Tag Archives: Labor Law

Proposed NLRB Election Rule Changes – Position Statements

Last week, I commented that President Obama’s recent appointments to the National Labor Relations Board could mean significant changes for employers, particularly as it relates to union organizing by employees.  As one particular example, I referred to new election guidelines that have been proposed but that have not been enacted yet.  These new rules would make organizing campaigns faster and would make it easier for unions to launch and prevail in organizing campaigns.

Today, I will highlight the first of several notable rule changes, to explain why I say that.  Let’s look first at the proposal to require pre-election hearing position statements.

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What Impact Will An Obama Administration Have On Labor & Employment Law – Part 2

I previously wrote that President-elect Obama is certain to make a mark on the employment law landscape. An article at the New York Law Journal also has a nice summary of several more detailed employment law changes that Obama is likely to seek.

Notably, the author alleges that Obama would seek to expand the FMLA to provide authority for leaves of absence for other purposes, including parents’ attendance at childrens’ school activities. Also, according to the Author, Obama supports a federal mandate that all employers provide a minimum number of paid sick days.

With respect to labor laws, in addition to what I previously wrote about the proposed elimination of the secret ballot union election, Obama has proposed limiting the definition of “supervisor” under the National Labor Relations Act so that more persons would be considered part of a union.

The author also makes one other very good point. Ignoring all of the legislative efforts to be expected, President-elect Obama also is likely to appoint at least one Justice to the United States Supreme Court. A change in the Court could also have a significant impact on labor and employment law.

Stay tuned, folks….

What Impact Will An Obama Administration Have On Labor & Employment Law

With the historic victory by Barack Obama in last week’s Presidential Election, there is sure to be an impact on the labor and employment law landscape.

Obama has made labor and employment issues important parts of his campaign platform, and with his party controlling both Congress and the White House he should have every opportunity to implement at least some of his plan.  Following is a look at just a few of the major labor and employment issues we can expect to see addressed in the coming years.

Employment Discrimination

According to the Obama-Biden campaign website, an Obama Administration will work to expand employee rights under various anti-discrimination statutes.  According to the website, “Obama and Biden will work to overturn the Supreme Court’s recent ruling that curtails women’s and racial minorities’ ability to challenge pay discrimination.”  Although the site does not mention any case by name, it is likely that Obama is referring to the Court’s May, 2007, decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

In Ledbetter, the Court ruled 5 to 4 that an equal pay claim must be brought within 180 days (the applicable statute of limitations period) of the events that initially caused the discriminatory pay.  As a result, Ledbetter, who had worked for Goodyear since 1979, was unable to pursue her claim based on the inequality of raises given throughout her employment.  Ledbetter had argued unsuccessfully that each paycheck she received was evidence of a continuing violation of the Equal Pay Act.

According to Obama, then, his administration will work to overturn this decision and, in turn, greatly expand the ability of an employee to reach back to violations that occurred years and even decades ago.

Additionally, the Obama campaign site says, “[Obama and Biden] will also pass the Fair Pay Act to ensure that women receive equal pay for equal work and the Employment Non-Discrimination Act to prohibit discrimination based on sexual orientation or gender identity or expression.”

While current federal law already requires that women be paid equal pay for equal work, the proposed Employment Non-Discrimination Act would expand the scope of the current collection of federal anti-discrimination laws to add additional protections.  While some state anti-discrimination laws protect employees from discrimination on the basis of sexual orientation or gender expression, no federal law includes those protected classes.

Organized Labor

Although the campaign website does not seem to include any reference to it, Obama was a co-sponsor of, and has promised that as President he would sign, the ironically named Employee Free Choice Act.  I have previously written about this proposed law that would – despite the clever name – eliminate employees’ free choice and the right to a secret ballot election in some union organizing campaigns.

The law, which would make it easier  for unions to organize various workplaces, would be huge win for labor unions, whose membership has been declining for decades.  It’s no wonder the AFL-CIO spent so much money on their Anti-McCain effort.  Despite the fact that there is little information on the official Obama-Biden campaign site, the AFL-CIO also has put together a summary of Obama’s position with respect to the bill.  It appears that Obama either does not understand the current law or is intentionally misleading in an attempt to build support the bill, but that is probably another topic for another day.

In short, the passage of this new law would make it much easier for unions to organize, which would mean many new unionized workplaces.  Sources tell me that there may not be enough political support to allow the passage of this bill, but it appears to remain at least a goal of the new administration.


Clearly, there will be other changes in a new administration.  These few examples show pretty clearly, though, that President-elect Obama intends to expand employee rights both through new legislation and through the broader and more vigilant enforcement of current law.

EDIT: View Part 2 of this story

ADA Amendments Adopted

Recently, President Bush signed the ADA Amendments Act (ADAA Act), which clarifies and broadens the protections afforded by the Americans with Disabilities Act of 1990.  Recent US Supreme Court cases have favored employers in the interpretation of the law, but the recent amendments attempt to make clear that Congress wants Courts to interpret the law in a manner that provides more protection to workers.

The People Wise blog has a nice summary of the changes as found in the law.  As with all other important employment decisions, you should contact an attorney to assist in making decision that have ADA implications.

PA Court: Bourough Did Not Need to Bargain With Police Union Before Prohibiting Smoking

Recently, the Pennsylvania Commonwealth Court ruled, in the case of Borough of Ellwood City v. Pennsylvania Labor Relations Board, that the Borough of Ellwood did not violate its statutory duty to bargain with the police union when it adopted an ordinance prohibiting smoking in all Borough buildings and on all Borough owned property.

Previously, the Borough police officers had been permitted to smoke in the workplace.  Under most circumstances, a determination that smoking no longer is permitted in the workplace would be a mandatory subject of bargaining, as it would affect a change in terms and conditions of employment.

This time, however, the Borough argued that the ordinance was a generally applicable ordinance that was adopted pursuant to the Borough’s police powers and that the police must be required to obey the ordinance themselves if they are going to enforce it with respect to the rest of the public.

The Court agreed, stating that the Borough had an “overarching policy of promoting the health and welfare of its citizens” and that

In view of this fundamental concern relating to the “direction of he enterprise,” the interest of the Borough overcomes the interest of the employees in maintaining the prior practices relating to smoking.

The Court clearly continues to recognize the right of an employer, albeit in certain limited situations, to implement changes of a purely managerial nature, without bargaining with the applicable union, as long as the changes relate to the “direction of the enterprise.”  In other words, the more central that a managerial goal of the employer is to the function of the entity, the less likely the entity will be required to bargain before making a change.  Of course, you should seek counsel’s advice before making any changes without bargaining, but it is good to see that the Court continues to protect the ability of a municipality or school district to manage its operations.

Altoona Mirror: Profs Claim Employer Desire for “Open Shop” is Rare

According to a report in Sunday’s Altoona Mirror, some experts believe that the Altoona Regional Health System Board is taking a rare position in its desire that the recently certified nurse’s unit remain an open shop.

As a part of the ongoing negotiations there, the union is demanding an “agency shop,” in which members of the collective bargaining unit who are not union members would be forced as a condition of employment to pay to the union a representation fee equal to about 87 percent of the union dues. The hospital has denied this request, seeking instead an “open shop,” which would mean that employees would be free to join or not to join the union, and would not be forced to pay anything to the union if they do not join.

While I might agree with the various professors that an agency shop is not that unusual of a request and probably is more likely to be in an agreement than not, as a practitioner who represents employers in collective bargaining I can assure you that the desire of an employer to keep an open shop is not as rare as the professors seem to indicate.

The article does raise an important point, however, with respect to one common misconception. Many people mistakenly believe that because Pennsylvania is not a right-to-work state (meaning that there is no state law prohibiting agency shops or union shops, in which employees not only must pay the representation fee but also must join the union and pay full dues), an open shop is not possible. An open shop is very much possible, as you can see from the ARHS story, depending on how much the employer wishes to fight for it.

It will be interesting to see whether the ARHS Board continues to maintain its request for an open shop and to see whether the nurses in fact strike as threatened. We’ll keep an eye on it.

Unions to Spend $53 Million in Anti-McCain Effort

I will be the among the first to defend the right of free expression that one has to support or oppose a political candidate of his or her choosing. But it is interesting to me that the AFL-CIO would spend $53 million on a program to defeat John McCain for the presidency.

Note that I said “interesting,” and not “surprising.”

That is quite a lot of money to spend. That’s quite a lot of money to have and to be able to spend. Especially when, as polls demonstrate, there is far from universal support among union members for the democratic candidates still in the race. Surely the membership of the unions that make up the AFL-CIO could think of more effective ways to spend $53 million – for example, on efforts that actually benefit members directly or that would be universally supported by the membership?

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