NLRB PROPOSES RULE CHANGES TO BETTER ADMINISTER NATIONAL LABOR RELATIONS ACT

FROM:  NATIONAL LABOR RELATIONS BOARD 
The National Labor Relations Board Proposes Amendments to Improve Representation Case Procedures
February 4, 2014

The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.

In announcing the proposals, Pearce said: “The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking. With a Senate-confirmed five-member Board, I feel it is important for the Board to fully consider public comment on these proposed amendments, along with the comments we previously received in 2011. These amendments would modernize the representation case process and fulfill the promise of the National Labor Relations Act.”

“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”

“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”

The reforms the Board will propose would:

allow for electronic filing and transmission of election petitions and other documents;
ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;

streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;

include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
consolidate all election-related appeals to the Board into a single post-election appeals process.

The previous NPRM was published on June 22, 2011. After considering the input provided in response, the Board had announced on December 22, 2011 that it was going to implement a final rule adopting some of those proposed amendments and defer the remainder for further consideration. That final rule was invalidated by a District Court ruling that it had been adopted without a validly constituted quorum. The Board’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013

THIS IS NATIONAL LABOR RIGHTS WEEK

FROM:  U.S. NATIONAL LABOR RELATIONS BOARD
NLRB and National Labor Rights Week: Working to Fulfill the Promise of the National Labor Relations Act

August 25 through August 31 is National Labor Rights Week.  Throughout the country, staff members working in regional offices of the National Labor Relations Board (NLRB) are meeting with immigrant workers, community groups, employees and employers to discuss the rights guaranteed by the National Labor Relations Act.

“We are placing a particular emphasis on educating Mexican workers employed in the United States by partnering with Mexican consulates in many communities,” said NLRB Chairman Mark Gaston Pearce.  “Along with other federal labor agencies, including the Department of Labor and the Equal Employment Opportunity Commission, we are participating in events designed to ensure that Mexican employers and workers in the United States understand their rights and obligations under American law.”

“Since its passage in 1935, the National Labor Relations Act has promised generations of workers the right to join together, with or without a union, to seek improvements and a voice in their working lives,” notes Acting NLRB General Counsel Lafe Solomon.  “But that promise can only be fulfilled if individuals understand and are able to exercise their rights under the law.”

Among the events taking place this week:

In California, NLRB Regional Directors will attend the Los Angeles and San Francisco Mexican Consulates’ opening celebration for Labor Rights Week, representatives will hold briefings on the NLRB for the Los Angeles consulate’s professional staff, and attorneys will participate in a telethon designed to provide callers with information on their rights and the agencies best suited for assisting them; in San Francisco, staff will participate in outreach programs hosted by the consulate.

In Illinois,  the Regional Director signed a Local Agreement with the Consul General of Mexico in Chicago as part of the opening ceremonies for Labor Rights Week, while Regional staff will participate in numerous events throughout the week at the consulate and throughout the community;

In New Jersey, the Regional office is participating in the Mexican Consulate’s New Brunswick Labor Week events, scheduled for August 27 and 29;

In Raleigh, North Carolina, attorneys from the Regional office will participate in a presentation at the Mexican Consulate, including an overview of the rights of employers and employees under the NLRA;

In Oregon, NLRB staff will pass out literature and meet with the public at booths in The Dalles, Portland and Woodburn;

In Philadelphia, Pennsylvania, attorneys from the Regional office will participate in a briefing sponsored by the Mexican Consulate, highlighting the work of the NLRB and responding to questions;

In Texas, Regional staff are participating in events planned in Dallas, Houston and San Antonio;

In Washington State, representatives from the NLRB Seattle office will discuss employee and employer rights and obligations at a booth located in Centro de la Raza.

“These activities around the country build on the letter of agreement I signed last month with Mexican Ambassador Eduardo Medina-Mora Icaza,” Acting General Counsel Solomon said.  “We are committed to working together to provide outreach, education, and training on the rights of workers under the National Labor Relations Act.”

“All of this week’s activities will help to guarantee the right of workers to engage in protected-concerted activity to improve their working conditions without fear of discrimination, harassment or retaliation,” Chairman Pearce said.

COURT ENFORCES NLRB ORDERS AGAINST RELCO LOCOMOTIVES, INC., REGARDING TERMINATED EMPLOYEES

FROM:  U.S. LABOR DEPARTMENT 
Eighth Circuit Court of Appeals Enforces NLRB Orders Against RELCO Locomotives, Inc.

In a decision issued on August 20, 2013, the Eighth Circuit Court of Appeals enforced two decisions and orders issued by the National Labor Relations Board against Relco, Locomotives, Inc.  In enforcing the Board’s Orders, the Court agreed that Relco illegally terminated a total of eight employees in violation of the National Labor Relations Act.

Relco repairs and rebuilds locomotives at its facility in Albia, Iowa.  In 2009, employees in the Albia facility sought union representation.  Relco suddenly discharged the leading employee Union adherents.  In addition, in 2010, Relco terminated two other employees who were involved in protests that Relco was overcharging employees to clean their uniforms.  After an investigation, Region 18 of the Board, located in Minneapolis, issued a complaint alleging the four terminations violated the National Labor Relations Act.  The legality of the terminations was litigated before an administrative law judge on September 14 through 16, 2010.

In 2011, employees again sought union representation.  In March 2011, Relco terminated two additional employees who not only were involved in the renewed union organizing, but who also testified in support of the discharged employees in the September 2010 NLRB proceeding.  Around the same time, Relco terminated another two employees who expressed concerns about job security when there were rumors in the plant that the company had terminated another employee.  Following a second investigation, Region 18 issued a second complaint against Relco alleging that the four additional terminations also violated the Act.  The legality of these four terminations was litigated before a different administrative law judge than the first complaint, on August 9 and 10, 2011.

In enforcing the Board Orders, the Eighth Circuit stated that there was substantial evidence that Relco terminated two employees in 2009 because of their union support; that Relco terminated two other employees in 2010 because of their protests involving overcharging for cleaning work uniforms; that Relco terminated two employees in 2011 because of their testimony before the NLRB in the case involving the 2009 terminations; and that two additional employees were illegally terminated because of their discussions and concerns about the rumored termination of another employee.  In doing so, the Court noted that the National Labor Relations Act “provides protections to workers who seek to form a union or otherwise engage in concerted labor activities.”

Finally, the Court (Circuit Judge Smith dissenting) found that Relco waived its right to challenge the Board’s decision on the basis that the Board panel deciding the cases was not constitutionally appointed.