NLRB Updates

NLRB Updates

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NLRB Postpones Employee Rights Poster

Deadline Delayed, Congressional Bill Introduced

Following lawsuits filed by AH&LA through the Coalition for Democratic Workplace and several other organizations, the National Labor Relations Board (NLRB) has postponed the Notification of Employee Rights requirement until January 31, 2012, from the initial date of November 14, 2011.

As of January 31, 2012, the NLRB will require employers to post a notice of employees’ rights to unionize, according to the final rule on Notification of Employee Rights under the National Labor Relations Act (NLRA) issued by the NLRB.

A breakdown of the NLRB Poster Rule, including direction on what hoteliers need to do, can be found on AH&LA’s Website.

Next Steps:

AH&LA has been working with Members of Congress to explain the dangerous implications of the recent NLRB decisions. In response, House Committee on Education and the Workforce Chairman John Kline (R-MN) introduced the Workforce Democracy and Fairness Act which would ensure that employers have a voice and are employees are able to participate in a fair union election process. Specifically, the bill:

  • Ensures employers are able to participate in a fair union election process. The legislation provides employers at least 14 days to prepare their case to present before a NLRB election officer and an opportunity to raise additional concerns throughout the election hearing.
  • Guarantees workers have the ability to make a fully informed decision in a union election. No union election will be held in less than 35 days, giving workers a chance to hear both sides of the debate. Important issues that can determine how a worker votes will be decided before ballots are cast.
  • Reinstates the traditional standard for determining which employees will vote in the union election, restoring a standard that was developed through years of careful consideration and Congressional
  • Protects workers’ privacy by empowering workers to choose the type of personal contact information that is provided to the union.

For more information, visit CDW’s Website.

Court Blocks Ambush Elections
On Monday, May 14, 2012, the United States District Court for the District of Columbia agreed with AH&LA and the Coalition For A Democratic Workplace (CDW) in a lawsuit brought against the National Labor Relations Board (NLRB) – blocking the ambush election rule. This huge win for the lodging industry means that workplace representation elections will once again be governed by the long-standing process that was in place prior to the ambush election rule.

In response to the suit brought by CDW and AH&LA, the federal court agreed with the arguments made by CDW in seeking to protect the rights of workers and blocked the ambush election rule stating that since the rule was published without a quorum of at least three NLRB commissioners being present, “the Board lacked the authority to issue it, and, therefore, it cannot stand.”

Since the NLRB issued the ambush rule without the required number of commissioners present, the court did not have to decide whether the NLRB otherwise had the authority to issue the rule or whether it was a desirable policy outcome. AH&LA applauds this decision which protects the rights of workers and employers as well as the integrity of our federal labor laws.

For more information on the ambush election rule, click here or here.

Card Check Legislation and Unions
Card-Check legislation is a serious union threat to your workplace. AH&LA Governmental Affairs’s eight-minute online video teaches your managerial staff about card check, what this proposed law will do to a hotel’s work force and how it will take away your employees’ secret-ballot rights. Learn about organized labor’s plans to unionize America’s small and large lodging properties. View the AH&LA video

Coming Into Focus: An Overview Of The NLRB’s Most Recent Guidance On Social Media And Confidentiality Policies
By Karen L. Luchka
In the last ten months, the National Labor Relations Board has issued three separate reports on social media. The first two reports, which were released in August 2011 and January 2012, left no doubt that the Board was paying close attention to employers’ treatment of social media use by employees and scrutinizing policies that restricted employees’ use of social media. The two reports focused primarily on employers’ discipline of employees for content posted on social media sites and left many employers feeling like the Board’s position on what was acceptable content for social media and related policies was lacking clarity. Read full article from Fisher & Phillips »

April 17th Brings More Bad Luck for NLRB
In the Legal Alert we published yesterday morning, (“Friday the 13th An Unlucky Day For the NLRB”) we referenced the decision of South Carolina District Court Judge David C. Norton last Friday afternoon, which marked the first time the NLRB’s proposed notice-posting rule has been invalidated in its entirety. We also predicted that, in light of that April 13th decision, the U.S. Court of Appeals for the DC Circuit (which had been hearing arguments on the appeal of the surviving parts of this rule from another U.S. District Court) now “has an opportunity to lend some clarity to the picture in the days to come.” Read full alert from Fisher & Phillips

Friday The 13th An Unlucky Day For The NLRB
For months now, the business community has been bracing for the implementation of two key pro-labor initiatives on April 30, courtesy of the National Labor Relations Board: 1) an expedited election rule designed to cut the period between petition and election in half; and 2) a first-ever mandatory-posting requirement that would educate employees as to their representation rights, while laying the groundwork for unfair labor practice charges and extended limitations periods against those employers who fail to comply. The first initiative is proceeding on course, despite ongoing challenges that will ultimately be played out before the courts. But this past Friday, the NLRB’s posting requirement was dealt a serious blow by the U.S. District Court for South Carolina. In a 31-page decision that left little doubt as to his position, Judge Norton invalidated the Board’s posting rule in its entirety, finding a lack of statutory authority in violation of the Administrative Procedure Act. In so doing, he granted summary judgment to both the South Carolina and U.S. Chambers of Commerce. Read full alert from Fisher & Phillips

Responding To The (New) NLRB
By Steven M. Bernstein
For the past 75 years, the National Labor Relations Board (NLRB) has been responsible for conducting union representation elections and investigating unfair labor practice charges. Because the agency is comprised of members who are appointed by the standing President, it has been vulnerable to the occasional pendulum shifts that flow from the political process. That being said, the agency has traditionally steered clear of major controversies by confining itself to the application of long-standing principles that have typically stood the test of time. Read full article from Fisher & Phillips

Court Invalidates Sections of NLRB’s Recent Notice-Posting Rule
Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated key provisions of the National Labor Relations Board’s “Notification of Employee Rights” rule, under which all covered employers would have been required after April 30th of this year to post an 11″ x 17″ poster, or else to face possible legal consequences. While she left the actual posting requirement intact, she ruled that the proposed penalties attached to the Board’s rule were unlawful under the National Labor Relations Act (NLRA). Read full alert from Fisher & Phillips

It’s 2012 And The NLRB Is Off To A Fast – And Controversial – Start
By Joseph J. Brennan
The 2011 calendar year was one of the more interesting years for the National Labor Relations Board (NLRB). The Board became a lightning rod for controversy and partisan politics due to its controversial decisions to utilize its rarely-used rulemaking authority to rewrite the rulebook on union elections and to require employers to post what many consider a pro-union National Labor Relations Act (NLRA) poster in its workplace. Read full labor article from Fisher & Phillips »

NLRB Moving Forward With New Election Rules
A union organizer’s dream would consist of a “quickie” election in a gerrymandered unit comprised mostly of card signers. Having established such a beachhead, the union could then engage in an ongoing game of dominos, with one company department after another falling in line. In a recent decision (Speciality Healthcare) and a propsed rule change, the Democratic majority of the National Labor Relations Board (NLRB) has signaled its intention to fulfill the organizer’s dream. Read the full article from Fisher & Phillips

If You Build It . . .
By John D. McLachlan
It comes as no surprise that employers in the last several years have been forced to focus on survival in an extremely difficult environment. There have been sharply decreased (or nonexistent) profit margins, falling sales, reorganizations, reductions in force, retrenchment and reversion to the mean. Overall business conditions aren’t really much better now than they were three years ago and nobody really knows when they will improve. With all of these business challenges, who needs another? It is with great trepidation that we suggest the imminent arrival of yet another challenge for the employers of America – unionization. Read full labor letter article from Fisher & Phillips

Going Over The Top At Disneyland: Sleazy Union Tactics In “The Happiest Place On Earth”
By Mark S. Ross
Disneyland is known as “The Happiest Place On Earth.” But UNITE HERE Local 11, the Union that represents the park’s 2,100 hotel employees, is not in a happy place. For close to three years now, it has been bargaining over a new labor contract. During that time, the union has staged protests and walk-outs, had its members engage in a week-long hunger strike and gone on a one-day quickie strike. But no matter what the union has done to force the issue, no new labor agreement has been reached. Read full hospitality update from Fisher & Phillips

SEIU Paints A Bull’s Eye On Fast Food Industry
By Mark S. Ross
It’s common for fast food workers in Canada, Germany, France and Australia to be represented by a union. But in America less than 2% of fast food workers are unionized – and most of them work in stores located on college campuses, in hospitals or in government buildings where labor unions are commonplace. Indeed, until very recently, the conventional wisdom among union leadership was that employees working in freestanding fast food restaurants were simply too short-sighted, too transient, or too timid, to be viable targets for union organizing. Accordingly, even though it promises the possibility of hundreds of thousands of new union members, the fast food industry has gone largely ignored by unions. All of that may soon change. Read full hospitality update from Fisher & Phillips

UNITE-HERE Ups The Ante Against Hotels
By Howard A. Mavity
Hotels and other entities should expect unions to routinely use OSHA citations as an organizing tool and a way to harass hospitality employers. In a recent Hospitality Update, we described a May 12 Houston Chronicle article complaining about the allegedly high rate of ergonomic injuries suffered by hotel employees. Read full hospitality update from Fisher & Phillips