Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

On June 29, 2011, opponents of Ohio Senate Bill 5 filed signed petitions with the Ohio Secretary of State.  The signed petitions seek a spot on the November 2011 ballot for a referendum that would prevent SB 5 from going into effect.  The petitions reportedly contain the signatures of 1,298,301 voters.  A total of 3,852,453 Ohioans voted in the November 2010 election for governor. 

Ohio law required signatures equal to at least 6% of the total votes cast in the 2010 election for governor.  The petitions represent 33.7% of that total.  Thus, even if only a portion of the signatures on the petition are verified, a process that must be completed by July 26, 2011, it is still likely that opponents have submitted the required number of signatures to have the question placed on the Fall ballot.

For the labor professional, the most significant part of this development is its impact on the effective date of SB 5.  Assuming that a sufficient number of signatures are verified, the effective date of the legislation will be delayed until after the general election in November.

• Email This
• Print

By Michael Griffaton

As readers of this blog know, in 770 West Broad AGA v. Zurz, 2011-Ohio-832, ¶ 25 (2011), the Tenth District Court of Appeals “decline[d] ... to address [770 West Broad’s] additional arguments regarding the constitutionality of Ohio’s prevailing wage statutes....”  770 West Broad appealed to the Ohio Supreme Court and asked the Court to determine whether the Prevailing Wage Law is constitutional and, even it is, whether that law applies to an office building that was renovated with private money. 

In a 5-2 decision issued on June 22, 2011, the Ohio Supreme Court declined to hear the appeal involving the constitutionality of the Prevailing Wage Law, and dismissed the appeal “as not involving any substantial constitutional question.” Justices Stratton and Lanzinger dissented.

• Email This
• Print

The NLRB has announced that it will hold an open meeting on July 18, 2011 to consider input from interested parties about its recently proposed rule on the election process.  The meeting will take place at the NLRB's headquarters in Washington, D.C. and will begin at 9 a.m.  Those interested in attending, or making a presentation, must notify NLRB staff no later than 4 p.m. this Friday, July 1, 2011.  Labor professionals seeking additional information about the meeting can locate details in the Federal Register or on the NLRB's website.

• Email This
• Print

It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.

The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing. 

Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. 

The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

According to an NLRB fact sheet, if adopted the proposed amendments would also:

·         Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.

·         Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.

·         Defer litigation of most voter eligibility issues until after the election.

·         Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.

·         Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

·         Make NLRB review of post-election decisions discretionary rather than mandatory.

The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.

Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at www.regulations.gov for the next 60 days.

• Email This
• Print

By Nelson Cary and Allen Kinzer

Yesterday, the U.S. Department of Labor (DOL) proposed to do away with an interpretation of the Labor-Management Reporting and Disclosure Act (LMRDA) that has prevailed for nearly 50 years.  At issue is Section 203 of the LMRDA, which requires, among other things, that employers file reports with the DOL when they enter into an agreement with a consultant or contractor (including attorneys) to persuade employees on the issue of unions.

Section 203(c) of the LMRDA contains an exception to the reporting requirement for "advice" given to an employer.  Since 1962, with the exception of a few days during the end of the Clinton Administration, the DOL's interpretation of the advice exemption provided that services of an attorney drafting letters or speeches to employees or reviewing communications the employer drafted to ensure legality were "advice" and thus not reportable.  In essence, so long as an attorney submitted oral or written material to an employer and the employer had the decision whether to accept or reject the advice, the attorney's activities were not reportable under the “advice exception."  If the attorney (or other consultant or contractor) met directly with employees, however, the activities became reportable. 

Under the proposed interpretation, the “advice exception” would be limited to advising employers what they may lawfully say to employees, employers' compliance with the law, or general guidance on NLRB practice or precedent. Reportable activities would now include any actions, conduct or communications on behalf of an employer that could directly or indirectly persuade workers concerning their right to organize and bargain collectively, regardless of whether the consultant has direct contact with workers and regardless of whether the employer accepts or rejects the proposals.  This interpretation specifically includes preparation of persuasive scripts, letters, videos, or other digital media for use by an employer or revisions to employer documents by an attorney or consultant. (See page 61 of DOL Notice (.pdf))

Further, under the new interpretation, persuader activities may additionally include:

• Training or directing supervisors and other management representatives;
• Creating employer policies to prevent organizing;
• Determining the timing and tactics of employer activities; and
• Providing seminars or webinars offered by attorneys or consultants that include "union avoidance" topics where guidance is offered to attendees.

(See page 62 of DOL Notice.)  In addition to this substantially different interpretation of the LMRDA, the DOL also proposes to make changes to the LM-10 and LM-20 forms.  These are the forms used by the employer and consultant, respectively, to provide the information the DOL requires them to report.  The DOL also wants to implement an E-Filing system.

The implications for the labor professional of the DOL's proposal are difficult to understate.  The proposed changes drastically reinterpret the reporting requirements for employers and attorneys/consultants and significantly amend the forms and instructions for reporting under Section 203.  The DOL's proposed interpretation expands the reach of the LMRDA and increases, therefore, the scope of conduct that could trigger potential criminal liability on the part of employers (and others engaged in persauder activity) who fail to comply.  A substantial chilling of an employer's right to free speech during a union organizing campaign, which Section 8(c) of the NLRA purports to guarantee, may be the ultimate result.

Labor professionals will want to act proactively.  Among other things, they should consult with their attorney to determine how the proposed interpretation impacts their existing relationships.  Employers or their trade organizationas may also want to submit comments to the DOL on the proposed interpretation.  The deadline for receipt of comments is August 22, 2011.  After comments are received, the DOL will finalize its interpretation, publishing it in the Federal Register.

• Email This
• Print

In non-right to work states, an employer and a union may lawfully agree to include a "union security" provision in their labor agreement.  This clause requires all employees to become a member of the union.  If an employee refuses to join the union, the contract typically requires the employer to terminate that employee.

Many years ago, however, the U.S. Supreme Court, in the Beck decision, ruled that the "membership" that may be required under the union security clause is simply the "financial core" of union membership:  paying money to the union to provide representation of the employee in their employment relationship with the employer.  An employee didn't have to pay for other activities of the union that were not related to this representational function.  The practical effect of this objection right for the employee, therefore, is to reduce the cost of union dues, with a corresponding reduction in dues income to the union.

To exercise the right to avoid "full" membership in a union, an employee must object.  Many unions have developed procedures to handle these objectors.  These procedures can sometimes require objectors to renew their objections on a periodic basis, such as annually.

Recently, the NLRB decided International Union, United Automobile, Aerospace & Agricultural Implement Workers of Am. Local Union # 376 (Colt's Manufacturing Co.), 356 N.L.R.B. No. 164 (May 27, 2011).  At issue was a union's procedure for objectors which required that the employee renew their objection to full union membership every 12 months.  The UAW's procedure provided notice of this right to object in a bimonthly magazine.  If an objection was received, the UAW would acknowledge receipt with a letter, which told employees their objection would expire in one year, but that they could renew the objection during a 30-day window period prior to the one year mark.  The union also sent a reminder letter to the employee 15 days before the one year period expired.  If they failed to renew, the employee would automatically begin paying full dues.  But, the employee could thereafter file an objection, which would again be honored for one year.

The NLRB, in a 2-1 decision, held that this procedure was permissible.  Analyzing the facts under a duty of fair representation standard, the NLRB found that the burden on an objecting employee's rights was minor.  First, the NLRB noted that the union sent out a number of letters to the employee that highlighted the one year time limit and the need to renew the objection.  Second, although there was a 30-day window period, if an objection was received outside of that period, it was still given effect for a full twelve months. 

Member Hayes, again writing a lone dissent, came to a different conclusion.  He relied upon three points:

• The burden on the employee was substantial as it imposed an affirmative obligation to renew an objection at the risk of forfeiting, even for a short time, the employee's legal right to refrain from subsidizing non-representational activity.
• The requirement was discriminatory, and hence a violation of the union's duty of fair representation, because the annual renewal requirement was imposed only on those employees who want to refrain from full membership; there was no annual renewal obligation for those joining the union.
• The annual renewal obligation was a form of coercive interrogation of those employees who objected to the payment of full union dues.

The NLRB's decision will primarily interest those labor professionals working in a unionized environment.  What it means is that employees in the bargaining unit who do not want to pay for the union's activities that are not related to representation will need to make even more of an effort to maintain that status.  As the facts of Colt's Manufacturing itself suggest, it is questionable whether employees will do so.  The two employees who filed charges against the UAW both wanted to remain objectors for a long term.  One wanted to remain an objector for three years and the other "until the UAW is decertified."  After going through the UAW's process, however, there was no evidence presented that either employee continued to object.

• Email This
• Print

Ohio's biennial budget bill, Substitute H.B. 153, continues along the legislative path.  It passed the House and is currently pending before the Senate Finance Committee.  As readers of this blog know, the bill proposes some substantial changes to Ohio's prevailing wage law.

Before passing the House, legislators changed a few of the prevailing wage provisions in the bill.  Specifically, legislators:

• reduced the proposed $5 million threshold for certain projects to $3.5 million;
• removed language that would have prohibited a state institution of higher education from requiring prevailing wage on a construction project; and
• added a provision exempting certain projects undertaken by port authorities in Ohio from prevailing wage requirements.

The provisions regarding public/private partnership development projects remained unchanged after the final vote in the House. The same is true for the provisions that alter the enforcement mechanism for prevailing wage complaints.

Currently, as H.B. 153 awaits action by the Senate Finance Committee, the prevailing wage portions of the legislation are the same as they were in the House.  It is possible, however, that the prevailing wage law portions of the bill will be addressed in the days ahead.

The state's fiscal year begins on July 1.  Thus, labor professionals should know this month whether Ohio law on prevailing wage requirements will be relaxed, and if so, what form those changes may take.

• Email This
• Print