NLRB Inspector General Finds No Evidence Member Hayes Was Enticed to Resign

By Edwin S. Hopson

As we reported in a blog article on December 6, 2011, NLRB Republican Member Brian Hayes was being investigated by the NLRB’s Inspector General over an allegation that he had been enticed to resign his position as a Member of the Board, which at the time would have reduced the number of board members to two, leaving the Board unable to issue decisions. Mr. Hayes had earlier threatened to resign in a letter to the Chairman of the Board over certain proposed regulations being considered by the Board’s other two members. Mr. Hayes decided later and announced that he was not resigning.

In an article by Kevin Bogardus posted on the website of The Hill on January 26, 2012, it was reported that the Inspector General had completed his investigation and concluded that Mr. Hayes had not been enticed to resign his post.  “As a result of our investigative efforts, we found no evidence that enticements were made to Member Hayes to resign his position as a Board Member,” Dave Berry, the NLRB’s Inspector General wrote in a January 23 memo to Mr. Hayes and NLRB Chairman Mark Pearce. The Inspector General did note, however, that Mr. Hayes had sought employment with the law firm of Morgan, Lewis & Bockius. Nevertheless, Mr. Berry found no wrongdoing by Member Hayes.  Apparently, Mr.Hayes had recused himself from any matters before the Board where the Morgan firm was involved.  By December 22, 2011, according to the report, Member Hayes advised the Morgan firm that he was no longer interested in employment with them.

This may not be the end of the matter.  The Hill also reported that U.S. Representative George Miller, a Democrat from California and the ranking member on the House Education and the Workforce Committee, wrote a letter on January 26, 2012, to U.S. Attorney General Eric Holder requesting that the Justice Department initiate its own investigate of Mr.Hayes’ resignation threat.

NLRB Chairman Outlines Intention to Push for More Election Changes

By Edwin S. Hopson

On January 26, 2012, Sam Hananel of the Associated Press reported that Mark Pearce, Chairman of the National Labor Relations Board, plans to push for the issuance of more rules making it easier for unions to organize employers under the National Labor Relations Act.  The Board in December, 2011, had already issued final rules regarding election procedures to, in a limited way, eliminate some of the delays in the union representation election process, to take effect at the end of April 2012.  Earlier in the year, before Chairman Wilma Liebman’s term expired, the Board had laid out a broader agenda to speed up representation elections. 

Early this month, President Obama had made three recess appointments to the Board that have been controversial.  Republicans and business groups are contending that the appointments were unconstitutional since the Senate was not in recess. If they are right, all actions taken by the Board since that date may be void.

Pearce stated “[o]ur goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayer” and “[m]y personal hope is that we take on all of these things and consider each one of these rules. We presume the constitutionality of the president’s appointments, and we go forward based on that understanding.”

The changes Pearce may be seeking in addition to those announced in December, 2011, are shown below in a chart used in June 2011, that also shows current procedure:

Current procedures	Proposed procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.	Election petitions, election notices, and voter lists could be transmitted electronically.  NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.	The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements.	The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted.  The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved.	The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.	The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters.	Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters.	The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.

EEOC Announces Fiscal Year 2011 Statistics Showing Record Case Dispositions

By Edwin S. Hopson

On January 24, 2012, the U.S. Equal Employment Opportunity Commission announced that in Fiscal Year 2011, it received a record 99,947 charges of employment discrimination.  During that year it also obtained $455.6 million in relief through its administrative program as well as litigation.  EEOC also announced that, as in Fiscal Year 2010, it resolved more charges than it took in with 112,499 case resolutions.  That is an increase of some 7% over Fiscal Year 2010.  This meant that for the first time in 10 years, the EEOC reduced its case inventory.

 The Fiscal Year 2011 data also indicate:

-5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

-The EEOC’s mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5% more than in Fisal Year 2010 (9,362), and benefits — $170,053,021– $29 million more than Fiscal Year 2010.

-The Commission filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding fiscal year.

-Some 23 of the lawsuits filed by EEOC involved systemic allegations involving large numbers of persons and an additional 67 had multiple victims (less than 20).

-The Commission also filed 261 “merits” law suits, including direct law legal actions against respondents and interventions in pending private lawsuits alleging violations of the substantive provisions of the statutes it enforces, as well as suits to enforce administrative settlements.

-EEOC’s public outreach and education programs directly reached approximately 540,000 persons.

-In the federal sector, where the EEOC has different enforcement obligations, the Commission resolved a total of 7,672 requests for hearings, securing more than $58 million in relief for parties who requested hearings.  It also resolved 4,510 appeals from final agency determinations.

Charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37% of all charges.  EEOC also announced that it received 35,395 charges alleging  involving claims of race discrimination; this comprised some 35% of all charges received. While the numbers race discrimination charges declined from Fiscal Year 2010, charges with the three other most frequently-cited allegations increased:

-Sex discrimination–28,534

-Disability discrimination–25,742

-Age discrimination—23,465

EEOC’s enforcement of the Americans with Disabilities Act of 1990, as amended, produced the highest increase in monetary relief among all of the statutes it administers: the administrative relief obtained for ADA charges increased by some 36% to $103.4 million compared to $76.1 million in Fiscal Year 2010.

In ADA cases, back impairments were the most frequently cited impairment, followed by other orthopedic impairments, depression and diabetes.

For the first full fiscal year of enforcement, EEOC received 245 charges under the Genetic Information Nondiscrimination Act, which prohibits discrimination on the basis of genetic information, including family medical history. Thus far, none of the GINA charges has proceeded to litigation.

The complete Fiscal Year 2011 enforcement and litigation statistics are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

OSHA 300 Log Must Be Posted by February 1, 2012

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2012 to April 30, 2012 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations. 

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code	Industry
525	Hardware Stores
542	Meat and Fish Markets
544	Candy, Nut, and Confectionery Stores
545	Dairy Products Stores
546	Retail Bakeries
549	Miscellaneous Food Stores
551	New and Used Car Dealers
552	Used Car Dealers
554	Gasoline Service Stations
557	Motorcycle Dealers
56	Apparel and Accessory Stores
573	Radio, Television, & Computer Stores
58	Eating and Drinking Places
591	Drug Stores and Proprietary Stores
592	Liquor Stores
594	Miscellaneous Shopping Goods Stores
599	Retail Stores, Not Elsewhere Classified
60	Depository Institutions (banks & savings institutions)
61	Nondepository Institutions(credit institutions)
62	Security and Commodity Brokers
63	Insurance Carriers
64	Insurance Agents, Brokers, & Services
653	Real Estate Agents and Managers
654	Title Abstract Offices
67	Holding and Other Investment Offices
722	Photographic Studios, Portrait
723	Beauty Shops
724	Barber Shops
725	Shoe Repair and Shoeshine Parlors
726	Funeral Service and Crematories
729	Miscellaneous Personal Services
731	Advertising Services
732	Credit Reporting and Collection Services
733	Mailing, Reproduction, Stenographic Services
737	Computer and Data Processing Services
738	Miscellaneous Business Services
764	Reupholstery and Furniture Repair
78	Motion Picture
791	Dance Studios, Schools, and Halls
792	Producers, Orchestras, Entertainers
793	Bowling Centers
801	Offices & Clinics Of Medical Doctors
802	Offices and Clinics Of Dentists
803	Offices Of Osteopathic Physicians
804	Offices Of Other Health Practitioners
807	Medical and Dental Laboratories
809	Health and Allied Services,Not Elsewhere Classified
81	Legal Services
82	Educational Services (schools, colleges,universities and libraries)
832	Individual and Family Services
835	Child Day Care Services
839	Social Services, Not Elsewhere Classified
841	Museums and Art Galleries
86	Membership Organizations
87	Engineering, Accounting, Research,Management, and Related Services
899	Services, not elsewhere classified

NLRB’s Acting General Counsel Announces Revisions to Deferral Policy

By Edwin S. Hopson

On January 20, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, in a press release announced a revision to the Board’s existing policy regarding deferral of unfair labor practice charges to arbitration under collective bargaining agreements.  Citing concerns about delays in processing grievances to arbitration, Solomon directed Regional Directors as follows:

 Section 8(a)(1) and (3) Cases

 –Conduct Charging Party investigation, make arguable-merit determination, and determine whether arbitration is likely to be completed in less than a year.

 –If arbitration is likely to be completed in less than a year:

           –Defer and conduct quarterly reviews.

           –At the fourth quarterly review (in new and currently pending cases in deferral status), send “show cause” letters to all parties seeking an explanation of why deferral should not be revoked.

           –If the Charging Party does not respond, contact the Charging Party and any individual discriminatees before dismissing for failure to prosecute.

          –If there is insufficient reason to continue deferral, conduct a full investigation; if the charge is meritorious, submit the case to Advice; if the charge is non-meritorious, dismiss absent withdrawal.

         –If there is good reason to continue deferral, contact Advice.

 –If arbitration is not likely to be completed in less than a year:

         –Determine, in consultation with all parties, including any individual discriminatees, whether deferral is inappropriate because the delay is likely to frustrate the Board’s remedial ability or unduly disadvantage the Charging Party.

        –If deferral is deemed inappropriate, conduct a full investigation and, if the charge is meritorious, submit the case to Advice.

       –If deferral is considered appropriate despite the delay, contact Advice.

Section 8(a)(5) Cases

–Make deferral decisions and conduct quarterly reviews, as under existing policy.

–If  arbitration is not likely to be or has not been completed within a year, and the case implicates individuals’ statutory rights or involves serious economic harm to the Charging Party, the Region may at its discretion conduct a full investigation and submit the case to Advice in the same manner as Section 8(a)(1) and (3) cases.

Any questions regarding implementation of this revised policy are to be directed to the Division of Advice in Washington, D.C.

Business Group Challenges Recess Appointments to NLRB

By Edwin S. Hopson

On January 13, 2012, the National Federation of Independent Business announced in a press release that it was seeking to amend its legal action filed in federal court on September 28, 2011, against the National Labor Relations Board over its new notice posting regulation, to include a new claim that the NLRB lacks the authority to enforce the notice posting regulation inasmuch as the recent recess appointments to the Board by President Obama violated the U.S. Constitution.  The new claim contends that the Senate was not in recess and therefore the President lacked the authority to make recess appointments to the Board.  Thus, if the President lacked authority to made the three recess appointments, then the NLRB will be down to just two Members and unable to function.

Supreme Court Bars Suits Under the Discrimination Laws Brought on Behalf of Persons Considered “Ministers”

By Edwin S. Hopson

In a case decided January 11, 2012, the U.S. Supreme Court unanimously held that a teacher at a Lutheran School could not maintain an action under the employment discrimination laws arising out of her discharge from employment.  Chief Justice John Roberts, writing for the court, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 565 U.S. ___, No. 10-553 (2012), stated that the “ministerial” exception to the application of such laws was grounded in the Establishment and Free Exercise Clauses of the First Amendment and should be applied to this teacher because she was a minister within the meaning of the “ministerial” exception.  This was so he reasoned because she had been “called”, trained, and functioned as a minister for at least part of the school day.  It was also noted that she had claimed a special housing allowance on her taxes based on her status as a minister. 

In reversing the U.S. Court of Appeals for the Sixth Circuit, the Supreme Court noted that the Sixth Circuit had given too much weight to the teacher’s secular duties during the school day and the fact that she was performing many of the same duties as secular teachers in the same school who were not covered by the “ministerial” exception.

New Members of NLRB Are Sworn In

On January 9, 2012, the three recess-appointed Members of the National Labor Relations Board were sworn in and assumed office.  The Board was down to two Members and thus unable to function for only about six days.  At the moment the Board is up to full strength.  However, it is anticipated that there will be challenges to decisions made by the Board based on the manner in which the President made the three recess appointments.

NLRB Invalidates Mandatory Arbitration Provision Restricting Class Claims

In a decision issued January 3, 2012, a two Member NLRB, with Member Hayes recusing himself, ruled in D.R. Horton, Inc., 357 NLRB No. 184 (2012), that an employer may not require employees covered by the National Labor Relations Act to sign arbitration agreements which prevent them from pursuing class or collective action claims in court or arbitration.  Such agreements, according to Chairman Pearce and Member Becker, violate Section 7 of the Act.  In reaching this decision, the Board rejected a 2006 NLRB General Counsel internal opinion to the contrary. 

The agreement in question prohibited an arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.  Prior to its decision, the Board had sought amicus briefs on the issues raised by the case from interested parties and received more than a dozen.

The Board’s order requires D.R. Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all other possible forums including the courts and arbitration.

President Makes Recess Appointments to NLRB

On January 4, 2012, President Obama announced three recess appointments to the National Labor Relations Board:  Terrence Flynn, a Republican, who had earlier been nominated by the President about a year ago, but whose nomination had not been acted upon by the Democratically-controlled Senate; and Democrats Sharon Block, a Department of Labor official, and Richard Griffin, the General Counsel of the International Union of Operating Engineers.

This action was immediately challenged by various Republicans including House Education and the Workforce Committee Chairman JohnKline(R-MN) and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) who have formally asked the National Labor Relations Board and the White House Counsel to provide documents and information concerning the appointments. The information request sought details of the qualifications of the appointees, and president’s legal authority to grant recess appointments while the Senate is in pro forma session.

Kline, in his press release, predicted that the process followed by the President will lead to legal challenges to any decisions issued by the new Members of the Board.

LexisNexis Announces Nomination of the Wyatt Employment Law Blog as a Candidate for its Top 25 Labor and Employment Law Blogs of 2011

By Edwin S. Hopson

Each year, LexisNexis honors a select group of blogs that set the online standard for a given practice area.  We were just notified that the Wyatt Employment Law Report has been nominated as a candidate for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011.  The Top 25 will be featured on the LexisNexis site: Labor and Employment Law Community.

If you’d like to support our nomination, please comment on the announcement post at Labor and Employment Law Community.  

Each comment will counted as a vote toward the support of the Wyatt Employment Law Report. To submit a comment, visitors need to log on to their free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the  blog nomination page. The comment period for nominations ends on September 12, 2011.

Your comments/votes will be greatly appreciated.

Trade Group Files Suit Against NLRB to Block Its Notice Posting Rule

By Edwin S. Hopson

On September 8, 2011, the National Association of Manufacturers (NAM) filed suit in the U.S. District Court for the District of Columbia to stop the National Labor Relations Board from implementing its “Posting Requirement” rule.  The NLRB’s rule, which is slated to be effective in mid-November, 2011, would require all private employers who are not government contractors to put up posters informing employees in great detail of their right to organize and obtain union representation.  See Wyatt blog posted December 21, 2010.  The legal action asserts that the NLRB is acting outside its jurisdiction in promulgating the rule and requests that the rule be set aside.

NAM’s press release quoted NAM CEO Jay Timmons as stating:

“This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have. The growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover. We are committed to fighting this rule in order to rein in the NLRB. We also are encouraging Congress to act soon to stop this rogue agency.”

A copy of the complaint can be found at:  http://www.crowell.com/files/National-Association-of-Manufacturers-v-National-Labor-Relations-Board.pdf

NLRB General Counsel Issues Report On Significant Social Media Case Developments

By Leila G. O’Carra

A few weeks ago, the Acting General Counsel for the National Labor Relations Board (NLRB) issued a report presenting recent case developments relating to social media.  He wrote about the following cases in which the NLRB found that the employer had violated the NLRA:

●          A non-profit social services provider unlawfully discharged employees for posting on Facebook.  In preparation for a meeting with management, the employee posted a question asking whether her co-workers felt that they provided sufficient aid to the employer’s clients.  Although some of the responses contained sarcasm and swear words, the NLRB ruled that the Facebook conversation was protected concerted activity.

●          An ambulance service wrongfully discharged an employee for complaining about her supervisor on Facebook.  The employee posted negative comments after the supervisor illegally refused to allow the employee union representation in connection with a customer complaint about the employee’s work.  The employee’s Facebook comments were protected, despite the name-calling (i.e. “scumbag”) used in the post because the comments were provoked by the supervisor’s unlawful refusal to provide union representation.

House of Representatives Passes Bill to Prevent NLRB From Ordering Relocation of Work

By Edwin S. Hopson

On July 19, 2011, in response to the NLRB’s issuance of complaint against Boeing arising out of Boeing’s decision to build a number of its new 787 Dreamliners in a non-union plant in South Carolina, a bill entitled The Protecting Jobs From Government Interference Act, H.R.2587, was introduced in the U.S. House of Representatives by Representative Tim Scott (R-SC).  In part, it would amend the National Labor Relations Act so as to prohibit the NLRB from ordering any employer to relocate, shutdown or transfer employment under any circumstances, and would apply to all cases not yet fully adjudicated before the Board.

H.R. 2587 on September 15, 2011, passed the House of Representatives with a vote of 238 to 186.  Those voting in favor included some 7 Democratic members of the House.  Eight Republicans voted against the bill. Passage of this measure in the Democratically controlled Senate is doubtful at this time.

The NLRB “Flip-Flops” Again

By George J. Miller

Labor law involves balancing many interests of employers, employees, and labor unions.  The National Labor Relations Board is the federal agency created by Congress in 1935 to balance these interests in the first instance, subject to review by the federal courts of appeals.  Students of labor law know that the NLRB has frequently overruled previous NLRB decisions and has sometimes overruled those decisions multiple times on the same issue of law.  For example, between 1962 and 1982, the NLRB overruled prior NLRB decisions three times on the issue of whether or not false election campaign propaganda will warrant setting aside an election and ordering a second election.  See Midland National Life Insurance Co., 263 NLRB 127 (1982). 

Arguably, this flip-flopping is attributable to the political party of the majority of the members of the Board at a given time and their views about the relative weighting of the interests of employees, employers, and labor unions.  It may also be due to changes in the types of people appointed to the Board that began in the Reagan administration, as suggested by some commentators.

Three weeks ago the NLRB flip-flopped again when it overruled two decisions of the “Bush” Board, which in turn had overruled decisions of the “Clinton” Board.   The two most recent decisions are Lamons Gasket Co. and UGL-UNICCO Service Company, which involved fundamentally the same issue: how to balance (a) the right of employees to freedom of choice in deciding whether or not to continue to be represented by the same labor union, a different union, or none at all, and (b) maintaining the incumbent union’s status as the exclusive bargaining representative of the employees by barring the employees from challenging the union’s status in an election for a “reasonable” period of time after either a voluntary recognition of the union by the employer or the sale of the company to a successor employer.  A majority of the Obama Board (Chairman Liebman and Members Becker and Pierce) decided in favor of the latter, reasoning that doing so furthers the goal of the law to maintain stability in labor/management relations and restores Board law to what it had been for many years before the Bush Board disturbed it.  In both cases, Member Hayes, a Republican, dissented, reasoning that the Board lacked a rational basis for overruling the Bush Board decisions.

The practical effect of these new decisions, if they are ultimately enforced by the courts of appeals, is that after an employer voluntarily recognizes a union, or after it becomes a successor to an employer which had a duty to bargain with a union (e.g., after purchasing the company), the incumbent union’s status as the employees’ exclusive bargaining representative cannot be challenged for at least six months after the first bargaining session, the period of time which the Board in both cases ruled is a reasonable period of time in these and future similar cases.

U.S. Chamber of Commerce Files Suit to Block the NLRB’s New Notice Posting Rule

By Edwin S. Hopson

According to a press release issued by the U.S. Chamber of Commerce, it and the South Carolina Chamber of Commerce, on September 20, 2011, filed a lawsuit against the National Labor Relations Board (NLRB) challenging the NLRB’s new rule requiring businesses to post notices explaining employees’ rights to unionize. The case is styled Chamber of Commerce, et al. v. National Labor Relations Board, et al. and was filed in the U.S. District Court of South Carolina.

The press release quoted Robin Conrad, Executive Vice President of the National Chamber Litigation Center, as saying, “[t]he NLRB has no authority to impose any of these requirements. This is nothing more than labor regulation run amok. Adding insult to injury, the Board’s new rule violates the First Amendment by forcing employers to use their own resources to post the NLRB’s pro-union message on the company’s own property.”

The lawsuit claims that the NLRB’s final rule regarding Notification of Employee Rights Under the National Labor Relations Act violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and the First Amendment of the Constitution. The NLRB’s new rule — which applies to most private employers in the U. S.– would become effective on November 14, 2011.

This action follows a similar one filed by the National Association of Manufacturers on September 8, 2011, in the U.S. District Court for the District of Columbia.

Tax Issues Associated with Misclassification of Persons as Independent Contractors

By George J. Miller

When the Wage and Hour Division of the U.S. Department of Labor or a state department of labor determines that an employer has misclassified employees as independent contractors and has failed to pay them minimum wage or overtime pay required by law, the remedy at the administrative level typically has been for the employer to pay the affected employees back pay sufficient to make up for the lost wages.  Of course, an employer which has misclassified employees in this fashion has not been withholding federal, state, or local income taxes, or FICA, and has not been remitting those taxes (including the employer’s share of FICA) or filing quarterly payroll tax returns with the government regarding the misclassified workers. 

 A lingering, worrisome question in settling such disputes with the Wage and Hour Division or a state department of labor has been whether the employer will be reported to state or federal internal revenue agencies and will be required to pay taxes, penalties, and interest in addition to back pay.  The specter of facing the tax man in such matters became more real yesterday, when U.S. Secretary of Labor Hilda Solis announced that she has signed memoranda of understanding (MOU’s) with the Internal Revenue Service and the state labor commissioners and other state agencies in the states of Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington, pledging greater cooperation to share information in an effort to protect employees from being improperly classified as independent contractors.  

House Committee Holds Another Hearing on the NLRB

By Edwin S. Hopson

On September 22, 2011, the U.S. House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN), held a hearing entitled, “Culture of Union Favoritism: Recent Actions of the National Labor Relations Board.” The hearing focused on several decisions issued by the National Labor Relations Board (NLRB) in late August just before the term of Chairman Liebman expired.  According to a press release, the Committee Chairman in his opening statement noted, “[t]hrough three decisions handed down in one afternoon, the board restricted workers’ right to a secret ballot election, undermined employers’ ability to maintain unity in the workplace, and created new barriers for those who wish to challenge union representation.  For anyone following the Obama board, this barrage of activist decisions – however unacceptable – was not unexpected. But for workers and job creators struggling to move this country forward, it is an outrage.”

 NLRB Chairman Mark Pearce’s response was:  “The National Labor Relations Board takes very seriously its obligation to enforce the law as enacted by Congress in a fair and even-handed way. Since August of last year, the Board issued more than 400 decisions, finding for employer interests in some, labor union interests in others, and individual employee interests in still others. In its hearing today, the Committee chose to focus on three decisions issued in late August. Two of them reversed previous Board rulings that were themselves highly controversial when they issued. The third clarified a confusing standard, allowing a group of Certified Nursing Assistants at a nursing home in Alabama to exercise their choice on union representation through a secret ballot election. Finally, the Board issued a rule which requires employers under the jurisdiction of the NLRB to post a notice of employee rights under our law, including the right to refrain from union activity, available for free download from our website. To my mind, these actions represent pursuit of the mission that Congress gave this agency – to protect worker free choice, promote collective bargaining and preserve labor peace.”

U.S. House Seeks to Block President Obama’s Ability to Recess Appoint Officials

By Edwin S. Hopson

In July, 2011, Congressman Jeff Landry, a Republican from Louisiana, announced that he was part of an effort in the U.S. House of Representatives intent on keeping the House of Representatives in session continuously in order to prevent the U.S. Senate from going into recess without the House’s consent.  The purpose is to prevent President Obama from issuing recess appointments.  The last recess appointment, according to Representative Landry, was Craig Becker to the National Labor Relation Board.  In a July 1, 2011, press release, Landry stated:

“This morning – under the instruction of Speaker Boehner, Leader Cantor, and Whip McCarthy – I presided over a pro forma session in the United States House of Representatives, preventing Congress from going into recess and blocking President Obama from issuing recess appointments. * * *  Under Article 1, Section 5 of the Constitution, the House of Representatives can prevent the Senate from recessing by withholding its consent.  Simply put:  we do so by voting down, or not considering, a Senate adjournment resolution.  And when we do so, we block the Administration’s ability to make recess appointments.”

Congressman Landry, in his press release, stated that he is leading a coalition of 77 freshmen Congressmen requesting that the House Republican leadership take measures to prevent any recess appointment by President Obama for the remainder of the 112th Congress.

The impact of this action could be a cessation of the National Labor Relations Board’s ability to issue decisions after December 31, 2011, when Member Becker’s recess appointment expires.  At that time it will be down to two members.  Under the U.S. Supreme Court’s decision in New Process Steel v. National Labor Relations Board, 130 S. Ct. 2635 (2010), the NLRB lacks the power under the National Labor Relations Act to issue decisions once the five member board gets down to less than three members.

IRS Introduces New Worker Classification Program

By James A. Nitsche

The Internal Revenue Service has launched a new program that provides partial relief from federal employment taxes for eligible employers that agree to treat workers as employees prospectively.  The program, referred to as the Voluntary Classification Settlement Program (“VSCP”), is available to many businesses, tax-exempt organizations and government entities that currently erroneously treat their workers, or a class or group of workers, as nonemployees or independent contractors and now wish to treat such workers as employees.

To be eligible, an employee must:

Consistently have treated the workers in the past as nonemployees;

Have filed all required Forms 1099 for the workers for the last three years; and

Not currently be under audit by the IRS, the Department of Labor or a state agency concerning the classification of such workers.

To apply to participate in the VSCP, an employer files Form 8952, Application for Voluntary Classification Settlement Program, at least sixty days before the employer wishes to begin treating the workers as employees.

An employer who is accepted into the VCSP  will be required to pay an amount equal to ten percent (10%) of the employment tax due on compensation paid to the worker for the most recent tax year; will not be liable for any penalties or interest; and will not be subject to an employment tax audit with respect to the classification of the workers for prior years.

Legislation Proposed to Curb/Roll Back Recent NLRB Actions

By Edwin S. Hopson

On October 5, 2011,Congressman John Kline(R-MN), the Chairman of the U.S. House Committee on Education and the Workforce, announced that he had introduced H.R. 3094 entitled, the “Workforce Democracy and Fairness Act.”  The proposed legislation is meant to curb/roll back some recent decisions and actions of the National Labor Relations Board including its proposal to speed up the representation election process.  According to a press release issued October 5, 2011, the proposed legislation would:

 ●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

 ●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

 ●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

 ●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Original cosponsors of H.R. 3094 include: Representatives Howard “Buck” McKeon (R-CA), Joe Wilson (R-SC), Virginia Foxx (R-NC), Duncan Hunter (R-CA), Phil Roe (R-TN), Glenn Thompson (R-PA), Tim Walberg (R-MI), Scott DesJarlais (R-TN), Todd Rokita (R-IN), Larry Bucshon (R-IN), Trey Gowdy (R-SC), Martha Roby (R-AL), Dennis Ross (R-FL), and Mike Kelly (R-PA).

A hearing by the committee on the measure will take place on October 12, 2011.

NLRB Postpones Effective Date of its Notice Posting Rule to January 31, 2012

By Edwin S. Hopson

On October 5, 2011, the National Labor Relations Board announced that it has postponed the implementation date for its new notice-posting rule to January 31, 2012.  It had originally been scheduled to become effective on November 14, 2011. 

The U.S. Chamber of Commerce and the National Association of Manufacturers have filed suit to block the new rule, but there has been no ruling in those cases. 

The NLRB cited as reasons for the extension, the need for more time “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  No other changes in the rule, or in the form or content of the notice, were made.

 Member BrianE.Hayes, who dissented from the original adoption of the rule, agreed with the postponement of the effective date of the rule.

Court of Appeals Refuses to Enforce Arbitration Clause

By George J. Miller

In the recent case of Hergenreder v. Bickford Senior Living Group, No. 10-1474, the U.S. Court of Appeals for the Sixth Circuit held that an employee could not be compelled to arbitrate an ADA claim against her employer when, under Michigan contract law, she had not contractually agreed to do so.  The company’s position was that she was bound to arbitrate the claim under the provisions in its Dispute Resolutions Procedure (“DRP”). However, there was no evidence that the employee had signed the DRP and little evidence she had ever seen it. The best the company could do was offer evidence that the DRP was distributed to all employees.  The employee denied that she had received it.  While the company’s employee handbook referred employees to the DRP “for details,” the handbook contained a disclaimer that it was not a contract, and everyone agreed it was not a contract. So the bottom line appears to be that employers in states in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee) who want to force employees to arbitrate employment disputes and waive their right to a jury trial need to have employees sign a document which forms a valid contract under the law of the applicable state.

House Committee Holds Hearing on Proposed Legislation to Roll Back/Block NLRB Actions

On October 12, 2011, the U.S. House Education and the Workforce Committee held a hearing on the proposed “Workforce Democracy and Fairness Act” (H.R.3094) recently introduced by Republicans.  The purpose of the legislation is to the proposed legislation is to roll back some recent decisions of the National Labor Relations Board and block its proposed rule that would speed up the representation election process.  Specifically, H.R. 3094 would:

●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Witnesses testifying were: attorney Charles Cohen, a Republican and former Member of the National Labor Relations Board, Robert Sullivan, President of R.G. Sullivan Consulting, on behalf of the Retail Industry Leaders Association, attorneys Michael J. Hunter, who represents unions, and Phillip B. Russell, who represents employers. 

The proposed legislation may pass the House, but most certainly cannot pass in the Senate at this point in time.

Errors Contributing to Improper Unemployment Benefits Being Paid

By Edwin S. Hopson

The U.S. Department of Labor reported on its website that it has been working with states to identify strategies to prevent overpayments that have become significant.

According to the Department, improper Unemployment Insurance benefit payments have been occurring when:

1. Recipients continue to claim benefits after returning to work;
2. Employers or their third party administrators do not submit timely or accurate separation information; and
3. Claimants fail to register with the state’s Employment Service as required by state law.

The amounts involved are large.  For instance, the error rate according to the Department in the following states involves the amounts set out below for the last three years in the aggregate:

California          6.5%    $1.6 billion

Florida             6.8%    $479 million

Illinois               12.7%  $1.2 billion

Indiana             43%     $1.7 billion

Kentucky         4.3%    $90 million

Louisiana          43.6%  $497 million

Michigan          8.8%    $640 million

Ohio                 16.3%  $866 million

New York        8.2%    $962 million

Texas               12.6%  $1 billion

Earlier this year, the Department states that it intervened with the ten states with the highest registration error rates to focus on the issue.  As a result, progress reportedly is being made, with a 23% reduction in improper payments to people who did not register with employment services agencies, including a more than 35% drop in eight states.

OSHA Announces That It Has Revised Its Compliance Assistance Materials

By Edwin S. Hopson

On October 17, 2011, the U.S. Occupational Safety and Health Administration (OSHA) announced that it had recently published new and revised information that explains workers’ and employers’ rights, as well as how to protect employees from hazards in the construction, general and maritime industries. To order free copies of these materials online you can go to OSHA’s Publications page at:

http://www.osha.gov/pls/publications/publication.AthruZ?pType=AthruZ#S,

or you can call OSHA’s toll free number at 800-321-6742 and request the materials.

Information on employers’ rights and responsibilities following an inspection are contained in a booklet entitled Employer Rights and Responsibilities. It explains what happens after an inspection, and discusses the types of violations for which an employer may be cited.

OSHA has also published information covering the construction, general industry and shipyard industries, and those who work outdoors.

       Laboratory Safety document and fact sheets (http://www.osha.gov/pls/publications/publication.athruz?pType=Industry&pID=117) advise laboratory managers on how to protect their workers from exposure to chemical, biological and physical hazards.

       Aerial Lifts Protect Yourself details measures employers must take to ensure safe use of aerial lifts by workers required to use this equipment.

       Aerial Lift Fall Protection Over Water in Shipyards QuickCard lists ways to protect workers using aerial lifts from injuries and death resulting from equipment failure, tip-over, falls and ejection.

       Permit-Required Confined Spaces in General Industry QuickCard explains what workers should do before entering a confined space, such as an underground vaults, tanks, storage bins, silos or manholes.

       Working Safely in Trenches QuickCard provides illustrations of protective systems that should be used to prevent worker injuries and death from trench cave-ins.

       Nail Gun Safety educates construction employers and workers on how to prevent work-related nail gun injuries.

       Protecting Workers from Heat Stress QuickCard and poster emphasizes the importance of employers providing workers with water, rest and shade to prevent workers from suffering heat illness, exhaustion and stroke.

Finally, OSHA’s Small Entity Compliance Guide for Respiratory Protection Standard provides small businesses with a comprehensive step-by-step guide complete with checklists and commonly asked questions.

Republican Senators Block GPO Nominee Over Senate’s Failure to Confirm NLRB Nominee

By Edwin S. Hopson

In an article by Josiah Ryan posted on www.thehill.com on October 19, 2011, it was reported that Senators Orrin Hatch (R) and Johnny Isakson (R) have prevented confirmation of William J. Boarman, the President’s nominee for head of the U.S. Government Printing Office, because the Democratically-controlled Senate has not scheduled a vote on the nomination of Terence Flynn, a Republican, to be a Member of the National Labor Relations Board. Mr.Flynn was nominated by President Obama on January 5, 2011, but to-date the Senate Health, Education, Labor and Pensions Committee has not approved the nomination, the first step in the Senate’s process.

Currently, there are three Members on the five-member Board:  Chairman Mark Pearce (D), Member Craig Becker (D) and Member Brian Hayes (R).  It appears that on December 31, 2011, the recess appointment of Member Becker will expire.  Should Mr.Flynn be confirmed by the Senate, then after December 31, 2011, the Republican Members would be in the majority.  If Mr. Flynn (or another nominee) is not confirmed this year, then the NLRB would likely be reduced to just two Members and be unable after December 31, 2011, to issue decisions or take other actions under the recent Supreme Court decision in New Process Steel v. NLRB, 30 S. Ct. 635 (2010).

House Committee Passes Measure to Roll Back Several Recent Actions by the NLRB

 By Edwin S. Hopson

On October 26, 2011, the U.S. House Committee on Education and the Workforce passed the Workforce Democracy and Fairness Act (H.R. 3094), a measure intended to roll back a number of recent actions by the National Labor Relations Board (NLRB). Specifically, H.R. 3094 would:

●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

 The vote was 23 to 16.

House Republicans Seek to Cut NLRB’s Budget

By Edwin S. Hopson

On November 1, 2011, Politico.com in an article by Seung Min Kim reported that a draft budget prepared by House Republicans “zeroes in on the National Labor Relations Board, which would see its funding cut by 17 percent, as well as several restrictions related to union elections and organizing activities.” The article noted that the “NLRB has been a prominent Republican foe, particularly due to its decision to block Boeing from moving a plant from Washington state to South Carolina.”  Democrats are criticizing the tactic and vowing to block such actions, according to Politico.com.  To read more, go to www.politico.com.

Inspections of I-9 Forms Are Increasing Nationwide

By Glen Krebs

Several lawyers have indicated that clients have received I-9 audit letters.  It is  estimated that at least 500 employers nationwide will be receiving Notices of Inspection (NOIs) in the coming weeks.  The inspections could lead to civil penalties and even criminal indictments.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI.  We have previously provided instructions for dealing with Immigration audits.  If you would like additional information, please feel free to contact Glen Krebs at gkrebs@wyattfirm.com or 859-288-7409.

We are also happy to assist you to conduct an internal I-9 audit and develop a basic immigration compliance plan.

NLRB Delegates Certain Powers in Anticipation That the Board Could Be Down to Two Members Soon

By Edwin S. Hopson

Facing the prospect that the five-member National Labor Relations Board could be down to two Members on January 1, 2012, with the expiration of Member Becker’s recess appointment on December 31, 2011, on November 9, 2011, the Board announced that it was delegating to the Board’s General Counsel “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.”  

After the Supreme Court’s decision in the New Process Steel case last year, it is settled law that the Board cannot delegate its decision making authority in unfair labor practice and representation cases to a Board Member panel of less than three Members.  Thus, there was no mention of any such delegation in the Board’s announcement.

Whether any of the delegations mentioned in the Board’s order will be challenged as happened in New Process Steel, will remain to be seen.

NLRB to Hold Meeting on November 30 to Consider Implementing Only a Portion of its Proposed Rule Speeding Up the Election Process

By Edwin S. Hopson

On November 18, 2011, the National Labor Relations Board announced in a press release that it has scheduled a November 30, 2011, vote on whether to adopt a small number of the amendments to its election procedures that the Board proposed earlier this year.

In mid-June, 2011, the Board issued a Notice of Proposed Rulemaking in which it proposed amending its rules to speed up the representation process and reduce litigation of various issues.

According to the Board’s press release, the NLRB received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at its two-day hearing in July 2011.

In light of the fact that the Board may be reduced to two Members after December 31, 2011, when Member Becker’s recess appointment expires, Board ChairmanPearce has indicated that the final rule will be limited to several provisions designed to reduce unnecessary litigation. This will also, perhaps reduce or eliminate anticipated litigation over the implementation of the new rules by management groups.

The meeting of the Board’s three members at NLRB headquarters in Washington,D.C. will be open to the public, but no public participation will be allowed.  Members Hayes and Becker will discuss and vote on a resolution whether to accept Chairman Pearce’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration, according to the Board’s press release.

Requests to attend the November 30 meeting should be sent to publicmeeting@nlrb.gov with the following text in the subject line: REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08. The press release states that the meeting will also be webcast with a link available through the agency’s website, www.nlrb.gov.

 

NLRB Member Hayes Accuses Colleagues of Misleading House Committee on New Election Rule

By Edwin S. Hopson

In an unusual move, Member Brian Hayes, the only Republican on the National Labor Relations Board, has written a letter to the Chairman of the U.S. House Education and Workforce Committee criticizing the other two Democratic Members of the Board for scheduling a meeting on November 30, 2011, at which they will make a decision on the Board’s proposed new rule aimed at speeding the union representation election process.  Hayes claims that the meeting will violate Board rules and practice involving its deliberative process.  He also asserts that he has been left out of that process and has, for instance, not seen any summary of the some 65,000 comments received by the NLRB concerning the proposed new rule, nor been given adequate time to prepare a dissent regarding the new rule.  

Hayes also seems to accuse the majority on the Board of misleading the House Committee in a letter dated November 10, 2011, responding to a request from the Committee for a status report and timeline on the proposed new election rule. 

In a letter dated October 27, 2011, Committee Chairman John Kline had requested a number of items of information from the Board in order “[t]o better understand the process and timeline for the issuance of the new rule….”  In its November 10 response, the Board advised the Committee:

“The following is a timeline of past and anticipated actions on the rulemaking:

June 22, 2011 – Publication of proposed rule.

July 18-19, 2011 – Public meeting on proposed rule. 66 witnesses testified before the Board.

August 22, 2011 – Deadline for filing initial public comments.

Sept. 6, 2011 – Deadline for filing reply comments.

Unknown – Board vote on how to proceed on final rule.

Unknown – Draft of final rule circulated to Board Members.

Unknown – Publication of final rule in Federal Register.”

Hayes in his November 18 correspondence to the Committee states:

“The central fact omitted from the November 10 response letter is that there is a timeline for anticipated actions.  My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  Indeed, I was advised of this fact by the Board’s Chairman on the very day that the response letter was forwarded to your office.” [Emphasis in the original].

On November 18, 2011, Board Chairman Pearce announced the scheduling of the November 30 meeting at which a decision on the new rule will be made.  See prior post below dated November 18, 2011.

Also on November 18, 2011, Committee Chairman Kline wrote another letter to Board Chairman Pearce seeking information not supplied in the NLRB’s November 10 response and also stating:

“Needless to say, Member Hayes’ assertions are extremely troubling, as they would suggest you deliberately withheld information from the committee, if not knowingly provided the committee with misleading information.”

Kline requested a response from Board Chairman Pearce by November 29, 2011.

 The letters in question may be found on the Committee’s website at:

http://edworkforce.house.gov/News/DocumentSingle.aspx?DocumentID=269877

NLRB Republican Member Hayes Threatens Resignation Over Proposed Election Rule

By Edwin S. Hopson

In an article by Holly Rosenkrantz on the Bloomberg Businessweek website dated November 23, 2011, it reported that National Labor Relations Board Member Brian Hayes, the only Republican on the Board, is threatening to resign rather than allow a vote now scheduled for November 30, 2011, on a controversial new rule aimed at speeding up union representation elections. 

According to the article, NLRB Chairman Mark Pearce is quoted in a November 22 letter to Hayes as stating, “[y]ou indicated that, if the board proceeded with consideration of the matter, you would consider resigning your position.”

There are currently only three members on the five-member NLRB, and under last year’s Supreme Court decision in New Process Steel v. NLRB, if the Board is reduced to fewer than three members, it cannot continue to issue decisions. See posts below dated November 21 and 18.

NLRB Chairman Releases Draft Resolution on Election Changes to be Voted on on November 30

By Edwin S. Hopson

On November 29, 2011, NLRB Chairman Mark Pearce made public a draft resolution to be voted upon by the Board at its November 30, 2011, public meeting. Pearce also made available an explanation of the resolution. See http://www.nlrb.gov/news/board-chairman-releases-details-election-proposal-wednesday-vote.

According to Pearce’s explanation of resolution, the draft resolution contains six procedural amendments which are aimed at reducing litigation before the Board in union representation election cases. They are:

●Provides the hearing officer at the pre-election hearing with the authority to limit the hearing to the fundamental question of whether there is a question concerning representation, thereby eliminating other issues such as whether a particular employee is a supervisor who should be excluded from the unit.

●Requires that permission by the hearing officer must be obtained in order to file post-hearing briefs with the Regional Director.

●Eliminates the right of either party to petition the Board to review any pre-election ruling by the Regional Director.

●Removes language regarding allowing 25 days from the Regional Director’s decision and direction of election to the scheduling of the election (since the right to petition for review has been eliminated).

●Restricts the circumstances under which the parties may seek permission to appeal to the Board prior to the election—that is “[s]uch permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review.”

●Makes discretionary the Board’s review of a Regional Director’s or Administrative Law Judge’s disposition of post-election disputes after both stipulated and directed elections.

Additionally, a portion of existing regulations would be eliminated and replaced with new sections consistent with the proposed changes. The remainder of the proposed changes to election rules remain under consideration.

The Chairman also stated: “The text of the final rule must be finalized, circulated among the members of the Board, and approved by a majority of the Board. No final rule can issue without such approval of the rule itself.”

There is no indication as to what the timing of that would be.

NLRB’s Inspector General May Have Opened an Investigation as to Whether Member Hayes Received an Offer Tied to a Resignation

By Edwin S. Hopson

On December 5, 2011, Holly Rosenkrantz of www.Bloomberg.com reported that the Inspector General of the National Labor Relations Board may have opened an investigation into whether Republican Member, Brian Hayes, received offers or enticements to resign his position on the five-member Board which would cripple the agency by reducing it to only two Members that would have no authority to issue decisions. 

There had been speculation that Hayes might resign in order to defeat an attempt by the two Democratic Members, Chairman Mark Pearce and Member Craig Becker, to implement a rule speeding up the union representation election process.  At the Board’s November 30 hearing on that proposed rule, Hayes indicated he was not going to resign.  At the same time, Hayes voted against the proposed rule.

NLRB’s Case Against Boeing Is Over

By Edwin S. Hopson

On December 9, 2011, NLRB Acting General Counsel Lafe Solomon in a press release announced that the withdrawal of a charge by the Machinists union against the Boeing Co. over Boeing’s planned opening of a plant in South Carolina to build its large new commercial airliner, has been approved bringing the matter to an end.  The Machinist Union had requested withdrawal of its unfair labor practice charge.  This came after Boeing and the union agreed upon a new four-year collective bargaining agreement earlier this week. Based on the union’s request, the NLRB administrative law judge presiding over the case dismissed the complaint and remanded the case to the NLRB’s Seattle regional office.  NLRB Regional Director Richard Ahearn then approved the union’s written request to withdraw the charge on December 9, 2011, and the case is now closed.

OFCCP Announces Proposed Revisions to Section 503 Regs Regarding Persons with a Disability

By Edwin S. Hopson

On December 8, 2011, the U.S. Department of Labor announced that the Office of Federal Contract Compliance Programs (OFCCP) is proposing a new rule that would require federal contractors and subcontractors to set a hiring goal of having 7% of their workforce be people with disabilities, among other requirements. OFCCP is inviting public comment on its proposal.

OFCCP’s proposed rule would substantially increase the affirmative action requirements contained in Section 503 of the Rehabilitation Act of 1973 which obligates federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.  For many years, Section 503 has only required that federal contractors make a “good faith effort” to recruit and hire persons with a disability.

The proposed regulations also make significant, substantive changes to a contractor’s responsibilities and the process through which applicants are invited to voluntarily self-identify as individuals with disabilities protected by section 503 during the hiring process.  It also adds a new requirement that contractors must annually survey employees in order to provide an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily and anonymously self-identify. 

With these changes, the contractor’s affirmative action programs would be required to contain the following elements: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment free workplace for individuals with disabilities; (6) external dissemination of the contractor’s affirmative action policy, as well as outreach and recruitment efforts; (7) internal dissemination of the contractor’s affirmative action policy to all of its employees; (8) development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training regarding the implementation of the affirmative action program for all personnel involved in employment related activities, such as the conduct of recruitment, screening, selection, and discipline of employees.

The proposed revisions can be found at: 

 http://www.regulations.gov/#!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR;rpp=10;po=0;D=OFCCP-2010-0001

President Announces Intent to Nominate Two Persons to the NLRB

By Edwin S. Hopson

On December 15, 2011, the National Labor Relations Board announced that President Obama has stated his intent to nominate Sharon Block and Richard Griffin as members of the National Labor Relations Board. Currently there are two Members (at the five-member board), two Democrats (one of whom, Craig Becker, is a recess appointment that expires at the end of the year) and one Republican.

Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. During the period 2006 through 2009, Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy.  Prior to that, she had served at the National Labor Relations Board as senior attorney to Chairman Robert Battista(a Republican) from 2003 to 2006 and as an attorney in the NLRB’s Appellate Court Branch from 1996 to 2003. From 1994 to 1996, Block was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at the management law firm of Steptoe & Johnson. Block received a B.A. from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Griffin is the General Counsel of the for International Union of Operating Engineers. He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Griffin holds a B.A. from Yale Universityand earned a J.D. from Northeastern University School of Law.

Based on the current environment in the Senate, it is doubtful that either of these nominations will be taken up soon. 

It appears the Board will be reduced to two Members at the end of the year and cease issuing decisions until it can gain at least a third Member.

President Obama Withdraws Craig Becker’s Nomination to the NLRB

By Edwin S. Hopson

According to various news and blog reports, President Obama has officially withdrawn his nomination of Craig Becker to be a Member of the National Labor Relations Board.  Becker has been serving a recess appointment which will expire at the end of the year.  Republicans in the Senate last year defeated an effort to confirm Becker to a full term on the Board. 

U.S. Senator Orrin Hatch inn a press release dated December 15, 2011, praised the President’s action and urged him not to make recess appointments of the two persons just nominated this week to the Board.

NLRB Issues Final Changes to its Union Representation Election Rules

By Edwin S. Hopson

On December 21, 2011, the NLRB announced that it was issuing its new amendments to the Board’s representation rules meant to speed up and streamline the union representation election process.  It will become effective April 30, 2012.  In summary, the changes as set out in the Board’s press release are:

• Amend § 102.64 to expressly construe Section 9(c) of the Act and to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.
• Amend § 102.66(a) and eliminate § 101.20(c) (along with all of Part 101, Subpart C) to ensure that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.
• Amend § 102.66(d) to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.
• Amend §§ 102.67 and 102.69 to eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election, and instead to defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
• Eliminate the recommendation in § 101.21(d) (as stated, along with all of Part 101, Subpart C) that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review.
• Amend § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.
• Amend §§ 102.62(b) and 102.69 to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of regional directors’ resolution of such disputes is discretionary. 
• Eliminate part 101, subpart C of Board regulations, which is redundant.
• The remainder of the amendments merely conform other sections of the Board’s Rules and Regulations to the eight amendments described above.

 Member Hayes on November 30, 2011 dissented to the issuance of the amendments to the rules.  Thus, only two Members of the normally Five-Member Board have made changes of substance in its regulations that in one instance effectively overrules prior Board precedent.

For more details see:  http://www.nlrb.gov/news/board-adopts-amendments-election-case-procedures

Chamber of Commerce Files Suit Challenging the NLRB’s New Rules on Union Elections

By Edwin S. Hopson

On December 20, 2011, the U.S. Chamber of Commerce filed a suit in the U.S. District Court for the District of Columbia challenging the NLRB’s amendments to its regulations governing union representation elections and seeking injunctive relief to stop the Board’s enforcement of the new rules.

The suit claims that the amendments violate the Administrative Procedure Act, the Regulatory Flexibility Act and the National Labor Relations Act, as well as the First and Fifth Amendments to the U.S. Constitution. The Chamber also alleges that:

 “The Board rushed through the rulemaking process because it was committed to put the Rule in place before the end of Member Becker’s recess appointment, following which there would be no majority support among Board members in favor of the Resolution or the Final Rule and the Board itself would be reduced to two members, rendering it incapable of further action.”

As to many of its claims and bases for relief, the Chamber relies upon statements made by Republican Member of the Board, Brian Hayes, in his dissent to the proposed rule making.

The following is a link to the lawsuit: 

http://www.chamberlitigation.com/sites/default/files/cases/files/2011/Chamber%20of%20Commerce,%20et%20al.%20v.%20NLRB%20(Ambush%20Election%20Rule)%20Complaint).pdf

NLRB Postpones Effective Date of Notice Posting Rule to April 30, 2012

By Edwin S. Hopson

On December 23, 2011, the National Labor Relations Board announced that it had agreed to postpone the effective date of the employee rights notice-posting rule at the request of the federal judge in Washington, D. C. who is hearing one of the legal challenges to the notice posting rule. According to the Board’s press release, the NLRB’s ruling states that “it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”

The new implementation date is set for April 30, 2012.

Labor Department Proposes to Eliminate Exemptions for In-Home Companionship Workers Not Directly Employed by a Family

By Edwin S. Hopson

The U.S. Department of Labor recently announced that it was filing a notice of proposed rule-making regarding its regulations pertaining to the exemption for companionship services and live-in domestic services.

Section 13(a)(15) of the Fair Labor Standards Act (FLSA) exempts from the minimum wage and overtime provisions domestic service employees who are employed “to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).” Section 13(b)(21) of the law also exempts from the overtime provision any employee employed “in domestic service in a household and who resides in such household.”

These FLSA exemptions, enacted in 1974, were later complimented by Labor Department-promulgated regulations in 1975.  Those regulations have not been amended or changed since 1975.  Since that time, the Department notes that there have been “significant changes in the home health care industry” and “workers who today provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were promulgated.” It also noted that the “number of workers providing these services has also greatly increased, and a significant number of these workers are being excluded from the minimum wage and overtime protections of the FLSA under the companionship services exemption.” Therefore, the Labor Department decided to reduce the scope of the exemption by amending its regulations to revise the definitions of “domestic service employment” and “companionship services.” The Department also proposed to clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services.

Additionally, the Department proposed to amend the record-keeping requirements for live-in domestic workers. Finally, the Department proposed to amend the regulation pertaining to employment by a third party of companions and live-in domestic workers.

These changes would continue to allow the individual, family, or household directly employing the worker’s services to apply the companionship and live-in exemptions but would deny all third party employers of such workers the use of the exemptions.

Comments on the proposed changes to the regulations must be received by the Labor Department on or before February 27, 2012.

 The notice of proposed rule-making may be viewed at:

 http://www.gpo.gov/fdsys/pkg/FR-2011-12-27/html/2011-32657.htm