CDW Members:
The National Labor Relations Board and Department of Labor have been busy this week on several initiatives designed to promote the EFCA Agenda, and we wanted to update you on these important developments as well as some changes at CDW.
· NLRB Issues Proposed Rule on Posting Requirement On December 20, the NLRB released a Notice of Proposed Rulemaking (NPRM), which would require employers subject to the National Labor Relations Act (NLRA) to post a notice in the workplace informing employees of their rights under the NLRA.
Under the NPRM, employers would face various sanctions for failing to post the notice, including (1) being charged with unfair labor practice; (2) having the time limits for filing of other unfair labor practice charges against the employer extended; and (3) having the Board consider the failure to post the notice as evidence of unlawful motive in other unfair labor practice cases. The NPRM and the NLRB's fact sheet are available on the Board’s website and will be published in the December 21 Federal Register. President Obama issued an Executive Order in 2009 that required government contractors display such a poster. NLRB will use the same language as in the DOL poster, a copy of which is available here.
Board Member Brian Hayes (R) filed a dissent to the rulemaking, asserting “the Board lacks the statutory authority to promulgate or enforce,” the NPRM. The Board will take comments on the NPRM for 60 days.
· NLRB Announces Increased Enforcement Initiative On December 20, the NLRB Acting General Counsel issued a memorandum announcing a new enforcement policy against employers accused of unlawful conduct during union organizing campaigns.
The memorandum instructs regional NLRB attorneys to seek the following remedies in those situations: (1) that a management official from the company read or be present when Board official reads a notice announcing that the company violated the employees right to organize and the will not do so again in the future; and (2) grant the union access to the company bulletin board or electronic equivalent, including email or intranet, and a list of employee names and address to facilitate union communication with employees.
The memo also states that in cases where the regional attorneys find the employers' conduct had a particularly severe impact, the regional attorney may look to pursue additional remedies, including: "granting a union access to non-work areas during employees’ non-work time; giving a union notice of, and equal time and facilities for the union to respond to, any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election."
The new policy would expand the use of what have been traditionally extraordinary or exceptional remedies and, in some cases, introduces new remedies by stretching existing precedent. This builds upon the Acting General Counsel's September 30 Memorandum announcing the Board would be pursuing more injunctions in cases where it believes the employer violated the law during an organizing campaign. CDW will be monitoring the NLRB’s new policy and keep members apprised of further developments.
· CDW Sign on Brief in Roundy’s Next week, we will be circulating a draft and asking for groups to sign on to CDW’s brief in Roundy’s Inc. and Milwaukee Building and Construction Trade Council. At issue in the case is the extent to which an employer may deny non-employee union organizers access to the workplace, where the employer has allowed access to other non-employee individuals or groups, such as the United Way. It appears the Board may be looking at both physical access and electronic access via email, intranets, etc.
As you may remember, several of the "EFCA-lite" proposals, such as the one offered by soon-to-be-former Representative Sestak, would have provided unions with greater access to employer work sites. CDW argued against these proposals, rightfully claiming they would have violated employer property rights and allowed the non-employees to disrupt the workplace.
· DOL Releases its Semi-Annual Regulatory Agenda On December 20, DOL released its semi-annual regulatory Agenda, which provides some indication as to when DOL plans to publish proposed and final rules.
While many of the proposals are concerning, one particularly troubling to CDW members may be the Office of Labor-Management Standards plans to issue a proposed rule in June 2011 revising reporting requirements for costs related to employer communications to employees during organizing drives. Under current law, employers and consultants are not required to report activities classified as advice. DOL has said it intends to narrow the advice exemption.
A Change in CDW Leadership Lastly, I wanted to let you know that my tenure at the helm of CDW is coming to an end. On January 3, I’ll begin my new job as coalitions director for Kevin McCarthy, the House Republican Whip.
Geoff Burr, Vice President of Federal Affairs at Associated Builders and Contractors has stepped up and graciously offered to lead CDW; therefore, I am handing the keys over to Geoff so that the coalition can continue its important work in leading the employer community’s fight against the EFCA agenda.
Geoff is cc’d on this email, and all future CDW-related business should be taken up with him.
On a personal note, I’d like to thank everyone for their strong support of CDW, and activism in the fight to defeat EFCA. It has been a great opportunity to be part of such a successful coalition effort, and I hope I have the chance to work with you in the future.
Thanks,
Brian Worth
