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Rare Court Order Telling Union To Stop Filing Grievances Example Of Employer Risks When Caught Between Competiting Unions

November 23, 2012

A district court judge in Washington has ordered the International Longshore and Warehouse Union (ILWU) to stop processing grievances and filing lawsuits against a competitive union, the International Brotherhood of Electrical Workers (IBEW), and, pending the outcome of further litigation, employers assigning work of plugging in, unplugging and monitoring refrigerated shipping containers at the Port of Portland to IBEW. The litigation between the two competing unions shows how employers can get caught in risky, no-win liability exposures as a result of power battles between competing unions over the right to represent workers performing services for the employers.

The injunctive order steps from a dispute between both unions over which union is entitled to represent a group of workers. Both unions claim the work, citing various contracts and collective bargaining agreements. In August 2012, the National Labor Relations Board issued a decision concluding that the employees represented by the IBEW are entitled to the work. Despite that ruling, the ILWU and two of its locals have continued to file and process grievances against employers serving as carriers at the port, seeking lost wages for work assigned to the IBEW. The ILWU also filed a claim against the IBEW in federal court under the Labor-Management Relations Act.

In granting the petition for injunctive relief from the NLRB’s Regional Office in Seattle late Wednesday, November 22, 2012, U.S. District Judge Michael H. Simon found that, by filing grievances and seeking enforcement of subsequent awards despite the Board’s decision, the ILWU had the unlawful secondary object of pressuring shipping carriers to stop doing business with the Port of Portland. He enjoined the union from filing, processing, maintaining, prosecuting, or threatening grievances or new lawsuits in the matter against the union as well as the carrier employers. With respect to the dispute with IBEW, the court ruled that the continued filing of the grievances against the IBEW constituted an unfair labor practice because the NLRB ruling already had recognized the IBEW as the authorized representative of the covered employees performing the work.

Concerning his decisions to also bar the ILWU from suing and filing charges against the employing carriers that have been caught in the war between the two unions, the Court issued a temporary injunction pending the outcome of the litigation. The court noted that the question of whether the NLRB ruling prohibited the carrier employers from subcontracting work covered by the NLRB order could not be permanently resolved based in the facts on the record, but that the IBEW had produced sufficient evidence of likely success on merits and irreparable harm to justify the court’s issuance of a temporary injunction.

While federal courts rarely enjoin unions under the National Labor Relations Act, the federal court in this matter found in light of the NLRB ruling in favor of the other union, the court’s decision in favor of the IBEW allows the IBEW to move forward for the time being as the representative of the workers. Concurrently, the court’s decision allows the employers caught between the two unions to continue operations for the time being by assigning work to the IBEW workers unless and until the ILWU proves its entitlement to that work.

For Help or More Information

If you need help reviewing and updating, administering or defending your employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

About Ms. Stamer

A Board Certified Labor & Employment attorney and Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

Ms. Stamer is widely known for her extensive and creative knowledge and experienced with these and other labor and employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.

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Leave a Comment » | ADA, Corporate Compliance, EEOC, Employers, GINA, Human Resources, OFCCP, Retaliation | Tagged: Employer, NLRA, NLRB, unfair labor practices, Union | Permalink
Posted by Cynthia Marcotte Stamer

NLRB’s Nailing of Bel Air Hotel Reminder RIFs, Other Reengineering & Transactions Impacting Workforce Requirement Proper Risk Management

October 5, 2012

Severance Deals Get Hotel Bel-Air Nailed By NLRB For Labor Law Violations

A National Labor Relations Board (NLRB) decision that nails Hotel Bel-Air (Hotel) for offering severance packages to unionized workers highlights one of a range of potentially costly missteps that businesses conducting reductions in force or other re-engineering risk if they fail to properly understand and manage legal requirements when designing and implementing the change.

Since labor and other workforce-related risks are long-standing, some businesses, their leaders and consultants may be tempted to assume that prior experience means these are handled. The fact specific nature of the risks and changing rules and enforcement, however, makes it critical not to be over-confident. Legal and operational mismanagement of these risks can disrupt achievement of the purpose of the change and add significant added cost and exposure for the business and its management. Proper use of qualified legal counsel as part of the process is important both to help identify and properly manage risk and to leverage attorney-client privilege to help shield sensitive communications in the planning and implementation of these activities from discovery.

Employer’s Obligations To Negotiate & Deal With Union

Once a union is recognized as the certified representative of employees in a workplace, the National Labor Relations Act (NLRA) generally prohibits the employer from unilaterally changing term and conditions of employment or from going around the union to bargain directly with employees over layoffs, the effects of layoffs and other material terms and conditions of employment. As part of this responsibility, the NLRA and other federal and state laws generally require that employers provide notification to the union of planned reductions in force, plant closings or other operational changes that might impact the workforce and bargain in good faith with the union before conducting layoffs, or offering or making in work rules, compensation, severance or other benefits or other terms or conditions of employment.

In general, an employer’s duty to bargain with a union generally also continues to apply when the collective bargaining agreement between the union and the employer expires unless and until the parties reach agreement or impasse. While negotiations continue, the employer’s obligation to refrain from making unilateral changes generally encompasses a duty to refrain from implementation unless and until an overall impasse has been reached on bargaining for the agreement as a whole. See Pleasantview Nursing Home, 335 NLRB 96 (2001) citing Bottom Line Enterprises, 302 NLRB 373 (1991). The NLRB considers negotiations to be in progress, and will not find a genuine impasse to exist, until the parties are warranted in assuming that further bargaining would be “futile” or that there is “no realistic possibility that continuation of discussion . . . would be fruitful.” Saint-Gobain Abrasives, Inc., 343 NLRB 542 556 (2004).

Because the existence of impasse is a factual determination that depends on a variety of factors, including the contemporaneous understanding of the parties as to the state of negotiations, the good faith of the parties, the importance of the disputed issues, the parties’ bargaining history, and the length of their negotiations, Taft Broadcasting Co., 163 NLRB 475, 478 (1967), parties to the negotiation often do not necessarily agree when they have reached impasse. As the September 28 decision by the NLRB against the Hotel shows, employers that act unilaterally based on an overly optimistic determination of impasse suffer significant financial and other operational and legal risks for engaging in unfair labor practices in violation of Section 8 of the NLRA.

NLRB Nails Hotel Bel-Air For Failing To Bargain, Offering Severance Around Union

In its September 28, 2012 Bel-Air Hotel Decision, the NLRB ruled the Hotel engaged in unfair labor practices in violation of the NLRA when it offered severance packages to laid off workers in return for the workers’ waiver of recall rights without bargaining to impasse with the union representing its workers, UNITE HERE Local 11 (Union), about the effects of the temporary shutdown.

The NLRB also ruled the Hotel engaged in unlawful direct dealing by contacting the employees about severance packages without going through the Union even though the Hotel’s contract with the union had expired when the Hotel contacted the laid off union employees to offer severance in return for waivers. As a result, the NLRB ordered the Hotel to rescind the waiver and release forms signed by the Union members and to meet and bargain with the Union on these terms.

Bel-Air Hotel Decision Background

The NLRB order against the Hotel resulted from unfair labor practice charges that the Union filed against the Hotel after the Hotel offered severance packages directly to workers in exchange for the workers’ waiver of their recall rights while the workers were laid off during the Hotel’s temporary closure for renovations in 2009.

Before the Hotel offered the severance package directly to the laid off workers, the Hotel and the Union bargained for nine months about the terms of a separation agreement and recall rights for employees who would lose their jobs during a planned 2-year shutdown of the facility for renovation. In April, 2010, the Hotel gave the Union what it said was the “last, best, and final offer” on severance pay for unit employees laid off during the temporary renovation closure. While the Union and the Hotel did talk after the Hotel made this final offer. Unfortunately, the parties did not reach an agreement before their existing collective bargaining agreement expired or before the Hotel shut down the facility for renovation. After the shutdown, the Union and the Hotel stopped formal negotiations but had some “off the record” informal communications until June. With no resolution by the end of June, the Hotel moved forward unilaterally to offer severance directly to the laid off employees as outlined in its final offer.

Although the facility was closed and the employees already laid off when the Hotel’s contract with the Union expired, the Union claimed the Hotel remained obligated to negotiate with the Union. The Union said a flurry of “off-the-record” discussions between the Hotel and the Union leading up to and after the termination showed the parties had not reached impasse. The Union also separately charged that the Hotel violated the NLRA by going around the Union to directly contact employees to offer severance payments in exchange for waiving their right to return to their jobs when the Hotel reopened after renovation.

In response to unfair labor practices charges filed by the Union, Hotel management among other things argued that the Union no longer represented the employees when it offered severance and because the parties’ contract had expired and the parties were at impasse when the Hotel made the offer.

Union Remained Representative Despite Layoff & Temporary Facilities Shutdown

The NLRB found “meritless” the Hotel’s effort to rely upon the NLRB’s decision in Sterling Processing Corp., 291 NLRB 208 (1988) to support the Hotel’s claim that it had no duty to bargain or extend the severance offers through the Union because it made the unilateral severance offer when the facility was closed and the employees were already laid off.

In Sterling, the NLRB found the employer’s unilateral modification of preclosure wages and working conditions did not violate Section 8(a)(5) of the NLRA because when the employer acted unilaterally, there were no employees for the union to represent because when the employer took its unilateral action, the employer already had permanently closed the facility and terminated all employees with no reasonable expectation of reemployment.

The NLRB ruled that the circumstances when the Hotel acted were distinguishable from Sterling because the unit employees on layoff from the Hotel retained a reasonable expectation of recall from layoff since the Hotel’s closure was only temporary and the Hotel had only laid off, and not yet discharged the employees when it made the unilateral severance offers. According to the NLRB, the terms of the severance offer evidenced the existence of an expectation of recall because under the terms of that offer, employees who accepted a severance payment waived their recall rights. See, Rockwood Energy & Mineral Corp., 299 NLRB 1136, 1139 fn. 11 (1990), enfd. 942 F.2d 169 (3d Cir. 1991)(finding that lengthy suspension of production did not relieve employer of its bargaining obligation where laid off employees had “some expectation of recall,” and distinguishing Sterling).

No Impasse Because Of Informal “Off The Record” Communications

The Hotel also separately and unsuccessfully argued that its direct offer of severance benefits to laid off employees was not an unfair labor practice because the parties had bargained to impasse before the offer was made. In response to the Union’s claim that a series of “off-the-record” exchanges between the Union and Hotel after the contract expired reflected a continuation of bargaining, the Hotel argued that an impasse existed because the Union was not engaged in good faith negotiations and there was not any possibility that the informal discussions between the Union and the Hotel would result in any fruitful change in the parties positions.

In an effort to support its position, the Hotel management argued that the Union’s negotiation behavior with other Los Angeles hotels showed the Union had a practice of “artificially extend[ing] negotiations in bad faith” that supported the Hotel’s claim that continued negotiation would be futile. The NLRB rejected this argument too. It said evidence that the Union did not bargain in good faith to string out negotiations when negotiating with other businesses as part of a campaign to coerce all hotels city wide to agree to a standard contract had no probative relevance for purposes of determining if the Hotel and the Union had bargained to impasse in their negotiations and did not prove bad faith by the Union for purposes of its negotiation with the Hotel.

Having rejected these and other Hotel arguments and evidence of impasse, the NLRB ruled that the evidence indicated that the parties continued communications had narrowed their differences before and after the Hotel made its last final offer on April 9. Given this progress, the NLRB ruled that parties’ participation in informal off the record discussions well into June were sufficient to show the existence of some possibility that continued negotiations might result in a fruitful change in the parties position sufficient to obligate the Hotel to continue to bargain with the Union.

NLRB Order Carries Heavy Cost for Bel-Air Hotel

Complying the NLRB’s orders to remedy the breach will be painful and expensive for the Hotel, particularly since by the time the order was issued, the renovation was substantially completed.

To fulfill the requirements of the Order, the Hotel must, among other things:

Bargain with the Union as the recognized and exclusive collective-bargaining representative of the employees about the effects on bargaining unit employees of the temporary shutdown of the hotel for renovation and, if an understanding is reached, embody the understanding in a signed collective bargaining agreement;
Not deal directly with bargaining unit employees about severance, waiver and release or other terms or arrangements relating to the impact of the temporary shutdown on the bargaining unit employees
Rescind the waiver and release agreements signed by individual bargaining unit employees which included the waiver of rehire rights; and
Post a NLRB-mandated written notice in the workplace for 60 consecutive days in conspicuous places.

This means that the Hotel will have to work through issues about how to find positions for employees, if any, who originally agreed to waive their rehire rights who now wish to be rehired, as well as engage in expensive bargaining and the implementation of the terms of any resulting collective bargaining agreement.

Union Duties One of Many Potential HR RIF & Deal Traps

The NLRB’s prounion ruling is unsurprising. Since the Obama Administration took office, its NLRB appointments, rule changes and other activism are intended to and are promoting the strength and efforts of labor. See e.g. Labor Risks Rising For Employers Despite NLRB Loss Of Arizona Secret Ballot Challenge : HR Article by Ms. Cynthia Marcotte Stamer .

Collective bargaining responsibilities like those that resulted in the NLRB order against the Hotel are only one of many potential labor, human resources and benefits-related traps that businesses need to negotiate carefully when planning and executing layoffs or other workforce restructurings in connection with cost or other restructurings, business transactions or other activities impacting the workforce.

Some examples of other issues and risks that businesses involved in changes impacting their workforce also may need to manage include but are not limited to the need to manage discrimination, federal and state leave, whistleblower and retaliation, and other general employment-related legal risks and responsibilities; to give Worker Adjustment and Retraining Act (WARN) or state law required plant closing or other notifications to workers, unions, government officials, vendors, customers, lenders or other creditors, insurers or others; to disclose, review, modify or terminate contracts, employee benefit plan documents, communications and other materials; to modify fiduciary, officer, board or other assignments and other related insurance, indemnification, bonding and related arrangements; to comply with employee benefit and compensation related plan document, fiduciary responsibility, discrimination, communication, benefit funding or distribution, reporting and disclosure and other Employee Retirement Income Security Act, Internal Revenue Code, securities and other laws and regulations; privacy, trade secret, and other data integration, confidentiality, and information security and management concerns; Sarbanes-Oxley and other securities, accounting or related requirements; system and data integration; and many others.

Because improper handling of these or other responsibilities in connection with these responsibilities can significantly undermine the businesses’ ability to realize the financial and operational goals behind the action, as well as expose the business to potentially costly liability, businesses anticipating or conducting reductions in the force or other activities that will impact their workforce should seek advice and help from qualified legal counsel experienced with these concerns early to mitigate these concerns.

If you have any questions or need help with these or other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

$1.25M NLRB Backpay Order Highlights Risks of Mismanaging Union Risks In Health Care & Others M&A Deals

September 23, 2012

California nursing home buyer must pay estimated $1.25 million in backpay and interest, recognize union & hire 50 employees of seller following purchase

Last week’s National Labor Relations Board (NLRB) order requiring the buyer of a California nursing home to pay approximately $1.25 million in backpay and interest, rehire 50 employees and recognize the seller’s union reminders buyers of union-organized businesses of some of the significant risks of mishandling union-related obligations in merger and acquisition, bankruptcy and other corporate transactions under the National Labor Relations Act (NLRA) and other federal labor laws.

Buyer’s Obligations To Honor Seller’s Collective Bargaining Obligations

Under the NLRA, new owners of a union facility that are “successors” of the seller generally must recognize and bargain with the existing union if “the bargaining unit remains unchanged and a majority of employees hired by the new employer were represented by a recently certified bargaining agent.” See NLRB v. Burns Sec. Servs., 406 U.S. 272, 281 (1972).

In assembling its workforce, a successor employer also generally “may not refuse to hire the predecessor’s employees solely because they were represented by a union or to avoid having to recognize a union.” U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd., 944 F.2d 1305 (7th Cir. 1991).

Nasaky, Inc. NLRB Order

Last week’s NLRB Order requires Nasaky, Inc., the buyer of the Yuba Skilled Nursing Center in Yuba City, California, to recognize and honor collective bargaining obligations that the seller Nazareth Enterprises owed the before the sale and rehire and pay backpay and interest to make whole 50 of the seller’s former employees who the NLRB determined Nasaky, Inc. wrongfully refused to hire when it took over the facility from the prior owner, Nazareth Enterprises.

Before Nasaky, Inc. bought the nursing home, many of the employees at the nursing home were represented by the Service Employees International Union, United Healthcare Workers West (Union). After Nasaky, Inc. agreed to buy the facility but before it took control of its operations, Nasaky, Inc. advertised in the media for new workers to staff the facility and told existing employees at the facility that they must reapply to have a chance of keeping their jobs under the new ownership.

When Nasaky, Inc. took operating control of the Facility, facility operations continued as before with the same patients receiving the same services. The main difference was the workforce. The new staff included 90 employees in erstwhile bargaining unit positions, of which forty were former employees of the predecessor employer and fifty were newcomers. Nasaky, Inc. then took the position that the change in the workforce excused it from responsibility for recognizing or bargaining with the Union or honoring the collective bargaining agreement between the Union and seller Nazareth Enterprises.

When the union demanded that Nasaky, Inc. recognize the Union and honor the Union’s collective bargaining agreement with Nazareth Enterprises, Nasaky, Inc. refused. Instead, Nasaky, Inc. notified the union that it would not allow the Union on its premises, would not honor the Union’s collective bargaining agreement with the seller, and did not accept any of the predecessor’s terms and conditions of employment. The Union then filed charges with the NLRB, charging that Nazareth Enterprises had breached its obligations as a successor under the NLRA.

After NLRB Regional Director Joseph F. Frankl agreed and issued a complaint, California Administrative Law Judge Gerald Etchingham found all the allegations true based on a two-day hearing. He rejected all of Nasaky’s explanations for why it declined to hire most of those who had worked for the previous employer. See ALJ Decision. Since Nasaky, Inc did not file exceptions, the NLRB ordered Nasaky, Inc. immediately to recognize and bargain with the Union, hire the former employees and make them whole. The amount of backpay and interest is expected to approximate $1.25 million.

Managing Labor Exposures In Business Transactions

The NLRB’s order against Nasaky, Inc. highlights some of the business and operational risks that buyers and sellers can face if labor-management relations are misperceived or mismanaged in connection with business transactions. Because the existence of collective bargaining agreements or other labor obligations can substantially affect the operational flexibility of a buyer, buyers need to investigate and carefully evaluate the potential existence and nature of their obligations as part of their due diligence strategy before the transaction. A well-considered understanding of whether the structure of the transaction is likely to result in the buyer being considered a successor for purposes of union organizing and collective bargaining obligations also is very important so that the buyer and seller can properly appreciate and deal with any resulting responsibilities.

Beyond the potential duty to recognize a seller’s collective bargaining obligations, buyers and sellers also should consider the potential consequences of the proposed transaction on severance, pension, health, layoff and recall and other rights and obligations that may arise. At minimum, the existence of these responsibilities and their attendant costs are likely to impact the course of the negotiations.

When a worksite is union organized, for instance, additional obligations may arise in the handling of reductions in force or other transactions as a result of the union presence. For example, in addition to otherwise applicable responsibilities applicable to non-union affected transaction, the Worker Adjustment Retraining Act (WARN) and other plant closing laws and/or collective bargaining agreements may impose special notification or other requirements before a reduction in force or other transaction related activities.

Similarly, the existence of collective bargaining agreements also may trigger obligations for one or both parties to engage in collective bargaining over contemplated changes in terms and conditions of employment, to provide severance, to accellerate or fund severance, benefits or other obligations, to provide continued health or other coverage, to honor seniority, recall or other rights or deal with a host of other special contractual obligations.

Where the collective bargaining arrangements of the seller currently or in the past have included obligations to contribute to a multiemployer, collectively bargained pension or welfare plan, the buyer and seller also need to consider both the potential for withdrawal liability or other obligations and any opportunities to minimize these exposures in structuring the allocation of the arrangement. In this case, both parties need to recognize that differences exist between the federals for determining when successor liability results under the withdrawal liability rules than typically apply other labor and employment law purposes. While buyers and sellers often presume that the stock versus assess sale distinction that typically applies for many other legal purposes will apply, this can be an expensive mistake in the case of determining a buyer’s obligation to honor the seller’s collective bargaining obligations post deal. Likewise, buyers can be exposed to multiemployer successor liability from asset transactions, although it may be possible to mitigate or avoid such liabilities by incorporating appropriate representations in the sale documents or through other steps. Since these multiemployer withdrawal and contribution liabilities generally attach on a controlled group basis, both parties need to properly appreciate and address these concerns early in the transaction to mitigate their risks and properly value the transaction.

In light of these and other potential labor-related risks that may affect corporate and other business transactions, parties contemplating or participating in these transactions are urged to engage and consult with competent legal counsel with specific experience in such labor management relations and multiemployer benefit plan matters early in the process.

About The Author

Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.

About Solutions Law Press

1 Comment | ADA, Corporate Compliance, EEOC, Employers, GINA, Human Resources, OFCCP, Retaliation | Tagged: ADA, Collective Bargaining, collectively bargained, Corporate Compliance, Disability Discrimination, Employee Benefits, Employers, Employment, Health Insurance, Health Plans, Human Resources, Labor-Management, multiemployer health plans, multiemployer pension plans, NLRA, NLRB, Union, withdrawal liability | Permalink
Posted by Cynthia Marcotte Stamer

NLRB Moves To Promote Non-Union Employee Use of Collective Action Rights By Launching Webpage

June 18, 2012

The National Labor Relations Board is launching a new website page focused on promoting awareness and encourage the exercise of rights to employees to act together for their mutual aid and protection, even if they are not in a union, under the National Labor Relations Act (NLRA).

As part of its aggressive commitment to promote and support union organizing and other collective action by employees under the Obama Administration, the NLRB in recent years has stepped up investigatory and enforcement activities on behalf of non-union employees. The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.

The new webpage launched June 18, 2012 here seeks to promote awareness and use of these and other collective action rights under the NLRA by sharing stories of more than a dozen recent cases involving protected concerted activity. Examples of these cases include stories of A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.

“A right only has value when people know it exists,” said NLRB Chairman Mark Gaston Pearce. “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

In addition to the new webpage, the NLRA also has undertaken efforts to promote employee awareness of NLRA rights by imposing new employer poster requirements, has attacked the use of mandatory arbibtration provisions by employers as prohibited under the NLRA, and has pursued a wide range of regulatory and enforcement policy changes that seek to strengthen the power of organized labor. In light of this growing activism, employers should continue to strengthen their labor-management policies and practices to mitigate the growing labor exposures that result from this activist agenda.

For Help or More Information

If you need help with labor and employment or other human resource, performance management, internal controls or compliance and risk management matters, please contact the author of this article, Cynthia Marcotte Stamer. Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.

Widely published on worker classification and other workforce risk management and compliance concerns, the immediate past-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee and current Co-Chair of its Welfare Plan Committee, Vice Chair of the ABA TIPS Section Employee Benefits Committee, a Council Representative of the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, worker classification, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

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Posted by Cynthia Marcotte Stamer

NLRB Challenges Mandatory Arbitration Provisions

May 1, 2012

Employers should check handbooks or other policies include provisions that require employees to agree to mandatory individual arbitration or other waivers of rights to sue, file regulatory charges or seek other remedies should evaluate the advisability of updating those policies in light of recent National Labor Relations Board (NLRB) actions like those announced yesterday (April 30, 2012) against 24 Hour Fitness USA, Inc. (24-Hour Fitness).

In D.R. Horton, Inc., 357 NLRB No. 184, the Board earlier this year found that the employer, a home building company, violated Section 8(a)(1) of the Act by maintaining, as a condition of employment, a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial.

As a follow-up to that decision, the NLRB now is charging 24-Hour Fitness with violating federal labor law by insisting that all employment-related disputes be resolved by individual arbitration. A California-based corporation which operates fitness centers across the country, 24-Hour Fitness requires employees to agree in writing, as a condition of employment, to forego any rights to “collective or class action” lawsuits or arbitrations. Applying the rule it adopted earlier this year in D.R. Horton, Inc., 357 NLRB No. 184, the NLRB is charging this violates the collective bargaining and organizational rights of the National Labor Relations Act (NLRA).

The charges against 24-Hour Fitness stem from a charge filed by an employee at the 24 Hour Fitness center in San Ramon, California. Since at least the summer of 2010, the NLRB claims that the company has enforced its no-class-action policy by asserting it in litigation brought by employees in many cases, seven of which are cited in the complaint. In each case, employees, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis. In response, 24-Hour Fitness sought to compel the employees to submit their common claims to individual arbitrations, citing the policy in its handbook.

The complaint calls for a hearing before an Administrative Law Judge on June 11, and seeks an order requiring the company’s fitness centers nationwide to stop maintaining and enforcing that portion of the policy that prohibits collective and class action, and to notify all judicial and arbitral forums in which it has opposed such action.

The NLRB position regarding mandatory arbitration policies is of a series of activist positions that it has taken over the past year. In light of this growing activism, employers should continue to strengthen their labor-management policies and practices to mitigate the growing labor exposures that result from this activist agenda.

For Help or More Information

Widely published on worker classification and other workforce risk management and compliance concerns, the immediate past-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee and current Co-Chair of its Welfare Plan Committee, Vice Chair of the ABA TIPS Section Employee Benefits Committee, a Council Representative of the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, worker classification, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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NLRB Changes Certification Election Case Procedures

December 25, 2011

The National Labor Relations Board (NLRB) has adopted a final rule amending its election case procedures. The final rule published in the Federal Register on December 22, 2011primarily focuses on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.

Scheduled to take effect April 30, 2012, the new final rule Final Rule on Election Procedures seeks to reduce litigation. Among other things, the Final Rule:

Amends § 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;
Amends § 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;
Amends § 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;
Amends §§ 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;
Eliminates 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;
Amends § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted;
Amends §§ 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; and
Eliminates part 101, subpart C of Board regulations and makes other conforming amendments.

According to the NLRB, the changes in the Final Rule will ensure that going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

Click here to read the Final Rule.

The Final Rule annoucnement was followed by the NLRB’s announcement that it is delaying the deadline for employers to comply with its employee rights notice-posting rule until April 30, 2012. However the extension does little to relieve employers from the wave of added regulatory and enforcement guidance including new social networking guidance issued coincident with the extension announcement.

While the poster requirement is delayed, the NLRB continues to pursue an active regulatory and enforcement agenda. See, e.g., Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board. Employers should continue to strengthen their labor-management policies and practices to mitigate the growing labor exposures that result from this activist agenda. In fact, the NLRB accompanied its extension anouncement by sharing new guidance about its position on labor law restrictions on employer regulation of social networking and other communications.

For Help or More Information

If you need help with labor managmeent relations or other human resources or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer.

Board Certified in Labor & employment Law by the Texas Board of Legal Specialization, ,management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

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Posted by Cynthia Marcotte Stamer

Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board

November 8, 2011

The just-released National Labor Relations Board (Board) 2011 Fiscal Year-end report highlights the advisability for employers to tighten their labor-management relations compliance and defenses in response to the growing regulatory and enforcement activism of the Board on behalf of labor under the Obama Administration.

President Obama made no secret of his strong support and intention to pursue an aggressive pro-union legislative and enforcement agenda and to take other actions to support unions. While Administration efforts to enact the Employee Free Choice Act or other pro-union legislation have met with limited success in Congress, federal enforcement law data shows the Obama Administration is achieving significant success in promoting its pro-union agenda through regulation and enforcement.

The 2011 Fiscal Year-end numbers show the number of cases handled by the Board rose 17% in 2011. During the 2011 Fiscal Year that began October 1, 2010, the Board:

Handled 272 unfair labor practice cases and 96 representation cases;
Issued 368 decisions in contested cases; and
Pursued two pro-labor rule making initiatives.

In cases like its highly publicized challenge to the planned move by Boeing of jobs to another state, the Board regularly has lent its support to labor efforts to oppose or challenge management authority. In the course of handling these cases, the Board also reached out to strengthen the power and protections of labor by addressing issues such as the access rights of pro-union employees to employer property, the rights of undocumented immigrant workers to back pay remedies, the protection of new collective bargaining relationships from challenge and other issues favorable to union organization and rights.

Along side its high disposition of cases, the Board also has released and sought public comment on two new rules favorable to labor:

A new final rule that will require that employers post a notice of employee rights under the National Labor Relations Act (“Posting Rule”) scheduled to take effect on January 31, 2012; and
Proposed rules that would change pre- and post-election representation case procedures, which the Board has not finalized at this time.

The progress of the Board in using its regulatory and enforcement powers to promote a pro-labor agenda is helping union organizing and bargaining efforts. In light of this new activism, employers should review their existing policies to ensure that they comply with evolving federal rules regarding the rights of labor and to otherwise act to defend against potential labor related risks keeping in mind emerging decisions that extend certain historical labor rights to unionized employees, employees engaged in protected organizing activities and, under recent decisions, in some instances even employees in non-union environments requesting representation in disciplinary or other circumstances not historically understood by employers to fall within the provision of the National Labor Relations Act.

For Help or More Information

If you need help reviewing, updating, administering or defending your labor and employment, fringe benefit or other employee benefit, compensation or other workforce and human resources practices, please contact the author of this update, Cynthia Marcotte Stamer.

Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on labor and employment, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements impacting workforce, benefit and compensation matters. She regularly advises employers and others about union-management organizing, collective bargaining, discipline, and other related issues, as well as a broad range of other human resources concerns.

Recently selected for induction as a Fellow in the American College of Employee Benefit Council and for extensive work and accomplishments in the employee benefits and human resources area, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, she also helps employers and others negotiate employee benefit and other compensation related commitments with unions and others. She also helps these and other clients to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

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Posted by Cynthia Marcotte Stamer

Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures

May 20, 2011

The National Labor Regulations Board (NLRB)’s announcement of a settlement against a Connecticut nursing home operator this week in conjunction with a series of other enforcement actions highlight the need for businesses to tighten defenses and exercise other caution to minimize their organization’s exposure to potential NLRB charges or investigation. As reflected by many of these enforcement acts, the exposures arise both from active efforts by businesses to suppress union organizing or contracting activities, as well as the failure to identify and manage hidden labor law exposures in the design and administration of more ordinary human resources, compliance, business operations and other policies and practices.

On May 17, 2011, the NLRB announced here that Connecticut nursing home operator Spectrum Healthcare has agreed to settle a NLRB case involving multiple allegations of unlawful suspensions, discharges and unilateral changes in violation of the National Labor Relations Act and other federal labor laws by offering reinstatement and back pay to all discharged and striking workers and signing a new three-year collective bargaining agreement with its employees’ union, New England Health Care Employees Union District 1199, SEIU.

Along with the contract and reinstatement of all employees, the company agreed to pay $545,000 in back pay and pension benefits to employees who were harmed by the unfair labor practices, and to expunge any disciplinary records related to the case. As a result, all NLRB charges against the company have been withdrawn. Spectrum admits to no wrongdoing in the settlement.

The settlement, reached midway through a hearing before an NLRB administrative law judge in Connecticut and approved by the judge yesterday, ends a long-running dispute which grew into a strike by almost 400 employees at four nursing homes in Connecticut operated by Spectrum Healthcare, LLC. Complaints issued by the NLRB Regional Office in Hartford alleged that, beginning in the fall of 2009, several months after the prior collective bargaining agreement expired, Spectrum discharged seven employees and suspended three others to retaliate against their union activities and to discourage other employees from supporting the union. In addition, one employee was discharged and seven others were suspended after the employer unilaterally changed its tardiness discipline policy without first bargaining with the union.

The complaints further alleged that in April 2010, employees at the four nursing homes — in Derby, Ansonia, Winsted, and Hartford — went on strike to protest the unfair labor practices. When the strikers offered unconditionally to return to work in late August, the employer refused to take them back. Under federal labor law, if a strike is called because of an unfair labor practice, employees are entitled to reinstatement after an unconditional offer to return to work.

The reinstated employees are due to return to the facilities this week.

The Spectrum Healthcare settlement is reflective of the growing number of NLRB enforcement orders against employers generally and health care providers specifically under the Obama Administration. The Obama Administration has close ties and has expressed its strong and open support for union and union organizing activities. The adoption of a series of union friendly labor law reforms was one of the key campaign promises of President Obama during his election campaign. While other legislative priorities and the change in the leadership of the House of Representatives appears to have slowed efforts to push through this agenda, it has not slowed the Administration’s efforts to support unions with strong enforcement activities. Empowered by a difficult economic and job situation and an awareness of the Obama Administration’s strong support for union organizing and other activities, unions are stepping up organizing efforts and more aggressively challenging employers actions.

Over the past few months, public awareness of the Obama Administration’s aggressive enforcement agenda on behalf of unions has drawn new attention as a result of the widespread media coverage of NLRB actions challenging Boeings planned relocation of certain manufacturing jobs intervention in a planned relocation of certain manufacturing operations. See, e.g., Acting General Counsel Lafe Solomon releases statement on Boeing complaint; National Labor Relations Board issues complaint against Boeing Company for unlawfully transferring work to a non-union facility. However, the Boeing and Spectrum Healthcare actions represent only the tip of the iceberg of the rising number of NLRB enforcement activities, most of which take place with little media or public attention.

Along side the Spectrum Healthcare and Boeing actions, in recent weeks, the NLRB also has been busy with several other enforcement activities. For instance:

On May 9 2011, the NLRB issued a complaint against Hispanics United of Buffalo (HUB), a nonprofit that provides social services to low-income clients, that alleges that HUB unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook ; and
On May 17, the NLRB secured a temporary injunction from a U.S. District Court in San Jose California against San Jose area waste hauling company OS Transport LLC, charged with engaging in unfair labor practices including the termination of a lead organizer and another Union supporter, retaliation against Union efforts in the form of unfavorable assignments, threats to Union supporters, and promises of improved treatment of employees who disavow the Union for the alleged purpose of defeating a union. o offer reinstatement to two drivers and restore full assignments to other drivers who had expressed support for a union during an organizing campaign. More Details here.,

In addition, in recent weeks, the NLRB also has:

Sued the state of Arizona on amendment limiting method for choosing union representation on May 5, 2011;
Secured an order requiring a Milwaukee job training center to pay back pay and reinstate workers fired for complaining about bounced paychecks on May 3, 2011;
Ordered a concrete supplier to rehire employees in Indianapolis on May 2, 2011;
Found a New York egg processing plant of unlawful interference and ordered a third election ohm April 27, 2011; and
Secured a settlement from Build.com of unlawful dischrage charges for firing employee based on Facebook comments on April 20

Amid this difficult enforcement environment, business leaders should exercise special care to prepare to defend their actions against both potential organizing efforts, to understand the types of actions and activities that may help fuel charges, and take steps to manage these and other union organization and other labor risks.

For Help With Labor & Employment, Employee Benefits Or Other Risk Management and Defense

If you need assistance in auditing or assessing, updating or defending your labor and employment, employee benefits, compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

NLRB To Review, Invites Briefs In Cases Involving Voluntary Recognition Agreements & Successor Employers

August 31, 2010

A newly constituted National Labor Relations Board in a narrow 3-to-2 vote has granted review and is inviting interested parties to file briefs in two sets of cases that question when a labor union’s support among employees can be challenged.

In one set of cases, the newly-constituted Board will reconsider the Board’s 2007 ruling that an employer that agrees to voluntarily recognize a union based on signed authorization cards must post a notice advising the employees that they have a right within 45 days of the notice to file a petition for an election to decertify the union or in support of a rival union, if they so desire.

In the second set of cases, Board is set to reconsider the Board’s rulings that a successor employer duty to recognize and bargain with a union recognized by its predecessor can be challenged by the employer, employees, or a rival union.

Get more details here.

The decisions made by the Board could have significant impacts on the responsibilities of employers to recognize and deal with unions. Employers and others concerned with labor-management relations should monitor, and if appropriate, consider sharing their perspective through a timely submitted brief in these matters.

For Assistance or More Information

If your organization needs assistance reviewing or responding to the request for comments or otherwise dealing with labor or other human resources compliance concerns, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 23 years experience advising employers and others about union organizing and certification, collective bargaining and other labor and employment, employee benefits, compensation and other workforce compliance, risk management and defense matters. She continuously advises employers about these and other related regulatory compliance, workforce management, operational, public policy, enforcement, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on labor, human resources and other workforce management matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

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Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

Employers Concerned About New Union Powers As NLRB Orders Union Elections In 31 California Health Care Facilities To Proceed

March 2, 2010

March 2, 2010

By Cynthia Marcotte Stamer

National Labor Relations Board (NLRB) Regional Director Alan B. Reichard has ordered elections to proceed between rival unions in about 31 health care facilities in northern California. The decision comes as President Obama and Democratic Leaders in Congress continue to avow their support for legislation intended to lower barriers to union organization.

The Monday, March 2, 2010 order by Regional Director Reichard sets the stage for elections between the Service Employees International /United Healthcare Workers-West (SEIU-UHW) and the National Union of Healthcare Workers (NUHW), which are competing to represent thousands of health care workers throughout California. Under the order, some elections may be preceded by hearings to clarify the voting group; others will proceed by agreement of the parties regarding such issues as voting dates and times and voter eligibility.

While the order allows elections in many facilities to proceed, approximately 32 elections are still blocked by allegations brought by SEIU-UHW against NUHW and its principals. These allegations remain under active consideration by the NLRB’s Office of the General Counsel.

To review the March 2, 2010, see here.

Health industry workers increasingly are viewed as attractive targets for union organization around the country. Many of these organizing efforts are helped by a series of NLRB decisions that ease the way for union organization of certain physician and other health care provider groups.

Many health care organizations and other employers are concerned about the potential financial and operational costs that organization of their workforce might produce. Whether concerned about the potential for future organization activities, confronting a union certification election or dealing with union representation in their workplace, health industry and other employers concerned about union organizing or representational activities must act carefully.

Federal labor law requires that employers tread carefully when dealing with union or other organizational activity. Existing federal law limits the actions that employers can take to deter or influence worker choices about whether to support or oppose a union certification campaign, to influence the certification of one union representative over another.

Legislation supported by the Obama Administration and the Democratic Leadership in Congress such as the Employee Free Choice Act of 2009 (H.R.1409 /S 560) would further expand these protections. If adopted as proposed, this legislation would further facilitate union organizing efforts and give union representatives new tools to pressure employers for contractual concessions to union negotiations.

Health industry and other employers concerned with these issues generally should carefully monitor and respond to proposed legislation and consult with qualified labor and employment counsel before discussing or taking other action in response to these activities to minimize risks of unintentionally running afoul of these requirements and to position their efforts for maximum effectiveness.

Curran Tomko Tarski LLP Can Help

If your organization need advice or assistance with these or other labor and employment, employee benefits, compensation or related matters, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has extensive experience advising and representing management about labor and employment, employee benefits, compensation and other related management matters. A nationally recognized author and lecturer, Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

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Posted by Cynthia Marcotte Stamer

Rare Court Order Telling Union To Stop Filing Grievances Example Of Employer Risks When Caught Between Competiting Unions

NLRB’s Nailing of Bel Air Hotel Reminder RIFs, Other Reengineering & Transactions Impacting Workforce Requirement Proper Risk Management

$1.25M NLRB Backpay Order Highlights Risks of Mismanaging Union Risks In Health Care & Others M&A Deals

NLRB Moves To Promote Non-Union Employee Use of Collective Action Rights By Launching Webpage

NLRB Challenges Mandatory Arbitration Provisions

NLRB Changes Certification Election Case Procedures

Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board

NLRB To Review, Invites Briefs In Cases Involving Voluntary Recognition Agreements & Successor Employers

Employers Concerned About New Union Powers As NLRB Orders Union Elections In 31 California Health Care Facilities To Proceed

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