Unions have a broad right to request information related to grievances or to the collective bargaining process. With respect to collective bargaining, the position an employer takes at the bargaining table may open the door to even more intrusive than expected information requests.
Category Archives: Labor Relations
The DOL Gets Creative in Its Efforts to Address the Wage Gap
Posted in Labor RelationsDid you know the DOL was in the application development business?
In May 2011, the U.S. Department of Labor launched its first smartphone application, designed to help employees track their hours worked and wages owed. Continuing this trend of embracing the use of novel technology to help in its enforcement efforts, on January 31, 2012, the DOL, along with its partners on the National Equal Pay Task Force, announced a contest for creating software applications for use to promote pay equality — the Equal Pay App Challenge.Continue reading this entry
Union Must Prove Changed Circumstances to Overcome Bargaining Impasse
Posted in Labor RelationsOn January 20, 2012, a federal court slapped down the NLRB for insisting that an employer must “test the Union’s stated willingness to move” after impasse is reached. The Board had ruled that an employer committed unfair labor practices when it declared an impasse and implemented a unilateral wage increase because “there was at least professed flexibility” over the sticking point of health insurance. The Court of Appeals for the D.C. Circuit, however, set aside the Board’s ruling of no impasse, finding that it was not supported by substantial evidence.Continue reading this entry
NLRB Declares Arbitration Agreements Prohibiting Class Action Claims Unlawful
Posted in Labor Relations; New and Recent LegislationThe NLRB has decided to enter the fray in a big way as to the enforceability of arbitration agreements that do not allow for arbitration of class claims. On January 3, 2012, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, that it constitutes an unfair labor practice for an employer to require, as a condition of employment, that employees arbitrate claims as individuals rather than a class, unless a union has agreed to such arbitration provision. The NLRB found that such an agreement interferes with employees’ right to engage in protected concerted activity. This decision is a rebuke by the NLRB of two recent United States Supreme Court decisions: 14 Penn Plaza LLC v. Pyett and AT&T Mobility v. Concepcion. Continue reading this entry
Potty Mouth Employee Loses Protection
Posted in Labor RelationsThe NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked his supervisors about how his commissions were calculated and when he could take bathroom and meal breaks. He griped about being employed on a 100-percent commission sales basis and said he should at least receive minimum wage.Continue reading this entry
NLRB Delays Its Notice-Posting Rule Once Again
Posted in Labor RelationsRegular readers of Foley’s Legal News: Employment Law Update will know that the NLRB has proposed a rule that would require most private sector employers in the United States to post a notice that informs their employees about their rights under the National Labor Relations Act. These rights include the right to form, join, or assist a union and the right to bargain collectively with their employers through their chosen representatives. The NLRB issued the final rule on the posting requirement on August 30, 2011. See the NLRB’s proposed poster and the NLRB’s FAQ document about the rule. Should the rule become effective, the poster is essentially the same as the one that federal contractors are already required to post under Executive Order 13496.Continue reading this entry
NLRB Potpourri Is Not Smelling So Good for Employers
Posted in Labor RelationsIn the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:
- On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and delays. The rule is due to take effect on April 30, 2012, and is designed to speed up the NLRB election process and reduce the need for administrative hearings. The proposed rules are generally regarded as favoring unions who seek to organize non-union workplaces. Employers who face potential union organizing would be well advised to become familiar with the rule available online. The U.S. Chamber of Commerce immediately filed suit seeking to prevent the rule from taking effect. According to a statement issued by the Chamber, the NLRB’s final “‘ambush election rule’ imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize.”
NLRB Delegates Certain Authority to General Counsel in Preparation for Loss of Quorum
Posted in Labor RelationsOn November 3, 2011, the NLRB issued an order contingently delegating to the general counsel full authority over court litigation matters that would otherwise require Board authorization and full authority to certify results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act. The delegation over court litigation matters includes full and final authority to initiate and prosecute injunctions under Sections 10(j), 10(e), and 10(f), as well as to initiate and prosecute contempt proceedings pertaining to the enforcement of, or compliance with, any order of the Board.
Is the IRS Voluntary Classification Settlement Program Right for Your Business?
Posted in Labor RelationsThe IRS, U.S. Department of Labor (DOL), and various states have joined together in an effort to crack down on misclassification of employees as independent contractors, as reported in the October 10, 2011 edition of Legal News: Employment Law Update. In combination with the increased investigation and enforcement of laws pertaining to employee classification, the IRS has also introduced the Voluntary Classification Settlement Program (VCSP), which allows companies to prospectively reclassify certain individuals as employees without significant penalties. However, there are certain restrictions and pitfalls to be aware of before your company enters the VCSP.
Labor Board Ruling Gives Unions More Rights to Organize Smaller Subgroups of a Company’s Workforce
Posted in Labor RelationsIn our September 6, 2011 update, our article entitled, “The NLRB Continues Its March to the Left” made a short and general mention of a very recent Board ruling that bears some additional discussion.
Hispanics United of Buffalo — The NLRB Goes Online!
Posted in Labor RelationsA little known feature of the federal law governing labor relations in the private sector — the National Labor Relations Act (NLRA) — is the right of even non-unionized employees to engage in so-called "protected concerted” activity. Non-union employers can be and often are caught in the trap arising from this right unawares.
Despite Its Leftward Leanings, NLRB Reminds Employees They Can Fight Back Against Unions, Even During the Term of a Collective Bargaining Agreement
Posted in Labor RelationsIn our blog post last week titled, “NLRB Continues Its March To The Left” , we noted that in recent weeks, the NLRB, the agency charged with enforcing the National Labor Relations Act, has issued several controversial, union-friendly decisions, including rulings that assist unions to organize smaller sectors of an employer’s workforce and retain their exclusive representation rights for already organized workforces. We also noted that because the current NLRB is dominated by members appointed by President Obama, it comes as little surprise that the NLRB has issued these pro-union decisions. However, even in this era of a left-leaning NLRB, in a recent decision, the Board has reminded employees dissatisfied with their union representation they retain a potent, if not well known, means to express their dissatisfaction with an entrenched union: the “deauthorization petition.”
The NLRB Continues Its March to the Left
Posted in Labor RelationsThe NLRB interprets and enforces the National Labor Relations Act, (https://www.nlrb.gov/national-labor-relations-act) which means, among other things, that the Board decides cases that define: 1) what an employer can and cannot do in union elections, and 2) what constitutes an unfair labor practice.
Firing Workers Who Argued Wage Dispute in News Interview Violated NLRA
Posted in Labor RelationsFor most employers, the majority of the disputes they experience about discipline and termination of employees arise out of the protections employees enjoy from federal and state anti-discrimination statutes. However, employees also enjoy rights that are protected by the NLRA, even those employees who are not represented by a labor union. As we have addressed recently, disciplining employees based on statements about their employment made via social media can potentially present problems. Employers also should be aware of the risks involved when taking action against employees for comments made through more traditional medium. Recently, the NLRB found that an employer violated federal labor law when it fired employees for participating in a television interview and making comments critical of their employer.
NLRB Proposes to Change Its Election Case Rules
Posted in Labor RelationsOn June 22, 2011, the NLRB issued a notice of proposed rulemaking to amend its rules when processing a union election petition. (See 76 F.R. 36812). According to the notice, the proposal “would simplify representation case procedures and render them more transparent and uniform cross regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.”
Placement of Production Line in Right to Work State Alleged to Violate NLRA
Posted in Labor RelationsOn April 20, 2011, the Acting General Counsel of the NLRB issued a complaint against The Boeing Company (Boeing) based on Boeing’s decision to place a second production line for one of its aircrafts in South Carolina, a right-to-work state. The acting general counsel claims that Boeing’s decision was in retaliation for past strikes by its employees in Washington and was “inherently destructive” of rights guaranteed under Section 7 of the National Labor Relations Act (NLRA). The acting general counsel is seeking a return of the production line to Washington, among other remedies.
Again, NLRB Files Complaint Over Facebook Firing
Posted in Labor RelationsThe NLRB has filed a complaint against an employer for terminating five employees for statements they posted on Facebook.
This complaint alleges the postings by employees of Hispanics United of Buffalo were protected because the employees were “concertedly complaining on [the] Facebook page regarding working conditions … .” Complaining about work conditions is considered a protected activity under the National Labor Relations Act (NLRA) Section 7.
“Do We Have to Provide the Information?” Isn’t Always the Only Question
Posted in Labor RelationsEmployers often receive requests for information from current and former employees, as well as unions. For example, a former employee might ask for a copy of his/her personnel file, or a union might ask for copies of certain disciplinary records. When these requests are made, the first question an employer generally asks, and properly so, is “do we have to provide this information?”
NLRB Proposes New Employer Notice to Inform Employees of Their NLRA Rights
Posted in Labor RelationsOn December 22, 2010, the NLRB published a proposed rule in the Federal Register that would require all employers who are subject to the NLRB’s jurisdiction to post a notice that explains the rights of employees under the National Labor Relations Act (NLRA). The notice would inform employees that under the NLRA they have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid or protection as well as the right to refrain from engaging in such activities.
New DOL Regulations Will Require Federal Contractors and Subcontractors to Notify Employees of Their Rights to Organize
Posted in Labor Relations; New and Recent LegislationNew regulations recently issued by the Department of Labor (DOL) will soon require that most government contracts contain specific provisions requiring federal contractors and subcontractors to notify employees of their rights to unionize and bargain collectively under federal labor laws. The DOL’s Final Rule (PDF), published May 20, 2010, implements the requirement of Executive Order 13496 (PDF), signed by President Obama on January 30, 2009, that federal contractors post appropriate notices in the workplace. The posting requirement will become a mandatory provision of all qualified government contracts from solicitations issued on or after June 21, 2010.
The DOL’s rule creates specific notice requirements, with employer postings required to meet the following criteria:
- The posting must be in the format that the employer posts other required notices, meaning that an employer that posts its notices in physical form must post the new DOL required poster in physical form, and an employer that provides required notices in electronic form also must provide the new required notice in electronic form.
- Employers posting in physical form must place the posting(s) in conspicuous places around all working areas — including working areas of manufacturing plants and office spaces — so that the notices are prominent and readily seen by employees. Physical posters also must be in the language(s) spoken by a "significant portion" of the workforce.
- Employers that post the notice in electronic format may satisfy the posting requirement by providing a link to the DOL’s Web site containing the full text of the posting. However, the link to the DOL site must read "Important Notice About Employee Rights To Organize And Bargain Collectively With Their Employers."
The new provision requiring such posting does not need to be included (but may be included at the government’s option) in direct contracts with a value less than $100,000 and does not need to be included in subcontracts with a total value of $10,000 or less. The language also need not be included in direct contracts or subcontracts for work performed exclusively outside the United States.
While this rule does not create any new posting requirements under current federal contracts, employers who do business with the U.S. government should be aware that such changes are on the near horizon and be prepared to make the required postings under all new federal contracts.