NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.

NLRB makes barring off duty employee access to company property exceedingly difficult

The NLRB has issued an interesting decision concerning an employer's ability to limit employee access to employer's facility when the employee is off duty. In Marriott International, 359 NLRB No. 8 (free download at the NLRB web site). The Board's opinion does a good job of explaining the Board's current position on access and use rules. Essentially it appears any rule which does not affirmatively and extensively advise employees of their right to engage in Section 7 activity in the otherwise restricted area of the facility either chills employee rights or intimidates employees from engaging in such rights at all. Also, any discretion reserved to management to permit off duty employees to return for company business invalidates the rule by virtue of creating an exception, subject to managment discretion.

Because the Board defines these infringements by reference to its imaginary "objective employee's" perception of the effect of the rule, the Board can freely find a violation. A rule that does not expressly, accurately and completely advise employees of their rights will be found to chill those rights even where it has never been enforced against an employee in violation of Section 7. Employers limiting access have a daunting task to craft rules which the Board would find acceptable.

Because Section 7 affords rights to all employees, not only those in a unionized employment environments, all employers should seek advice concerning any rules denying employee access to company property.

Michigan repercussions

Looks like Michigan's right to work push is ripe for push back. Gov. Snyder's popularity has plummeted since the right to work legislation was fast tracked. The polling numbers also indicate right to work is overwhelmingly unpopular in the state.

Employers dropping employee health coverage?

Despite all the uproar and anecdotal evidence of employers reacting to the Affordable Care Act by eliminating health insurance coverage for employees, a recent study suggests otherwise.

Michigan and politics

More on the politics of the surprising Michigan right to work campaign from Political Wire.

Right to work in Michigan

Right to work legislation passes Michigan's Republican controlled state legislature. If, as expected Michigan's republican governor signs the bill, Michigan will become the nation's 24th right to work state. This move definitely disadvantages unions by allowing workers to refuse to belong and pay dues to a union, despite the fact the union is obligated to represent those workers. While the current battle advantages opponents of labor (and not all employers fall into that group), it may give serious impetus to reforms advantageous to labor. Big labor should seriously reconsider the existing compulsory union model in favor of federal legislative reform permitting micro unions and voluntary unionism. Micro unions would permit small groups of employees to unionize, irrespective of the desires of a majority of employees in the entire enterprise. Voluntary unionism would permit dissenters to opt out of not only obligations to fund a union, but also representation by the union. Those dissenters would be free to bargain directly with their employer.

November jobs report brings more good news

The November jobs report released today by the Bureau of Labor Statistics (BLS) indicates the economy added 146,000 jobs. Unemployment dropped to 7.7%.

Michigan and right to work

Will Michigan become the nation's 24th right to work state? Maybe so.

Who took the big hit?

It does not take a study to prove the overwhelming brunt of the losses from the 2007-2010 "Great Recession" affected the middle class more profoundly than the wealthy or, for that matter the poor. But here is one that does. Simple take aways:

1. Middle class wealth has "collapsed" to a 40 year low.
2. Wealth is more concentrated in this country than income, because many people expend all of their income on living expenses, but those fortunate enough to have "a bit extra" benefit from  government policy favoring investment income over earned income.
3. The major asset for the middle 60% of households  is the family home, which constitutes 2/3rds of the wealth of that group of Americans.
4. For the top 1%, the family home represents less than 10%, and for the next 19%, about 30% of their wealth.
5. Debt, a lot of debt exacerbated the problem.

Respect, find out what it means to ee's

This guy nails it. All employees want self respect, and a good boss/leader knows how to give it and knows how *not* to take it away.

Which professions entice psychopaths?

Well, lawyers are right up there at number 2, just after CEO's and eight spots above chefs.

Immigration reform?

The Republican party seems to have awakened to addressing a reality based immigration policy. It took the crushing reality of an electorate increasingly unfavorable to hard line positions on immigration, but moderation on the issue now seems positively to warn the hearts of reasonable Republicans. Many economists have suggested immigration reform is good for the economy, if not necessary to ensure labor is available to fill the positions which will be created in the 21st century.

Election day

In representation elections an employer cannot poll the voters. Its an unfair labor practice. Every now and then the employer's attorney gets fooled and everyone is surprised at the loss the union puts on the employer. I've never had this type of embarrassment in a representation proceeding. Knock on wood.

Did union fight cost Romney?

Did Republican governors in picking a fight with unions in Ohio and Wisconsin cost Romney the election? The unions think so.

171,000 jobs gain beats expectations

The Bureau of Labor Statistics final jobs report of the 2012 election cycle is BTE. The 171,000 jobs created exceeds the ADP estimate released earlier in the week. The unemployment rate ticked up to 7.9% because more workers rejoined the ranks of job seekers. This is the 33rd consecutive month the economy has added jobs. In addition to the October jobs growth, the BLS raised the previously released numbers for August (+142,000 to +192,000) and September (+114,000 to +148,000)

Jobs report = growth 158k

The October jobs report, set for Friday release by the Bureau of Labor Statistics may be the most anticipated significant event remaining in the 2012 presidential campaign. ADP's private sector payroll report released today notes the private sector added 158,000 jobs during the month. Over half of the jobs creation was by large businesses having more than 1000 employees. The BLS report, which will include information on public and private sector jobs, has during the great recession, reflected a bit smaller jobs growth due to the inclusion of the public sector information. Interesting also it appears ADP has changed its methodology in advance of this latest report. That fact is certain to inspire partisan wrangling over the report's results.

Equal Pay a myth?

According to one labor economist, women in every state make a fraction of what males do. There are many causes but the bottom line remains the same. Utah (55¢/$1) tops the list for greatest disparity, followed by Wyoming (56¢/$1) and Louisiana (59¢/$1). State chart here. GOP senator Marco Rubio dismisses the Lilly Ledbetter Act as benefiting only trial lawyers. Now there are often explanations for pay disparity, and under the Equal Pay Act an employer need only prove there is a factor other than sex causing the disparity. Note, it is the employer's burden to do so once the claimant establishes a pay differential in circumstances where a female performs a job requiring the same skill, effort and responsibility, yet is paid less than males.

Union fines

Just finished discussing a labor organization's right to fine members with my labor law class. This link makes the points pretty effectively. A Union has the right to dictate certain conduct to a members, and members who fail to perform risk fines levied by the union. It also shows equally effectively that political trackers will say and do pretty much what has to be done to get the dirt.

October jobs report

Have the jobs statistics crossed the Rubicon? Or is it just a conspiracy to help President Obama's reelection? The statistics are compiled by the Bureau of Labor Statistics (BLS) which released its monthly report today. Unemployment dropped to 7.8% the lowest level since 2008. Although the job growth was modest (114,000) the numbers for prior months were also raised evidencing an incrementally improving jobs picture. Many on the right now claim the the BLS stats are cooked. And according to candidate Romney so is Big Bird.

NLRB decides first Facebook case

The NLRB has concluded that the firing of a car salesman occurred because he posted to Facebook photos about a dangerous accident which occurred at another dealership owned by his employer. The accident involved a Land Rover driven over a wall and into a pond after a test drive. The same day the salesman posted the accident photos he posted sarcastic comments about a "cheap" party given by his employer at a sales event announcing new BMW models. The latter photos were arguably protected concerted activity "because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions."

The NLRB affirmed the ALJ's conclusion that the Land Rover incident was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

While the discharge was upheld, the employer's rule requiring "courtesy" in employee to employee communications was overly broad, leading to a finding of a violation and an order requiring the employer to remove the rule from its handbook.

Value of labor's experience and training

This post makes an especially poignant argument for training, experience and correlates both to hard work. Its got a pro-labor slant, but remove the politics and it makes a good case for not cutting corners when it comes to training and experience, whether the worker is a janitor or an NFL referee. The example of the NFL referees is the best argument favoring the labor theory of value to come around in a long time.

Cause/effect?

The lockout of the NFL referees has ended with the referees expected to be on the field tonight in Baltimore for the Ravens game with the Cleveland Browns. Not sure the NFL could take many more game ending calls like Monday's Green Bay-Seattle debacle.

That wern't no touchdown, scab!

Wisconsin Governor Scott Walker has now sided with labor against management in one specific context. After a bizarre ending to last night's Packers-Seahawks game and Seattle benefitting from a controversial call, Gov. Walker now wants the locked out union referees back.

NLRB and Social Media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Trumka tells Mass. vote for the woman

AFL-CIO president Richard Trumka made a hard pitch to vote for Elizabeth Warren over Sen. Scott Brown in the Massachusetts Senate race, even though she's not one of the boys.

Players support refs

The NFLPA has taken sides with the locked out referees. In a letter to owners the Players' Association denounces the Commissioner and the lockout as creating significant safety problems for the players.

Pensions, its about pensions?

The NFL referee strike revolves around pensions according to this analysis, and the issue is not whether the owners can afford them rather their belief they can eliminate a defined benefit plan because no one else has one.

Public sector jobs decline

Well, more job truthifying - Paul Krugman, informs Sen. Rand Paul that public sector jobs have declined since Obama took office.  In disbelief Sen. Paul retorts "the growth of government is enormous under President Obama." No, really, government employment is smaller now than before President Obama took office. That a United States senator is surprised at this important fact is discomforting. Krugman provides a dramatic chart here.

Woulda, coulda, shoulda?

ThinkProgress blames lackluster job growth on Republicans blocking passage of the American Jobs Act.

Middling jobs growth

The Bureau of Labor Statistics reported net job growth in August was shy of 100,000. Private sector jobs expanded by 103,000 and public sector jobs declined by 7,000. The unemployment rate dropped slightly to 8.1%.

Jobs, jobs and politics

The jobs report from the Bureau of Labor Statistics is due out Friday. It will likely have a higher than usual effect upon the political scene. A better than expected number good for the President, and a worse than expected number better for Gov. Romney. The jobs issue is a major one for the 2012 campaign. Talking Points Memo does a good job of "truthifying" the debate.

Hurricanes and exempt employees

What options exist for paying employees when a hurricane forces an employer to close?

• Non-exempt employees must be compensated only for hours actually worked. If the employer cannot, or does not provide work to those employees due to a natural disaster, it is not required to compensate them for hours not worked. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.

• As for other exempt employees, if they choose not to come to work due to transportation difficulties or other storm issues, but the employer is open for business, the employer may require the employee to use paid time off or vacation pay, or may choose to place the employee on unpaid leave. Any required use of PTO should be in full day increments., if the employee worked a partial day, then the exempt employee is entitled to full pay for that day.

• The employer will be required to pay an exempt employee’s full salary if the worksite is closed  or unable to reopen for less than the complete work week due to storm reasons. When the facility is closed for more than a complete work week, the employer is not required to pay exempt employees for any complete work week closure caused by the storm related closure.

It is also possible to require exempt employees to make up time missed. Issues regarding compensation are fact driven. Employers should consult with their employment attorney for specific advice.

College and economic security

The Georgetown Public Policy Institute for has released a report detailing how much better off college graduates fared in the economic downturn. Key points:

• unemployment rate for 4 year college graduates never exceeded 6.3% during the recession, compared with a peak unemployment rate of 13.4% in February 2010.
• unemployment rate for new high school graduates peaked at 30% in January 2010, and remained at 24% in May of 2012.
• during the recession (Dec. 2007-Jan 2010) there was modest job growth (187,000) for those with a bachelor's degree or better.
• During the recovery (January 2010-Feb. 2012) job losses for high school graduates or less education continued to decline (230,000) while job growth for those with some college (2,012,000) and Bachelor's degree or better (3,374,000) improved dramatically.
• Nearly 4 out of every 5 jobs lost in the recession were held by workers with a high school diploma or less.

There is a wealth of additional information.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge.

Unintended consequences?

Does Citizens United compel public sector employees to support corporate political campaigning? One Harvard professor thinks so. Most public sector employees are required to make contributions to a pension plan. Many public sector pension trustees make investment decisions in the private sector in corporate securities. The problem is Citizens United permits corporations to make political expenditures from the corporate treasury. Essentially public sector employees are compelled to finance private corporate political expenditures with no mechanism for opting out. Unions, of course, cannot use employee dues money for political expenditures if the dues payer objects. The professor suggests this compelled financing of corporate political speech violates the public sector pension contributors' First Amendment rights. Intereting argument.

Who hates unions?

Here is Rush on unions. Classic, but not playing real good with some sponsors.

Union decline

Union decline: the chart

Belmont in jeopardy?

Will a labor dispute prevent a triple crown?

Ruh Roh

The latest jobs report from the Bureau of Labor Statistics (BLS) notes a net job creation of only 69,000, and that the unemployment rate has risen to 8.2%. Also of note the jobs numbers for March and April were revised downward.

NLRB Member Flynn resigns

Over the holiday weekend, NLRB Member Terence Flynn resigned, effective July 24, 2012. Flynn has also recused himself from all agency business. Flynn has been accused by the Board's Inspector General of leaking non-public information.  Previous posts on accusations against Flynn are here.

Unionization rate by state

Today's Workplace blog has a post (with chart) showing the "unionization" rate on a state by state basis. Nationally the rate in 2011 was 13.3%. Top ten states: New York (26.4%). Alaska (24.3%) Hawaii (24.0 %) Washington (21.2%) Michigan (19.2%), New Jersey (18.8%), California (18.5%), Connecticut (17.6%), Oregon and Rhode Island (17.4%), and Nevada (17.3%). The "unionization" rate statistic is inflated a bit because it includes not only union members, but also those represented under a collective bargaining agreement. Louisiana is 46th (5.9%) and Mississippi is 41st (7.0).

EEOC Statistics

The EEOC has released a fascinating statistical chart depicting case filings on a state by state basis. Mississippi generated 1.8% of total charges and Louisiana 2.1%. Texas and Florida generated the most total charges, with California ranking third, despite a larger population. Of course California's state laws and state courts may provide a favorable environment for aggrieved employees thereby encouraging a bypass of the federal system.

Unionadelphia

In 2008 Philadelphia Magazine published an excellent piece on how big labor still dominates the City of Brotherly Love. Its a long piece but well worth a read as it pre-dates the Teaparty movement, but presages the anti-labor causes that fueled its rise.

NLRB Election rules suspended

The NLRB has "temporarily suspended" implementation of the new representation procedure rules in light of judicial decisions questioning the validity of the approval process. The Board has indicated it will process the petitions filed since the April 30, effective date under the new rule, and similarly indicated it is determined to reimplement the new procedures, and likely in short order.

Court strikes down NLRB election rules

A federal district court has struck down the NLRB's new election rules finding the NLRB lacked a quorum when they were promulgated. Apparently the fact that Member Hayes did not vote meant, in this case, he did not participate so the other two members who voted for the rule did not constitute a quorum.

Gimme your info or else

The Password Protection Act of 2012 was introduced yesterday. If passed the Act would severely restrict an employer's ability to compel or coerce employees into providing access to any information stored anywhere on the internet.

Whose been in office when the jobs grew?

Bloomberg reports a "who knew" moment. Since 1960, private sector job growth when Democrats resided in the White House almost doubles the growth occurring when Republicans resided there. This despite the Republicans holding the presidency 5 years longer than Democrats. The average number of jobs created during a Democrat's residency is 150,000, compared to 71,000 for Republicans.

Union pushes back for Saints players

The National Football League Players Association (NFLPA) has filed a grievance against the suspensions imposed by Commissioner Goodell. The union makes a procedural argument and a technical immunity argument. The union claims the discipline imposed by Goodell is outside his authority and that under the Collective Bargaining Agreement discipline of players can only be imposed by the System Arbitrator, not Goodell. The second argument relates to a provision of the new CBA that released players for conduct engaged in prior to its effective date (August 4, 2011). Of note, this is a challenge by the NFLPA, not the players, who have not yet appealed.

Job growth slows

Job growth slowed in April with only 115,000 new jobs created. unemployment dips to 8.1%.

GC Solomon issues "R" case guidance

NLRB Acting General Counsel Lafe Solomon issued a guidance memorandum concerning the NLRB's new procedures for handling representation elections. The new procedures take effect tomorrow, April 30th.