By Pamela Wolf, J.D.
Congressional disapproval of the National Labor Relations Board’s representation case procedures rule—the so-called “quickie election” rule—is escalating. On Wednesday, March 4, using the Congressional Review Act, the Senate passed its joint resolution of disapproval, S.J. Res. 8, by a vote of 53 to 46. Meanwhile, in the House, the House Education and the Workforce Committee’s Subcommittee on Health, Employment, Labor, and Pensions held a hearing on its counterpart resolution of disapproval, H.J. Res. 29. The testimony of the panelists at the hearing revealed a sharp divide as to whether the rule unfairly tips the scales against employers and for unions, or finally levels the playing field for employees who want to get to an up-down vote on union representation.
At the hearing on “H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation case procedures,” Bradley Byrne (R-Ala.) didn’t mince words in his opening statement, saying that “for nearly four years, the Obama National Labor Relations Board has sought to radically alter long-standing policies governing union elections, and as the Board pursued this misguided effort, House Republicans, led by this committee, have consistently fought to defend the rights of America’s workers and job creators.”
Pro-union, anti-employer action. According to Byrne, the modifications made by the Board are designed to advance union organizing: “These are by no means modest changes and they go far beyond simply ‘modernizing’ the election process. In truth, the Board’s real goal is to dramatically tilt the outcome of elections in favor of union leaders by ambushing employers and workers without allowing them to fully understand their decision. The American people are on the losing end of the Board’s extreme culture of union favoritism.”
Byrne’s sentiments were echoed by G. Roger King, Labor and Employment Counsel for the Retail Industry Leaders Association (RILA), Of Counsel with the McGinnis & Yaeger Law Firm, and Senior Labor and Employment Counsel to the Human Resource Policy Association. From his testimony, it was clear that King, on behalf of RILA, saw the new rule as both pro-union and anti-employer, among other things. He told the subcommittee that RILA fully supports the joint resolution and offered several key points about the new election rule. In his testimony, King expanded on the following objections to the new rule, presented in simplified form below:
• It is fundamentally unfair to employees and employers and is an unprecedented partisan policy initiative favoring organized labor. A union can campaign for months, or even years, file a petition with the NLRB at any time it chooses (generally when it reaches a certain level of support), carve out or gerrymander who gets to vote (including micro or fragmented voting units), and have an election as soon as 11 to 14 calendar days after it the petition is filed.
• It is a legal and procedural ‘landmine’ for employers and violates their due process rights.
• It significantly curtails the free speech rights of other employees and employers.
• It is inconsistent with the legislative history of the NLRA and violates the appropriate hearing requirement of the Act.
• It is an unwarranted intrusion into employee privacy rights—employers will be required to furnish, if available, personal email addresses, personal cell phone numbers, and personal home telephone numbers of eligible voters in Board-conducted elections.
• It will further erode the Board’s credibility as a neutral arbiter of labor relation issues in the workplace.
• It is an irresponsible rejection of Board Members’ responsibility and accountability; the new rule removes those officials who were nominated by the President and confirmed by the Senate from making important election-related decisions and places that decision-making in the hands of individuals who have virtually no public or Congressional accountability.
• It presents a dangerous precedent for future Boards; the Board’s “extraordinary policy bias in favor of unions” reflected in the new rule only invites future Boards to respond in kind.
Leveling the playing field. Brenda Crawford, a registered nurse for 27 years, saw the NLRB’s new election rule in a very different way. She has worked at Universal Health Systems, Inc. in Murrieta, California, for the last 21 years. She shared some of her experiences while participating in an organizing drive in 2013.
A majority of the RNs had signed cards supporting the United Nurses Association of California/Union of Health Care Professionals and the union filed an election petition. “All we wanted was to have a fair opportunity to vote on whether or not to form a union,” Crawford said. “However, it became clear to us that the NLRB’s election procedures were rife with opportunities for employers to create delay and uncertainty.”
“Under the NLRB’s current election procedures, employers have an unbalanced ability to demand when and how an election takes place,” Crawford observed. “In our case, the Company had the leverage of forcing a hearing on the small issue of charge nurses. To avoid the delay caused by litigating this small issue, the nurses were forced to give up the rights of those charge nurses. And that was not the only concession we had to make. The Union had to agree to the election date the Company wanted, again to avoid the need for a hearing. We had to agree to an election date that was a month and a half after the petition was filed, even though there were no longer any issues that needed to be decided for an election to take place earlier.
“The NLRB’s Final Rule will allow the parties to approach elections on a more even-footing. The new rules give Regional Directors the discretion to defer questions of individual eligibility and inclusion for small groups of workers until after the election. In our case, that means the charge nurses could have voted challenged ballots, and their status would have been resolved only if it would have affected the outcome of the election. This removes the Company’s leverage to force a pre-election hearing to unnecessarily litigate these types of small issues, and would offer greater protection for the rights of workers.”
The final rule would also improve the union’s ability to communicate with workers in a proposed bargaining unit, according to Crawford. She said that from before the election petition was even filed through the date of the election, her employer “ran a relentless anti-union campaign.” The employer communicated anti-union messages to nurses on every shift daily. Nurses were taken off patient care “constantly to attend anti-union meetings,” Crawford said. Moreover, her employer sent “anti-union propaganda emails to the nurses, and even sent anti-union text messages to the nurses’ personal cell phones on off-work time.” The employer’s anti-union campaign was very stressful for the RNs, whose main concern was patient care, Crawford explained. That stress was one of the main reasons why the organizing committee decided to concede the charge nurses in an effort to conduct an election as soon as possible.
Crawford also pointed out that the union “struggled to get accurate contact information from the Company.” Because her employer was only required to provide home addresses, the union couldn’t communicate with the nurses in the same ways the employer did. Without knowing shift times or other job information for the nurses, who work 12-hour shifts, the union had difficulty knowing when the nurses would be home, or how to avoid bothering them when they had just finished a shift.
“The NLRB’s Final Rule expands the information the Union and organizing committee would receive regarding the workers in the unit,” Crawford noted. “Had we had this information, we would have had a better opportunity to communicate with our fellow nurses, and use the same means of communication that the Company was using.”
Earlier this month, President Obama released his budget proposal for fiscal year (FY) 2016 in which he is requesting $113,687,000 and 660 full-time equivalent (FTE) employees for the OFCCP. That request represents a $7,211,000 increase from the FY 2015 funding level of $106,476,000 – an increase of about a 7 percent. It also represents an additional 10 FTE employees, which the OFCCP states will be used to strengthen its pay discrimination enforcement efforts.
According to the OFCCP’s FY 2016 Congressional Budget Justification, the agency will, at the requested funding level, complete a total of 4,290 compliance evaluations in 2016, which includes 3,840 supply and service compliance evaluations and 450 construction contractor reviews. The FY 2016 target for total completed compliance evaluations is identical to that for FY 2015.
Shift in outreach strategy. The OFCCP will continue to shift its outreach strategy from being contractor-centric to worker-focused, which it claims will strengthen its enforcement capacity. Specifically, the agency seeks to increase the number of affected class members located and remedied in its enforcement cases. It aims to continue to implement a robust language access plan to effectively communicate with key populations, including immigrants and individuals with limited English proficiency. The agency intends to accomplish this goal by translating materials into various languages and providing materials that meet the accessibility requirements under Section 508 of the Rehabilitation Act. In addition, the OFCCP intends to utilize innovative tools and technologies to engage workers and communities through an enhanced agency website, social media and other communication strategies.
Priorities. The agency states that it has the following three key priorities:
- Supporting economic justice and opportunity and leveling the playing field for compliant employers, through robust enforcement programs that protect workers from discriminatory employment practices – with a particular focus on systemic pay discrimination and equal employment opportunity in the construction industry;
- Improving service delivery through data and technology, including updates to the agency’s enforcement database and technology platforms that will enhance data quality and integration and increase the agency’s ability to focus limited enforcement resources on more likely violators; among other things, the OFCCP will perform critical upgrades of its obsolete case management system with dedicated funding of $3,300,000 for the continued development of an improved enforcement case management database system; and
- Implementing its regulatory agenda, by finalizing proposed rules, operationalizing final regulations and fulfilling responsibilities set forth in executive orders and a Presidential Memorandum.
Regulatory agenda. The Department of Labor’s most recent Regulatory Agenda (Fall 2014) included the following items:
- On December 9, 2014, the OFCCP published in the Federal Register a final rule to implement President Obama’s Executive Order (EO) 13672 which amended the existing EO 11246 to add sexual orientation and gender identity to the list of categories of protected federal contractor employees (79 FR 72985-72995). This final rule is scheduled to take effect on April 8, 2015, and it will apply to federal contractors who hold contracts entered into or modified on or after that date.
- On January 30, 2015, the OFCCP published a Notice of Proposed Rulemaking (NPRM) to rescind its outdated regulations at 41 CFR Part 60-20 setting forth the agency’s Sex Discrimination Guidelines and to replace them with updated regulations (80 FR 5246–5279). The public has until March 31 to submit comments.
- The OFCCP anticipates a final rule on its Equal Pay Report proposal will be published in August 2015. A NPRM was published in the Federal Register on August 8, 2014 (79 FR 46562- 46606) with corrections published on August 20 (79 FR 49260-49261) that would require some covered federal contractors and subcontractors would be required to electronically submit an annual “Equal Pay Report” on employee compensation as a supplement to the annual EEO-1 Report. The OFCCP’s proposal would revise its regulations at 41 CFR Part 60-1, which set forth the reporting obligations of covered federal contractors and subcontractors under EO 11246. The original comment deadline on the NPRM was November 6, 2014, but a notice was published on November 5, 2014 extending the comment period to January 5, 2015 (79 FR 65613-65614).
- In September 2015, the agency intends to publish its final rule on regulations to prohibit pay secrecy. Pursuant to the provisions of a EO 13665 signed by the President in April 2014, the OFCCP published, on September 17, 2014, proposed regulations to prohibit federal contractors and subcontractors from discharging or otherwise discriminating against employees and applicants for talking about pay (79 FR 55712-55742). The comment period on this NPRM ended on December 16, 2014.
- Also in September 2015, the OFCCP plans to issue a NPRM to revise the regulations in 41 CFR Parts 60-1 and 60-4 implementing the affirmative action requirements of EO 11246 that are applicable to federal and federally assisted construction contractors.
In the wake of the Supreme Court’s decision in Harris v. Quinn, individual home health care providers in Washington who did not wish to join a union brought a class action suit challenging that state’s efforts. In Harris, the High Court held that that the imposition of involuntary “agency fee” payments to unions in lieu of equivalent union membership dues was a violation of the First Amendment rights of Illinois home health care providers who were deemed employees solely for the purpose of collective bargaining. The relationship between the state, the union, and the home health care providers Centeno v. Quigley resembled the statutory scheme assessed in Harris.
In Centano, the question presented was whether the Washington’s alteration in its practice in response to Harris—an opt-out as opposed to opt-in system for the imposition of the agency fee-type payments prescribed by the Washington statute—was as unconstitutional as the involuntary system struck down in Harris. The plaintiffs moved for summary judgment on their request for a declaratory judgment that Washington’s statutory scheme and the collective bargaining agreement (CBA) between the state and the union was unconstitutional, or in the alternative, a preliminary injunction preventing the state from making payroll deductions with respect to home health care providers who had not affirmatively indicated their wish to join the union.
“One-way intervention” rule. As a threshold argument, both the state and the union asserted that the “one-way intervention” rule embodied by the notice provision in FRCP 23(c)(2) precluded a judgment on the merits of a class action prior to class certification. The rule is intended to prevent putative class members from waiting to intervene until a favorable merits determination has taken place, thus preventing multiple opportunistic class actions and safeguarding judicial economy. This rule, if applicable, would prevent adjudication of the plaintiffs’ summary judgment claim but not the claim for a preliminary injunction.
Here, the court concluded that summary judgment on the plaintiffs’ request for declaratory relief would be a favorable adjudication on the merits of a central component of the claim for class-wide relief, and the one-way intervention rule applied. The summary judgment motion was premature prior to class certification and was denied.
Preliminary injunction. With respect to the plaintiffs’ request for a preliminary injunction, the court noted that “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” However, the defendants argued that the plaintiffs were not currently experiencing injury because the state had ceased making deductions from their pay and that the plaintiffs were not entitled to seek a preliminary injunction on behalf of the absent class under Ninth Circuit precedent. Finding that the defendants were correct, the court concluded that the plaintiffs were not presently suffering the personal injury that might justify a preliminary injunction.
Minnesota case. Homecare providers challenging the constitutionality of Minnesota’s Individual Providers of Direct Support Servicers Representation Act (IPDSSRA), saw their suit tossed out on motions to dismiss filed by the Minnesota Governor and the SEIU, the union certified as exclusive representative for homecare providers. Finding that the plaintiffs failed to state a claim of NLRA preemption, a federal district court in Minnesota ruled in Greene v. Minnesota Governor Mark Dayton, that the defendants were justified in their actions in implementing and enforcing the IPDSSRA.
Like the plaintiffs in Centano, the plaintiffs here challenged constitutionality of the IPDSSRA, which provides that homecare providers are state employees for purposes of Minnesota’s Public Employment Labor Relations Act (PELRA), but not other purposes. That is they were granted the right to union representation.
Under the PELRA, public employees have “the right by secret ballot to designate an exclusive representative to negotiate . . . the terms and conditions of employment with their employer.” Once a union is certified under PELRA, the public employer “has an obligation to meet and negotiate in good faith with the exclusive representative . . . regarding . . . the terms and conditions of employment.” If a union is certified under PELRA, the employees in the bargaining unit are not required to become members of the union.
NLRA preemption. On August 26, 2014, the SEIU was certified as the exclusive representative for homecare providers. After the plaintiffs failed in their initial attempt to have the election ballots impounded, they filed an amended complaint asserting three counts: (1) preemption under the NLRA; (2) tortious interference with employment; and (3) violation of the Contracts Clauses of the United States and Minnesota Constitutions.
Injunction decision. In denying the plaintiffs’ motion for preliminary injunctive relief, the court analyzed whether the NLRA preempts the IPDSSRA under both the Garmon and Machinist standard. Sections 7 and 8 of the NLRA only give rights to those classified as “employees” by the statute. Individuals employed “in the domestic service of any family or person at his home,” are excluded from the definition of “employee.” In Harris the Supreme Court referred to Illinois’ homecare providers as “personal assistants,” and reaffirmed that they are not covered by the NLRA. Because homecare providers are excluded from NLRA coverage through the domestic services exclusion, the court concluded that Garmon preemption does not apply. Under the Machinist standard, the court held that “there is no indication that Congress intended the area of domestic services to be free from all regulation.” Accordingly, the Greene court held that the plaintiffs were unlikely to succeed under the Machinist preemption standard.
By Joy P. Waltemath, J.D.
Ah, employee engagement. It’s that magic elixir touted by consultants as critical in order for employers to be able to execute on strategies for future growth. Employees who are deemed to be “engaged” exhibit traits variously defined as “Preach, Plan, and Pursue” (Quantum Workplace) or “Say, Stay and Strive” (Aon Hewitt). In essence, these traits are the same: Engaged employees speak positively about their workplaces (preach or say); they are strongly interested in staying with their employer (plan or stay); and they exert extra discretionary effort on their employer’s behalf (pursue or strive). Engaged employees are much desired, according to the popular narrative, because their discretionary efforts help businesses grow, innovate, and prosper.
Lack of commitment? So it wasn’t surprising when a city looked critically at a 51-year-old police lieutenant’s “commitment” to the job of police chief for which he had applied. But the city’s mistake, according to the Eighth Circuit in Hilde v. City of Eveleth, was evaluating his commitment solely on the basis of his age-based retirement eligibility. Because the court found the city denied him the job based on his age, it revived the lieutenant’s age discrimination lawsuit.
Retirement eligibility. Notably, the city did not deny that it considered the lieutenant’s retirement eligibility in making its decision to award the job to a candidate eight years younger, arguing that retirement eligibility was evidence of an employee’s lack of commitment to a job—a legitimate concern, the city said, given the importance of employee engagement. And generally, employment decisions motivated by factors other than age (such as retirement eligibility, salary, or seniority), are not age discrimination even when those factors correlate with age. But this is true, stressed the court, only if the factors other than age are wholly independent from age.
Age-based stereotyping. In this case, the court stated, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’” As a result, when the city assumed that the lieutenant was not committed to the police chief position because his age made him retirement-eligible, it engaged in prohibited age-stereotyping, the court explained. This prohibited stereotype—older employees are likely to be less committed to a job because they can retire at any time—figured in the city’s decision.
Erroneous assumption. Not only was it age-stereotyping, it might well have been wrong. There is at least some evidence in the engagement research that older workers are the most engaged, although obviously not every consultant breaks down its research by age. In 2013, example, Quantum Workplace reported that an analysis of engagement by age showed that baby boomers were the most engaged. Specifically, “employees 66 years old and older were the most engaged at 79.5 percent, followed by the younger boomers, ages 56 to 65, with 72.3 percent engaged. Following baby boomers, the youngest millennials, 25 years old and younger, were the next most engaged with 71 percent. The least engaged group of employees by age were the oldest millennials, 26 to 35 years old, of which 66.7 percent were engaged. A gap of nearly 13 percentage points existed between the least and most engaged age groups.”
City never even asked about his commitment. Back to the city and the police lieutenant’s commitment, or lack thereof: The city failed to provide any evidence that it doubted the lieutenant’s commitment to the job for any reason other than his age-based retirement eligibility. The three commissioners responsible for hiring and promoting city police employees admitted he had a great reputation in the force and that they held his continued service in the highest regard. And while the city argued that he should have convinced them he would not retire, the commissioners never even asked about his job commitment or his retirement plans. That meant to the court that the city had failed to meet its burden to articulate a nondiscriminatory (non-age-based) justification for its reliance on the employee’s retirement eligibility. As a result, the Eighth Circuit reversed summary judgment for the employer and remanded the case back to the district court.
Don’t apply any stereotype. According to Oxford Dictionaries, a stereotype is “a widely held but fixed and oversimplified image or idea of a particular type of person or thing.” One purpose of the discrimination laws in general is to avoid decision-making based on stereotypes. Assuming, without more, that every employee who is eligible to retire due to age lacks commitment to the job (or to a promotion for which he or she has applied) not only violates the age discrimination laws, but it runs counter to employee engagement research suggesting that older employees actually might be more engaged than younger. Relying on either “stereotype,” however, instead of viewing an individual’s actual attributes and qualities, is a mistake employers should not make.
If you were wondering what the European labor model might look like transplanted to the United States, Volkswagen Group AG has been painting the picture at its plant in Chattanooga, Tennessee.
On Monday, February 16, Volkswagen told employees at the plant that the American Council of Employees (ACE) had met the requirements under the company’s Community Organization Engagement (COE) policy for “Level 1” support, meaning that Ace members make up more than 15 percent of those on the current employee roster. Accordingly, the employee organization has earned the right to express its voice in the workplace through access to various employer groups. ACE is the apparent rival of the UAW, which in a high-profile battle a year ago lost its bid to organize the VW plant by a vote of 712-626. In the wake of the election loss, the UAW formed Local 42 with the goal of giving employees a voice in the workplace via the company’s German-style labor model.
VW labor model. The COE policy gives eligible organizations the opportunity to engage in constructive dialogue with Volkswagen and its employees. To be eligible for such activity, “an organization must exist for the primary purpose of representing employees and their interests to employers consistent with the National Labor Relations Act” and must also agree to comply with the policy. Volkswagen reserves its right under the policy to define and determine eligibility consistent with the NLRA.
However, as a Volkswagen spokesperson made clear to Employment Law Daily, the fact that any group has met the threshold requirements for engaging in dialogue with Volkswagen under the COE policy does not mean it is the exclusive bargaining representative of any group of employees for collective bargaining purposes.
So, to what opportunities for engagement is ACE now entitled? Consistent with Volkswagen’s Open Door and Solicitation policies, individual or groups of employees are already free to discuss and/or promote their interests /group in non-work areas during non-work time; wear promotional clothing in non-work areas during non-work time; display/use promotional items that comply with material specifications (i.e., no silicone); and raise questions, ideas, or concerns directly to Volkswagen management at any time.
Additional opportunities are available for groups that have completed the verification process and “represent a significant percentage of employees in the relevant employee group and whose members support the organization’s interaction with Volkswagen pursuant to this policy.” Ace has been verified for Level 1 support, which permits the organization in addition to reserve and utilize space in the Conference Center for internal employee meetings on non-work time once a month and post announcements and information in company-designated locations. Organization representatives who are VW employees may also meet monthly with company HR to present topics that are of general interest to their membership.
UAW won Level 3 privileges. In December 2014, UAW Local 42 submitted a sufficient number of cards that were independently verified to include enough employees to gain “Level 3” support, which means that more than 45 percent of current employees were members of the organization. That level of membership entitled Local 42 to:
- Reserve and utilize space in the Conference Center for meetings on non-work time once per week
- Invite external representatives of their organization for Conference Center meetings once per month
- Post materials on a dedicated/branded posting board
- Meet quarterly with a member of the Volkswagen Chattanooga Executive Committee (a Level 2 privilege that accelerates to bi-weekly with Level 3 support)
- Reserve and utilize on-site locations for meetings on non-work time (with staff and/or employees) as reasonably needed
- Meet bi-weekly with Company HR and monthly with the Volkswagen Chattanooga Executive Committee
According to some media reports, ACE is allegedly a group that may have been backed by business and political interests. However, ACE calls itself “an independent employee council created to ensure that all VW Chattanooga employees have a voice on the Volkswagen Global Works Council.” The organization also says that it is a local, not national, group that has no outside influence or political agenda.