Answering a question of first impression in representation proceedings, the NLRB granted in part an employer’s appeal from an order of a regional director denying its motion to require union counsel to withdraw because of a conflict of interest. The employer’s motion was based on its contention that because union counsel had previously represented it in another matter, counsel suffered from a disqualifying conflict of interest under the Maryland Lawyers’ Rules of Professional Conduct. The regional director denied the employer’s motion, after determining that he lacked the authority under Section 102.177 of the Board’s Rules and Regulations to grant the relief sought.
No so, said the Board in Supreme Airport Shuttle LLC. The employer appealed, urging the Board to direct the General Counsel to initiate an investigation of its allegations. The Board determined that the regional director, pursuant to the authority delegated by the Board to regional directors with respect to representation proceedings and subject to the Board’s review, has the authority to decide whether the relief sought by the employer was warranted, independent of the disciplinary procedure established by Section 102.177, which is administered by the Board’s General Counsel.
In an unfair labor practice proceeding, an administrative law judge, subject to the Board’s review, has the authority to disqualify a party’s counsel based on an impermissible conflict of interest. The Board found no sound reason for taking a different approach here. Accordingly, the Board concluded that it has an institutional interest in policing and preserving the integrity of its own proceedings, regardless of their nature. As a result, the Board reversed the regional director’s ruling and ordered him to reconsider the employer’s motion and conduct any investigation deemed necessary in order to decide the motion.
State right-to-work. On February 6, 2017, Missouri Governor Eric Greitens signed Senate Bill 19 making Missouri the 28th right-to-work state, another in a litany of recent victories for “right-to-work” proponents. Only the Northeast and the West have so far avoided successful right-to-work legislation at the state level, but New Hampshire is poised to be next, with a bill reportedly having passed the state senate. Under the Missouri law, effective August 28, 2017, employers are barred from requiring employees to become, remain, or refrain from becoming a member of a labor organization or to pay dues or other charges required of labor organization members, including any payments to charities or third parties in lieu of dues or other charges as a condition of employment.
National right-to-work. Last week, two Republican lawmakers introduced the “National Right-to-Work Act.” The bill, H.R. 785, introduced by Representatives Joe Wilson (R-S.C.) and Steve King (R-Iowa), would amend the National Labor Relations Act and the Railway Labor Act to remove language permits agency shop agreements. “At least 80 percent of Americans are opposed to forcing employees to pay dues as a condition of their employment, and our bill would protect workers by eliminating the forced-dues clauses in federal statute,” Wilson said in a statement.
Opponents say the measures have nothing to do with the right to work, Representatives Bobby Scott (D-Va.) and Peter DeFazio (D-Or.) said in a statement that although states are permitted to pass such anti-union legislation, this bill would “create an unfunded federal mandate that overrides a state’s wishes by requiring private labor organizations to support free riders without limitation.” Scott and DeFazio saw the bill as “a backdoor attempt” to bankrupt labor unions by forcing them to provide services for people who do not pay dues.
Calling the bill “a direct attack on workers and their families, by weakening unions’ ability to collectively bargain and negotiate for good wages and benefits,” Scott and DeFazio cited studies showing that “diminishing unions leads to lower wages and salaries for union and non-union workers alike. This is why wages are lower in so-called right to work states than those that are not.”
Public sector agency fees. Meanwhile, on February 6, the Center for Individual Rights filed a lawsuit against the state of California and the California Teachers Association on behalf of eight California public school teachers and the Association of American Educators. The teachers are again challenging California’s “agency fees” law. CIR previously represented other teachers in Friedrichs v. California Teachers Association, which raised the same issue and which resulted in an equally divided, non-binding U.S. Supreme Court opinion after the death of Justice Scalia last year. The gist of the suit is that public sector agency fees violate the First Amendment by forcing teachers to pay annual fees to the union, even if they are not a member.
According to a CIR press release, California is one of 23 states that require public employees to pay (reduced) union fees, even those who have expressly opted out of union membership. The eight teacher plaintiffs in CIR’s complaint in Yohn v. CTA have political and moral objections to policies on which unions spend their money. Stressed CIR in announcing the new lawsuit, “[w]ith judicial nominations now moving forward, it is imperative to have the issue ready for the full Supreme Court to consider. Questions of fundamental rights—like the right to free speech and free association as laid out in this case—deserve a final and binding decision from the Court.”
Should President Trump’s nominee for the Supreme Court, Neil Gorsuch, be confirmed, he is widely expected to provide the stand-in for Scalia’s anticipated fifth vote that would overturn the Court’s 1977 precedent in Abood v. Detroit Board of Education that allowed agency shop arrangements.
Union membership rate. As pointed out by my colleague David Stephanides last month, the union membership rate failed to advance in 2016. The Bureau of Labor Statistics announced January 26 that the rate was 10.7 percent in 2016, down 0.4 percent from 2015. In 2016, the number of wage and salary workers belonging to unions was 14.6 million, down 240,000 from 2015 (in 1983, the first year for which comparable data are available, the union membership rate was 20.1 percent). The public-sector union membership rate (34.4 percent) was more than five times higher than the private-sector rate (6.4 percent).
Plus, the NLRB reported January 31 that the number of union-filed representation petitions fell to 1299 in FY 2016, down from 1490 in FY 2015, a significant drop. Over 73,000 eligible employees voted in FY 2016, down from over 91,000 in 2015.
Once again, it appears that the revised election rules governing representation-case procedures (the “quickie” election rules to which many employers strenuously objected), which became effective in April 2015, are having little impact on feared union gains. Although unions won 72 percent of the petitioned-for elections, up from 69 percent in FY 2015, with the drop in union-filed petitions and the fall-off in eligible voter participation, any possibility for gains evaporated.
Union avoidance industry. A well-known and oft-cited article in the British Journal of Industrial Relations published in 2006, The Union Avoidance Industry in the United States, tracked this “industry,” composed of “consultants, law firms, industry psychologists, and strike management firms,” and claimed it was then worth “several hundred million dollars per year.” Both the ability to resist unionization and to undermine union strength overall are the ends the industry seeks, and it appears—notwithstanding the fearmongering from the industry that occurred during the eight years of the Obama Administration—that its efforts continue to be successful. But what will the industry do when it doesn’t have unions to kick around—and profit from—any longer?
The House, on February 2, passed a joint resolution of disapproval that would block the Labor Department’s controversial so-called “blacklisting” rule that implements President Obama’s Fair Pay and Safe Workplaces Executive Order. The 236-187 vote fell mostly along party lines, with three Democrats joining Republicans to approve the resolution and one Republican siding with Democrats who gave it a thumbs-down. Given that the Senate, like the House, is dominated by Republican lawmakers, and President Trump said he would sign it, the final rule is on the way out.
H.J. Res. 37 uses a procedural move under the Congressional Review Act that permits Congress to pass a resolution of disapproval to prevent, with the full force of the law, a federal agency from implementing a rule or issuing a substantially similar rule without congressional authorization.
Disclosing labor violations. The final rule on the chopping block, among other things, requires prospective contractors to disclose violations of 14 basic workplace protections from the last three years, including those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections. It also bars federal contractors from enforcing mandatory pre-dispute arbitration agreements as to workers’ claims of sexual assault or civil rights violations.
Not rewarding violators. House Education and the Workforce Committee Ranking Member Bobby Scott (D-Va.) opposed the resolution, saying that it would dismantle Obama’s Fair Pay and Safe Workplaces Executive Order and its assurance that taxpayer funds are not awarded to government contractors who willfully and repeatedly engage in labor law violations, such as wage theft or maintaining unsafe workplaces.
Scott said it’s imperative that contractors bid on a level playing field when they compete for contracts. “Unfortunately, this Resolution would effectively reward contractors who cut corners, endanger the rights and safety of their workers, and studies show, compromise quality,” Scott said on the Senate floor. “Although most federal contractors obey labor laws, studies by GAO, the Senate HELP Committee and others document that federal contractors with histories of serious, willful, and repeated violations of labor, employment and non-discrimination laws continue to be rewarded with federal contracts.”
Filling the data gap. “The rule implementing the Executive Order on Fair Pay and Safe Workplaces does not add any extra layers of review,” Scott said, “rather it would fill the data gap by requiring contractors to disclose whether they have violations of 14 long-standing labor laws, including the Fair Labor Standards Act, the Occupational Safety and Health Act, the Vietnam Era Veterans Readjustment Assistance Act, and non-discrimination laws.” Scott also noted that the final rule only applies to contracts over $500,000, which are not “Mom and Pop” operations.
Trump vows to sign the resolution. The Trump White House, expressing approval of five joint resolutions now working their way through Congress, including this one, had this to say about the “blacklisting” rule: “The rule would bog down Federal procurement with unnecessary and burdensome processes that would result in delays, and decrease competition for Federal government contracts. Rolling back this rule will also help to reduce costs in Federal procurement.”
The Trump Administration said it is “committed to reducing onerous regulatory burdens on America’s businesses and using existing authorities to continue enforcing the Nation’s workplace laws.”
The NLRB reported January 31 that the number of union-filed representation petitions fell to 1299 in FY 2016 (Oct. 1, 2015 to Sept. 31, 2016), down from 1490 in FY 2015. However, unions won 72 percent of the petitioned-for elections, up from 69 percent in FY 2015. Over 73,000 eligible employees voted in FY 2016, down from over 91,000 in 2015.
There were 172 decertification petitions filed over the same period, with employers winning 61 percent of the elections. In FY 2015, there were 176 decertification petitions, with employers winning 59 percent of the elections.
Representation petitions filed by employers rose to 25 in FY 2016 from 21 in FY 2015. Unions won 32 percent of the elections versus 23 percent in 2015.
Once again, it appears that the controversial revised election rules governing representation-case procedures (the “quickie” election rules), which became effective April 14, 2015, are having little impact. With the drop in union-filed petitions and the fall off in eligible voter participation, any possibility for gains evaporated.
Also reported this month, the union membership rate failed to advance in 2016. The Bureau of Labor Statistics announced January 26 that the rate was 10.7 percent in 2016, down 0.4 percent from 2015. In 2016, the number of wage and salary workers belonging to unions was 14.6 million, down 240,000 from 2015. The public-sector union membership rate (34.4 percent) was more than five times higher than the private-sector rate (6.4 percent).
Perhaps the new administration’s anticipated construction boom will advance these numbers in the unions’ favor. Indeed, labor leaders meeting with President Trump last week came away encouraged. Infrastructure improvements and pipeline construction do point to many long and short-term jobs, and labor leaders are eager to start work.
Seeking to ensure accessibility and usability of information and communication technology, the Access Board recently released the final rule updating accessibility requirements for information and communication technology (ICT) in the federal sector covered by Section 508 of the Rehabilitation Act. The guidelines for telecommunications equipment subject to Section 255 of the Communications Act are also affected.
Published in the Federal Register on January 18, 2017 (82 FR 5790-5841), the updated requirements specify the technologies covered and provide both performance-based and technical requirements for hardware, software, and support documentation and services. Access is addressed for all types of disabilities, including those pertaining to vision, hearing, color perception, speech, cognition, manual dexterity, and reach. The final rule restructures provisions so that they are categorized by functionality instead of by product type due to the increasingly multi-functional capabilities of ICT products. Revisions have also been made to improve ICT usability, including interoperability with assistive technologies, and to clarify the types of ICT covered, such as electronic documents.
According to the Board, this refresh also harmonizes the requirements of Section 508 and Section 255 with other guidelines and standards both in the U.S. and abroad, including standards issued by the European Commission and with the Web Content Accessibility Guidelines (WCAG), a globally recognized voluntary consensus standard for web content and ICT. In fact, the rule references Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 and applies them not only to websites, but also to electronic documents and software.
Access Board Executive Director David M. Capozzi said the Board worked very hard throughout the process to “ensure consistency with other consensus guidelines and international standards to promote global harmonization and facilitate compliance.”
“This update is essential to ensure that the Board’s Section 508 standards and the Communications Act guidelines keep pace with the ever-changing technologies covered and continue to meet the access needs of people with disabilities,” stated Sachin Pavithran, Chair of the Board’s ICT ad hoc committee. “The Access Board is grateful for the input it received from the public and stakeholders throughout the rulemaking process which greatly enhanced the final product.”
A proposed version of the rule was released for public comment in February 2015. The rule is based on recommendations from an advisory panel the Board chartered, the Telecommunications and Electronic and Information Technology Advisory Committee which included representatives from industry, disability groups, government agencies, foreign countries, and other stakeholders.
The rule becomes effective on March 20, 2017. However, compliance with the section 508-based standards is not required until January 18, 2018. Compliance with the section 255-based guidelines is not required until the guidelines are adopted by the Federal Communications Commission.
The Board will conduct a webinar on the rule on February 2.
For further information, contact Timothy Creagan at (202) 272-0016 (v), (202) 272-0074 (TTY), or visit the Access Board’s website.