Labor Relations & Wages Hours Update
April 2010
Hot Topics in LABOR LAW REPORTS:
New NLRB members take office, announce chief counsels
Newly appointed NLRB members Craig Becker and Mark Gaston Pearce took office this week, the agency announced on Wednesday, and began a series of orientation programs about the Board, its organizational procedures and case inventory. Becker was sworn in to office on Monday by General Counsel Ronald Meisburg. Pearce was sworn in this morning by Board Chair Wilma Liebman. The two new members were scheduled to meet yesterday with Liebman and Member Peter Schaumber and with their staffs.
Pearce has named Kent Y. Hirozawa as his chief counsel. Hirozawa, a partner in the New York law firm of Gladstein, Reif, and Meginniss, has represented unions and workers for over 20 years and writes frequently on labor law issues. Prior to joining the firm, he served as a field attorney with NLRB Region 2 (New York) and as a law clerk in the Second Circuit. Hirozawa received his JD from NYU in 1982. Becker has named Peter D. Winkler as his chief counsel. Winkler has worked at the NLRB since 1977 and served as chief counsel to former Members Dennis P. Walsh, Ronald Meisburg, and R. Alexander Acosta. He also was managing supervisor in the Appellate Court Branch, Division of Enforcement. Winkler received his JD from the University of Michigan Law School.
The seating of Becker and Pearce this week brings the Board to four members, with one remaining vacancy. Liebman and Schaumber acted as a two-member Board for 27 months, beginning in January 2008. During that time, they decided a total of 595 cases. “Member Schaumber and I welcome our new colleagues and look forward to working with them,” said Liebman. “I’d also like to take this opportunity to praise my long-term colleague Member Schaumber for his willingness to engage during this challenging period, and to credit him with our success in deciding so many cases under these unusual circumstances.”
President Obama made the recess appointments of Becker and Pearce on Saturday, March 29, after Becker’s nomination proved contentious and his entire slate of Board nominees was held up in the Senate. The nomination of Republican Brian Hayes, who was not given a recess appointment, remains pending. Hayes would bring the NLRB to its full five-member complement for the first time in several years.
Obama renominates NLRB, EEOC recess appointees
President Barack Obama late Wednesday resubmitted to the Senate his nominations to the NLRB and EEOC. Craig Becker and Mark Pearce, renominated to the NLRB, are currently serving on the Board under recess appointments. The Democratic controlled Senate previously was unable to override a Republican-led filibuster of Craig Becker (and by extension, the other Board nominees). Becker’s views on the role of employers in organizing campaigns has made him an anathema to Republicans; the latest renomination is sure to provoke a sharp response. If confirmed, Becker will serve on the Board until December 16, 2014, and Pearce until August 27, 2013.
Obama’s four recess appointees to the EEOC were renominated yesterday as well: Jacqueline Berrien, who was sworn in as EEOC Chair on April 7, was renominated for a term expiring July 1, 2014; Chai Rachel Feldblum, sworn in as Commissioner on April 7, was renominated for a term expiring July 1, 2013. Republican nominee Victoria Lipnic was renominated for the remainder of the term expiring July 1, 2010; Lipnic was sworn in as Commissioner on April 20. Finally, P. David Lopez was renominated as EEOC General Counsel for a term of four years. Lopez was sworn in on April 8.
Obama made the recess appointments on March 27 after what he called “months of Republican obstruction to administration nominees.”
Major work stoppages were at an all-time low in 2009, BLS reports
Five major work stoppages took place in the United States in 2009, involving 1,000 or more employees, according to a recent BLS report. The five work stoppages idled 13,000 employees for a total of 124,000 days of idleness (workdays lost). Both employee and idleness numbers having declined significantly, reaching an all-time low in 2009. In a report issued March 31, BLS profiles the significant work stoppages from 2009 and discusses the collective bargaining issues that arose in each.
NLRB seeks back pay for security guards who were paid minimum wage rather than contractual wage rate during training
The NLRB General Counsel’s office is seeking $214,000 in back pay in an enforcement action on behalf of 111 employees who allegedly were paid far less than their union contract specified while they were in initial training, the Board announced. The case dates back to 2004, when Coastal International Security paid trainees the applicable minimum wage of $5.15 per hour rather than the contractual wage rate of at least $18.50 an hour. The International Union of United Government Security Officers of America Local 203, which represents the security guards, tried to resolve the case through the grievance procedure to no avail. The NLRB regional office in Fort Worth conducted an investigation and, in 2007, issued a complaint alleging Coastal unilaterally changed terms and conditions of employment for the trainees without bargaining with the union, in violation of the NLRA. An administrative law judge upheld the findings, which the Board adopted in a 2008 decision. The Board issued an order directing Coastal to make the affected employees whole for their lost earnings. Coastal appealed to the Fifth Circuit, which found in favor of the Board in 2009. Attempts to broker a settlement between Coastal and the union were unsuccessful. On March 31, Regional Director Martha Kinard issued a Compliance Specification and Notice of Hearing seeking the $214,000. Individual awards would vary from about $100 to nearly $3,000. An administrative law judge will hear the backpay case (16-CA-23864) on June 14 in Fort Worth, Texas.
NLRB approves $2.5 million settlement in Connecticut striker replacement case
NLRB General Counsel Ronald Meisburg has approved a compliance settlement providing $2.55 million in back pay, interest and pension credits to 133 current and former employees of Church Homes, Inc, a nursing home and extended care facility in Hartford, Connecticut. The settlement, which Meisburg announced April 8, brings an end to a decade-long dispute involving Church Homes’ failure to reinstate workers who offered unconditionally to return to work. The case is significant, according to the agency, because it is the first time the NLRB has decided whether an employer may replace striking employees “secretly” without providing the union an opportunity to consider ending a strike or changing tactics.
The case dates back to November 1999, when employees represented by District 1199 of the New England Health Care Employees Union began a strike against Church Homes. The nursing home hired permanent replacements but did not advise the union until more than half of the strikers had been replaced. After an investigation, the NLRB Regional Office in Hartford argued that the hiring of replacements in secret was meant to punish the strikers and dilute support for the union, in violation of the NLRA. A series of rulings and appeals followed: The NLRB reversed an administrative law judge ruling in favor of the union in 2004. In turn, the Second Circuit vacated the NLRB’s findings and remanded the case to the Board for further consideration. In June of 2007, the NLRB issued a supplemental decision in which it concluded that Church Homes had unlawfully failed to reinstate the striking employees. The Second Circuit sustained the Board’s supplemental ruling in December 2008. In October 2009, the Supreme Court refused to hear the nursing home’s appeal.
Final rule on project labor agreements published April 13
A final rule implementing President Obama’s Executive Order 13502, “Use of Project Labor Agreements for Federal Construction Projects,” appeared in the Tuesday, April 13, Federal Register. EO 13502, issued on February 6, 2009, encourages federal agencies to consider requiring the use of project labor agreements (PLAs) for large-scale construction projects valued at $25 million or more. PLAs are pre-hire collective bargaining agreements reached between contractors and unions that establish the terms and conditions of employment for a specific construction project. Obama’s EO revoked executive orders issued by former President George Bush, which banned the use of PLAs in government contracting.
The Federal Acquisition Regulatory Council was instructed to take necessary action to implement the EO within 120 days of its issuance. Accordingly, the General Services Administration, Department of Defense, and NASA issued a final rule on July 14, 2009, rescinding Federal Acquisition Regulation (FAR) 36.202(d), a FAR provision that had prohibited agencies from requiring project labor agreements. On the same date, the agencies published for public comment a proposed rule to provide a new FAR subpart 22.5 to implement the provisions of EO 13502. The agencies received comments from more than 700 respondents. About 650 comments were form letters or emails expressing generic opposition to the use of PLAs, but did not directly address the proposed rule. Approximately 50 more substantive responses included roughly equal numbers supporting and opposing the use of PLAs; about eight responses were neutral.
The final rule amends 48 CFR Parts 2, 7, 17, 22, and 52 to implement Obama’s directive. According to the Federal Register, the final rule:
(1)Encourages agency planners to consider use of PLAs early in the acquisition process;
(2)Clarifies the policy for using PLAs to more closely track the terms of EO 13502;
(3)Identifies a number of factors that agencies may consider when deciding, on a case-by-case basis, whether the use of a PLA would be likely to promote economy and efficiency in the performance of a specific construction project, such as whether the project will require multiple construction contractors and/or subcontractors employing workers in multiple crafts or trades or whether there is a shortage of skilled labor in the region in which the construction project will be sited;
(4)Makes clear that a solicitation may include PLA requirements in addition to those specified in section 4 of the EO, as the agency deems necessary to satisfy its needs;
(5)States that an agency may specify in the solicitation, as appropriate to advance economy and efficiency in a given procurement, the terms and conditions of the project labor agreement and require the successful offeror to become a party to a PLA containing these terms and conditions as a condition of receiving a contract award; and
(6)Modifies the proposed solicitation provisions and contract clauses to give agency contracting officers the additional option of requiring offerors to submit a copy of the PLA with their offers.
Proposed rule to implement EO barring the use of federal dollars to persuade workers on unionization published April 14
A proposed rule implementing President Obama’s Executive Order 13494, “Economy in Government Contracting,” appeared in the Wednesday, April 14 Federal Register. EO 13494 was issued on January 30, 2009 (and amended on October 30, 2009). It directed that “certain costs that are not directly related to the contractor’s provision of goods and services to the government shall be unallowable for payment, thereby directly reducing government expenditures.” To this end, the EO prohibits federal agencies from paying government contractors for the costs of any activities undertaken to persuade employees, whether employees of the recipient of federal disbursements or of any other entity, to exercise or not to exercise the right to organize and bargain collectively.
EO 13494 disallows the disbursement of federal funds to pay for any activities related to persuading workers — or any “entity” — for or against unionization, including the costs of preparing and distributing materials, employee salaries for compelled attendance at meetings, or hiring consultants or legal counsel. “This order is …consistent with the policy of the United States to remain impartial concerning any labor management dispute involving Government contractors,” the EO states. Obama’s directive also provides that contractors will not be reimbursed for costs of activities that seek to persuade as to the “manner of exercising” organizing rights. This language suggests that the federal government will not disburse funds for contractors' attempts to influence whether unions will attempt to organize the contractors' employees via card-check recognition or through a NLRB-conducted election.
The proposed rule would amend the Federal Acquisition Regulation, 48 CFR part 31 as necessary to conform to the provisions of EO 13494. The revised FAR would provide that, “Costs incurred in maintaining satisfactory relations between the contractor and its employees…including costs of shop stewards, labor management committees, employee publications, and other related activities, are allowable.” The rule then lists those costs that are now unallowable pursuant to the Executive Order. The Federal Register announcement invites public comments on the proposed rule; the 60-day comment period ends June 14.
Reid introduces public safety employee collective bargaining bill
Senate Majority Leader Harry Reid (D-Nev) introduced the Public Safety Employer-Employee Cooperation Act of 2009 (S. 3194) on Monday, April 12, a measure that would require states to extend bargaining rights to firefighters, law enforcement officers, and emergency medical services personnel. The House Education and Labor Committee held hearings on a House version of the bill (H.R. 413) in March. Currently only 25 states fully protect the right of public safety employees to bargain collectively, according to Rep. Dale Kildee (D-Mich), who sponsored the House bill.
NLRB approves settlements in St. Louis casino cases
A casino operator has agreed to recognize a union representing about 560 employees at two of its St. Louis casinos, to restore full union wages and health benefits, and to offer reinstatement to discharged employees, according to terms of a settlement approved by the NLRB this week. Casino One Corp (dba Lumiere Place Casino & Hotels) and the President Riverboat Casino also agreed to resume bargaining with the union, UNITE HERE Local 74. At the Lumiere, which employs about 500 union members, the parties have not yet reached a first contract despite the employer’s recognition of the union a year ago. The President Riverboat, which employs about 60 union members, has announced it is closing.
The two casinos withdrew union recognition in May 2009, after Local 74 broke away from the UNITE HERE International Union during an internal union disagreement. Five months later, Local 74 re affiliated with UNITE HERE, however the Lumiere and President Casinos still refused to recognize or bargain with the union. The union filed charges and, after an investigation found merit, the acting regional director issued complaints alleging that the casinos had violated the NLRA by withdrawing union recognition and imposing new terms and conditions of employment, including changes to health insurance rates and benefits, 401(k) benefits, and work rules. The employers have agreed to rescind all such changes, to reinstate any employees who were terminated as a result of the charges, and to make employees whole for the loss of wages and benefits they suffered as a result. In doing so, they admit no wrongdoing.
NLRB acting regional director Donald E. Gardiner approved the settlement on April 13. The settlement averts a trial that had been scheduled for next week before an administrative law judge.
NLRB General Counsel releases ABA labor and employment law session Q&A
NLRB General Counsel Ronald Meisburg met with labor and employment law attorneys at the American Bar Association’s Labor and Employment Law Section to field questions and to discuss some of the current initiatives of his office. The primary purpose of the meeting, Meisburg noted, was to discuss and respond to concerns about Agency casehandling processes from the Committee on Practice and Procedure, as well as concerns raised on a “consensus basis by attorneys with practices representing unions, employees and management.” Meisburg’s memorandum, GC 10-03, offers detailed answers to many of the questions submitted by the committee earlier in the year, as well as an update on the General Counsel’s outreach initiative and the GC office’s initiative for “nip-in-the-bud” cases. Also among the subjects of discussion were the General Counsel's approach to dealing with bankrupt employers and the results of the General Counsel’s initiative to close cases more promptly. “It is my hope that the release of this report furthers the interests of open government and fosters professional and productive relationships between the Labor Board and the practitioners coming before it,” Meisburg said.
High Court asks for supplemental briefs in New Process Steel
The Supreme Court on Friday directed the parties in New Process Steel v NLRB (Dkt No 08-1457) to file supplemental briefs to address a letter from the Solicitor General notifying the Court of President Obama’s recent recess appointment of two nominees as Members of the NLRB. The High Court’s order asked the parties to address: “What should be the effect, if any, of the developments discussed in the letter submitted by the Solicitor General on March 29, 2010, on the proper disposition of this case?” The Supreme Court heard oral argument in the case, which challenges the authority of a two-member NLRB to issue rulings, on March 23. The two-member Board, comprised of Board Chair Wilma Liebman and Member Peter Schaumber, had issued some 600 decisions over the course of two years. The briefs are to be submitted by Monday, April 26.