arbiter of workers’ rights. The board’s chairman, a Democrat, has said the board has acted fairly.


When is talk about unions lawfully prohibited by a no-solicitation policy?

Nelson D. Cary

December 10 2014

Many employers maintain a policy prohibiting solicitation and distribution.  Under long-standing law, these policies, if correctly drafted, can prohibit employees from engaging in certain types of union activity at certain times of the day.  A recent decision from the NLRB, however, makes it clear that these policies have their limits, and raises the question of whether this long-standing law will be modified in future cases.

The case, Conagra Foods, Inc., 361 N.L.R.B. No. 113 (Nov. 21, 2014), involved a union organizing drive at a plant in Troy, Ohio.  An active and open union supporter asked two other employees in a restroom if they would sign authorization cards.  Those employees indicated that they would.  A few days later, the union supporter placed union authorization cards in a locker, as they had previously discussed doing.  As the union supporter walked past the two employees on the production floor, she told them that the authorization cards were in the locker.  She did not ask either employee to sign the authorization card or even show them one.  Instead, she “merely informed” her coworkers that she had done what she told them she would do:  leave the authorization cards in a locker.  The interaction lasted no more than a few seconds.

The employer gave a verbal warning to the union supporter for violating its no-solicitation policy.  The General Counsel did not allege that the employer’s policy itself was unlawful.  Instead, the NLRB examined the application of that policy to the union supporter.  The NLRB held that the employer could not lawfully apply its policy to the union supporter’s conduct “because her conduct did not constitute solicitation.”  The exchange on the production floor, which would have been the only exchange prohibited by the employer’s no-solicitation policy, merely informed the employees of where to find the authorization cards they had already agreed to sign.  There was no request that the employees sign those cards.  Moreover, the impact on production was minimal because the interaction only lasted a few seconds, one of the employees was waiting for a production line to start, and the other employee, who was cleaning, only stopped cleaning for a few seconds.

Member Miscimarra (R) issued a strong dissent.  He criticized the majority for adopting “narrow, non-dictionary meanings” for “solicitation” and “working time” that “depart from the decades-old treatment of no-solicitation rules by the [NLRB] and the Courts.”  He would have found the employer’s disciplinary action entirely lawful.

For labor professionals, the case is important for four reasons:

  • When dealing with union discussions, employers must resist the urge to overreach and construe any “union talk” as a form of “solicitation” in an attempt to regulate or prohibit it under a no-solicitation policy.  Not all union-related discussions constitute “solicitation” under the NLRA.  The majority defines “solicitation,” however, more narrowly than the dissent.
  • Focusing on the extent to which work is interrupted, however, is troubling.  The Supreme Court has stated that “working time is for work,” a principle that has been upheld for decades.  This case appears to chip away at that idea, by describing the lost working time of one of the employees as only a “few seconds.”
  • It could signal a potential departure from established NLRB precedent.  The rules on solicitation are one of the few “bright lines” in an area full of grey.  It will be an unfortunate development if the decision leads to future cases that add uncertainty for labor professionals to manage.
  • The decision may make future determinations of what is “solicitation” more difficult for employers and employees.  As Member Miscimarra explained in his dissent, employers’ ability to discipline for violation of no-solicitation rules now appears to depend on inquiries into questions like precisely what was said, whether and what may have been displayed during the exchange, and how much work was “lost, delayed, or deferred” during the exchange.


Unions Fighting Inequality at Asarco Strike a Major Blow: 

Grupo Mexico Subsidiary Must Pay Millions in Withheld Bonuses

TUCSON, Ariz., Dec. 11, 2014 /PRNewswire-USNewswire/ — The United Steelworkers (USW) today said that the unions which represent more than 2,000 hourly workers at five Asarco locations in Arizona and Texas won a multimillion dollar arbitration award for hundreds of employees that the company has refused to pay collectively bargained quarterly bonuses.

USW District 12 Director Bob LaVenture, who chairs the unions’ negotiations with Asarco, praised the ruling on behalf of the Asarco workers hired since July 1, 2011, to whom the company now owes millions.

“We are relieved now that Asarco management must honor our contract,” LaVenture said, “but more importantly, the company has lost another issue it has cynically used to divide our membership during our current protracted negotiations.”

LaVenture said that Asarco management’s strategy to discourage newer employees from joining the union by denying the bonus to them backfired.

“Instead of dividing workers, the company’s tactic united us over issues that impact everyone, regardless of which location they work or when they were hired,” LaVenture said. “I’m proud of the solidarity that the union members at each location have maintained since the current negotiations started about 18 months ago.”


NLRB Issues Final Rule to Modernize Representation-Case Procedures

December 12, 2014

The National Labor Relations Board has adopted a final rule amending its representation–case procedures to modernize and streamline the process for resolving representation disputes. The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015.

Of the final rule, Chairman Pearce said, “I am heartened that the Board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act. Simplifying and streamlining the process will result in improvements for all parties. With these changes, the Board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

The final rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.  The rule includes detailed explanations regarding the rule’s impact on current procedures and the views of the majority and dissenting members.

The Board believes the rule will enable the agency to more effectively administer the National Labor Relations Act by modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay. With these amendments, the Board will be better able to fulfill its duty to protect employees’ rights by fairly, efficiently and expeditiously resolving questions of representation.

Thus, the final rule:

  • Provides for electronic filing and transmission of election petitions and other documents;
  • Ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
  • Eliminates or reduces unnecessary litigation, duplication and delay;
  • Adopts best practices and uniform procedures across regions;
  • Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance a fair and free exchange of ideas by permitting other parties to the election to communicate with voters about the election using modern technology; and
  • Allows parties to consolidate all election-related appeals to the Board into a single appeals process.

More information is available on a fact sheet on the Agency’s website, including a link to the final rule in the Federal Register, the majority views, and the dissenting views.

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