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Court Bars Notice to Workers on Right to Unionize

May 7, 2013 by Leave a Comment

A federal appeals court on Tuesday struck down a National Labor Relations Board rule requiring most private sector employers to post a notice informing employees of their right to unionize.

Ever since the labor board proposed the rule in December 2010, business groups have asserted that the move exceeded the board’s authority and was an improper imposition on nearly six million employers, most of them small businesses.

In its decision, the United States Court of Appeals for the District of Columbia Circuit concluded that the N.L.R.B.’s rule violated a federal law that bars the board from punishing an employer for expressing its views so long as those statements do not constitute threats of retaliation or force.

The labor board had originally said that an employer’s failure to post the notice would be considered an unfair labor practice, resulting in penalties, but the circuit court said the board would be acting illegally to punish an employer for expressing a statement or in this case, for failing to post a statement under orders by the labor board.

The labor board’s rule told employers to post a notice, informing workers of their right to form or join a union, to strike, to bargain collectively and to act together to improve working conditions.

The federal circuit court issued an injunction in April 2012, suspending the labor board’s rule, after two lower courts differed on whether the board had overstepped its powers.

The circuit court cited several Supreme Court rulings to reach its decision that employers have a right to disseminate views as well as a right not to disseminate views. The court relied on First Amendment rulings that prohibit the government from telling people what they must say, like telling schoolchildren they must recite the Pledge of Allegiance.

Many businesses asserted that the labor board’s proposed poster was one-sided and pro-union, although the board said the poster was neutral.

The National Association of Manufacturers applauded the court’s ruling, calling it “an important victory in the fight against an activist N.L.R.B. and its aggressive agenda.”

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate,” the manufacturers’ association said. “The ultimate result of the N.L.R.B.’s intrusion would be to create hostile work environments where none exist.”

The A.F.L.-C.I.O. attacked the ruling. “The Republican judges of the D.C. Circuit continue to wreak havoc on workers’ rights,” its president, Richard L. Trumka, said. The labor federation, like the Obama administration, was already upset with the circuit court for ruling in January that President Obama’s recess appointments to the labor board were illegal and that the board thus did not have a quorum needed to operate. The Obama administration has appealed that decision to the Supreme Court.

Mr. Trumka questioned the sweep of Tuesday’s ruling, saying: “In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas.”

In holding that the labor board could not punish employers for failing to post the notice, the court decided to vacate the rule altogether, saying that the labor board would not have wanted to propose a merely voluntary rule that it could not enforce.

In a statement, the labor board said it was reviewing Tuesday’s ruling and would “make a decision on further proceedings at the appropriate time.” It noted that the Fourth Circuit Court of Appeals was also reviewing the legality of the poster rule.

Article source: http://www.nytimes.com/2013/05/08/business/court-bars-notice-to-workers-on-right-to-unionize.html?partner=rss&emc=rss

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Labor Union Agrees to Stop Picketing at Walmart

February 1, 2013 by Leave a Comment

The union, the United Food and Commercial Workers, made the pledge this week to avert likely charges from regulators that it engaged in weeks of illegal picketing at Walmart stores last fall.

The National Labor Relations Board said Thursday that it would hold in abeyance any charges against the union and its affiliate, OUR Walmart, for six months to make sure they fulfilled their commitments.

Wal-Mart Stores had asked the labor board to determine if the union and OUR Walmart had violated a provision of federal law that prohibits worker groups from engaging in more than 30 days of picketing that is aimed at gaining union recognition.

Labor board officials had been considering whether to bring such charges against the union and OUR Walmart, a group of several thousand Walmart employees closely affiliated with the union. But on Tuesday, the union, in an apparent effort to forestall any charges, sent the N.L.R.B. a letter saying that OUR Walmart “has no intent to have Wal-Mart recognize or bargain with it as the representative of Wal-Mart employees.”

The union even told the labor board that both it and OUR Walmart would not picket for at least 60 days at Walmart stores, “including confrontational conduct that is the functional equivalent of picketing.”

Wal-Mart Stores applauded Thursday’s developments.

“Today, the National Labor Relations Board and the U.F.C.W. reached a settlement agreement that will bring the union’s unlawful tactics and disruptions toward Wal-Mart, our associates and our customers to an end,” said David Tovar, a company spokesman. “Our associates can now move forward knowing that the U.F.C.W. must stop its illegal and disruptive activities.”

As OUR Walmart and the union coordinated on-and-off demonstrations last October and November at Walmart stores around the country, culminating in a nationwide protest on Black Friday, Wal-Mart Stores asserted that the protests were clear violations of the law barring picketing for more than 30 days when a union is seeking recognition.

At the time, some OUR Walmart members insisted that the picketing was aimed merely at seeking higher wages and ending what they said was retaliation against employees who spoke out in favor of better wages and working conditions.

But other OUR Walmart members and union officials said their long-term goal was very much to unionize store workers. Such statements seemed to buttress the company’s claims that the demonstrations were indeed illegally protracted picketing that aimed to win union recognition.

In announcing that it would not, at least for now, bring charges against the union, the labor board said that the U.F.C.W. had disavowed any objective of seeking union recognition for Walmart workers and had promised to publicly state that commitment on its Web site and that of OUR Walmart and in mailings to the thousands of its members nationwide.

The labor board also noted another union concession — that if one of its regional directors brings charges against the union for violating the provision against illegal picketing, the union will not contest any N.L.R.B. effort to obtain a temporary injunction barring picketing.

Notwithstanding their promise not to seek to unionize Walmart workers and not to picket stores for at least 60 days, the union and OUR Walmart claimed victory.

The groups said they would still be able to picket after 60 days elapsed to call for improved wages and benefits.

In a statement, OUR Walmart said it “will continue to inform its members and supporters that the organization’s purpose is to help Wal-Mart employees as individuals or groups in their dealings with Wal-Mart over labor rights and standards.”

One official with the group said the labor board’s memo would in no way disrupt its plans to hold protests, strikes and rallies over the next 60 days and beyond, although protesters would be mindful not to walk in circles in front of Walmart stores.

In a statement, the union said, “Wal-Mart workers and their supporters will continue their call for change at Wal-Mart and an end to its attempts to silence workers who speak out for better jobs.”

A union spokeswoman said it might someday seek to unionize the stores, but would do so while observing the law that bars picketing for more than 30 days.

Labor board officials said that the complaint that Wal-Mart Stores had filed against union would be “dismissed in six months as long as the union complies with the commitments it has made.”

Article source: http://www.nytimes.com/2013/02/01/business/labor-union-agrees-to-stop-picketing-walmart.html?partner=rss&emc=rss

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Republican Threatens to Quit Labor Board

November 23, 2011 by Leave a Comment

The labor board’s sole Republican member, Brian E. Hayes, has threatened to resign to deny the N.L.R.B. the three-person quorum it needs to make any decisions, according to board officials. Mr. Hayes has made his threat expressly to block the Democratic-dominated board from adopting new rules to speed up unionization elections, which the board’s other current members, both Democrats, intend to pass Nov. 30.

But even if Mr. Hayes does not resign, the appointment of one of the Democrats expires at the end of the year. With Senate Republicans vowing to block any replacement nominees, the board will have only two of the five members it is supposed to have — not enough to issue any decisions or rules. The board’s role is to enforce the National Labor Relations Act, a 76-year-old law that sets the rules for unionization efforts and collective bargaining in the private sector.

Unions, backed by Democrats, have long sought the proposed election rules, which they say would limit the ability of employers to use certain tactics — like challenging who is eligible to vote — to slow the election process.

Corporations, supported largely by Republicans, have denounced the proposed changes, which they say will deny businesses enough time to make their case against unionization.

“The Obama N.L.R.B. is determined to impose a flawed rule that will cripple American workers’ free choice,” said John Kline, the Minnesota Republican who is chairman of the House Education and the Workforce Committee. “It is disturbingly clear that the board’s only concern is advancing an extreme agenda, regardless of the damage it causes our workplaces.”

The board, whose members are appointed by the president, has typically been dominated by one party or another, depending on who is in the White House. But in recent years, the partisanship has gotten nastier. For 26 months beginning in 2008, under Presidents Bush and Obama, the board did not have enough members to take action because senators of both parties blocked the other’s nominees.

This year, the partisanship leapt exponentially after the board’s acting general counsel filed a complaint against Boeing last April, asserting that the manufacturer had illegally retaliated against union members in the Puget Sound area by building an aircraft production line in South Carolina instead of Washington State. The complaint asked that Boeing’s production line be transferred to Washington.

Senator Lindsey Graham, Republican of South Carolina, was so angry that he said he would most likely block any future Obama nomination to the N.L.R.B., a view echoed by many Republicans.

“I’m going to create a high bar for any future nominees,” Mr. Graham said last August. “Given its recent activity, inoperable is progress.”

Indeed, if the board is denied a quorum, it will not be able to make an official ruling that could order Boeing to close its South Carolina production line. Similarly, without a quorum, the board could not rule on a long-awaited case on whether graduate teaching assistants at private universities have the right to unionize.

Charles B. Craver, a labor law professor at George Washington University, said the angry rhetoric was “as bad as it’s been in terms of partisanship in the 40 years I’ve been in the labor field.”

The N.L.R.B. announced last Friday that it would hold a public session on Nov. 30 to vote on the rules for speedier elections. The regulations, first announced in June, aim to ensure that unionization elections are held within 21 days of workers petitioning to have a union, down from what the agency says is a median of 38 days.

The board also said that one reason it had scheduled the vote for Nov. 30 was out of concern that it would no longer have a quorum at the end of the year once the recess appointment of a Democratic member, Craig Becker, expired.

Article source: http://feeds.nytimes.com/click.phdo?i=a164c289bf69ec4643257b568c928438

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Labor Agency to Require Posting Unionization Rights

August 25, 2011 by Leave a Comment

The National Labor Relations Board issued new regulations on Thursday that require companies to post notices on their bulletin boards that inform employees about their rights to unionize under federal law.

Noting that many workers are unaware of these rights, the board said the new regulations aim to make it easier for workers to exercise their rights under the National Labor Relations Act, which sets rules for unionization efforts. The board said this new notice requirement also seeks to promote compliance by employers and labor unions.

The labor board originally proposed the regulations last November, and the proposal has faced widespread criticism from the business community, which has said the move was part of the board’s pro-labor tilt under President Obama.

When the board issued its original proposal, Randel K. Johnson, senior vice president for labor policy at the United States Chamber of Commerce, said: “These actions are consistent with a general ramp-up of enforcement against employers we are seeing across the board.”

Under the new rule, employers that customarily post notices to employees regarding personnel rules on an Internet or Intranet site will be required to post this new notice on those sites

The board issued the rule after receiving more than 6,500 comments from the public. The board noted that in response to those comments, it had modified its original proposal so that employers would not be required to distribute the notice via e-mail, voice mail or text messaging.

This is the first time since Congress passed the labor relations act in 1935 that the board would broadly require private-sector employers to post notices about employees’ rights under the act. Agricultural, rail and airline employers would not be covered by the new rule.

The United States Labor Department has already begun requiring federal contractors to post similar notices about employees’ right to unionize.

“Every working person in America deserves to know his or her rights,” Richard L. Trumka, the A.F.L.-C.I.O.’s president, said when the board originally proposed the regulations. “This rule ensures that workers’ rights are effectively communicated in the workplace. It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.”

The labor board has come under heavy attack from Republicans and the business community in recent months. The most criticized move was the decision of the board’s general counsel to accuse Boeing of illegally retaliating against unionized workers in Washington State by deciding to build a new $750 million aircraft assembly plant in South Carolina.

The labor board has also come under fire for proposing regulations to speed up unionization elections, a proposal that business groups say will deny employers the ability to adequately explain to their workers the disadvantages of joining a union. Labor unions have hailed the proposal, saying it will reduce undue delays and interference by employers.

The board said that unionized and nonunion employers would have to post the new notice on rights to unionize because these rights apply to workers at union and nonunion workplaces and because private-sector employers are subject to the labor board’s jurisdiction.

Article source: http://feeds.nytimes.com/click.phdo?i=0678873d32c6f2695b5d17a4c0e5cd2c

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Boeing Labor Dispute Is Making New Factory a Political Football

July 1, 2011 by Leave a Comment

That is, unless the federal government takes it all away.

In a case that has enraged South Carolinians and become a cause célèbre among Republican lawmakers and presidential hopefuls, the National Labor Relations Board has accused Boeing of illegally setting up shop in South Carolina because of past strikes by the unionized workers at its main manufacturing base in the Seattle area. The board is asking a judge to order Boeing to move the Dreamliner production — and the associated jobs — to Washington State.

Companies can generally move a plant anywhere they choose, although federal law bars them from doing so if a move involves punishing employees for exercising their federally protected right to unionize or strike. On several occasions, Boeing executives mentioned past strikes as a reason for the move to South Carolina — most directly, when one told the Seattle Times that the “overriding factor” in the decision was “we can’t afford to have a work stoppage every three years.”

The unusual legal action, filed in April at the behest of Boeing’s principal union, has grown into a political conflagration, fanned by deep resentments between North and South, Democrats and Republicans, union and nonunion workers, and fans and foes of Big Government.

Republican presidential candidates have denounced the case as a symbol of President Obama’s liberal agenda because he appointed the labor board’s top officials. This week, Mitt Romney called the labor board’s case a job killer. Newt Gingrich has proposed terminating the board’s funding, and Tim Pawlenty said the case evokes “the Soviet Union circa 1970s.”

At a time of great economic anxiety, the case raises questions about the federal government’s role in promoting — or impeding — corporate investment and job creation.

Facing so much heat, Mr. Obama said on Wednesday that he did not want to discuss details of the case because the N.L.R.B. was an independent agency.

However, “as a general proposition, companies need to have the freedom to relocate,” he said. “We can’t afford to have labor and management fighting all the time, at a time when we’re competing against Germany and China and other countries that want to sell goods all around the world.”

Business and government leaders in the South argue that the labor board is undermining Boeing’s competitive advantage, and they are particularly incensed that officials seem to be favoring unionized workers and plants.

“This is a huge issue because economic development in the South has really been accelerated by the growth of nonunion plants,” said Merle Black, a political science professor at Emory University. “This case directly threatens the Southern model of economic development.”

For South Carolina, the Boeing plant means far more than just the thousands of jobs it will create directly and indirectly. Boeing is a marquee company, and state leaders hope its presence will help erase South Carolina’s lingering image as an industrial backwater.

“Boeing was a dream come true for South Carolina,” said Gov. Nikki R. Haley in an interview. “They came in and brought the hope of the American dream to this state to create real, good-quality jobs.”

Those kinds of jobs are hard to come by in the Charleston area.

“Everybody I talk to here is excited about this plant,” said one worker, Wayne Gravot. On a recent day at the plant, which is the size of 12 football fields, he and five co-workers were practicing drilling through carbon fiber — a lightweight composite material, as hard as metal, used for much of the Dreamliner’s body.

“It’s a good job, a secure job,” said Mr. Gravot, 45, an Air Force veteran and father of two. Not long ago, he was laid off from a medical devices company and he does not want to end up unemployed again.

The outcome of the case may not be certain for years, as it winds through N.L.R.B. proceedings and likely court appeals. If Boeing loses, it could be ordered to move its three-a-month Dreamliner assembly line from South Carolina to Washington State.

As Ms. Haley and South Carolina’s members of Congress see it, federal bureaucrats have no right to snatch away the state’s prize or tell a global company where to locate a factory.

Article source: http://feeds.nytimes.com/click.phdo?i=e0d8bc584f7ed6a8ce12bba5f34b2efc

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