Labor and Employment 

Many threatening regulations, case decisions and proposed rules have been released that could drastically hamper the operations of retailers and the larger business community.  Among the issues that could have the biggest impact upon retailers are:

• The NLRB is heavily stacked with pro-labor advocates, such as Craig Becker, who are committed to moving Big Labor’s priorities through case decisions and the regulatory process – including quickie elections, cyber card check, micro-bargaining units, and other pro-union priorities.
  
• As such, the NLRB issued the much anticipated proposed rule on Quick Elections on June 22, 2011. For more than 15 years, employers have enjoyed, on average, 42 days to prepare employees with information and materials ahead of a union certification election. Now the NLRB is doing Big Labor’s bidding by proposing a shorter election period to capitalize on the well-known fact that the shorter the time between when an election petition is filed and an election is actually held, the greater the likelihood that the union wins certification. 
  
  On November 30, the NLRB held a vote to amend its proposed rulemaking on ambush elections.  The vote was limited to portions of the rulemaking that would limit litigation surrounding union elections.  We expect a final ruling out of the NLRB by the end of the calendar year. 
  
  However, in anticipation of this ruling, Chairman John Kline (R-MN) introduced the “Workforce Democracy and Fairness Act” that would address not only ambush elections, but Specialty Healthcare as well.  In the case of ambush elections, the legislation would provide employers with at least 14 days to prepare their case for the NLRB and require a period of at least 35 days for a campaign prior to an election.  Earlier this year, RILA testified at a hearing in favor of this legislation.  The legislation passed the House of Representatives on November 30 by a vote of 235-188.
  
• In April, the NLRB also issued a complaint against the Boeing Company’s decision to move a second production line to Right to Work state South Carolina.  The NLRB argued that the company was retaliating against the union in Boeing’s first production line, which often goes on strike. The NLRB’s complaint is extremely concerning to the business community because, if issued in the unions favor, will set a precedent for the government to intervene in the terms on which a business can make the decision to move to another state or under what terms you expand and grow your business.
  
  The talks between Boeing and the Machinists union that began in October, have reached a deal in the case that will secure the Boeing plant in South Carolina and end the NLRB complaint.
  
  In September, the House of Representatives passed H.R. 2587, the Protecting Jobs From Government Interference Act, which was introduced by Congressman Tim Scott (R-SC) by a vote of 238-186. This legislation would prohibit the National Labor Relations Board (NLRB) from ordering any employer to close, relocate or transfer employment under any circumstance.
  
  Following the House vote, the Senate Appropriations Committee rejected an amendment sponsored by Lindsey Graham (R-SC) to deny funding to the NLRB to pursue Boeing’s production plant in South Carolina. Senator Graham also introduced S. 1523, as a companion bill to Congressman Scott’s legislation. RILA does not expect further activity to take place in the Senate at this time.
  
• The NLRB also issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting an "Employee Rights Posting Notice."  The poster fails to provide key information about employees’ rights to decline to contribute dues related to political purposes, to decertify a union or under state right-to-work laws, where applicable.  Originally scheduled to officially take effect on November 14, 2011, the implementation was delayed by the Board until January 31, 2012.
  
  The National Association of Manufacturers (NAM) has filed a lawsuit in federal court challenging the legality of the new notice-posting Rule. NAM’s complaint in the lawsuit, filed in the U.S. District Court for the District of Columbia in September, alleges that the NLRB is acting beyond its jurisdiction and asks the court to set aside the new Rule in its entirety.
  
  Earlier this year, RILA submitted a comment letter. One of the modifications made to the Rule, potentially as a result of these comments, was that employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications. Instead, employee rights notices will be required where other workplace notices are typically posted.
  
  Following its decision, Congressman Scott DesJarlais (R-TN) introduced H.R. 2854, and Senator John Thune (R-SD) introduced S. 1666. Both bills are designed specifically to repeal this NLRB rule.  RILA does not expect these bills to make it to their respective floors for a vote.
  
• In August, the National Labor Relations Board (NLRB) made public its 3-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile case.  The Board found that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other non-professional employees, citing that such facilities will now be subject to the same "community-of-interest."  While the decision adopted the new approach for health care facilities, its impact will expand how appropriate bargaining units are determined in virtually all non-hospital settings.  Unions will now be able to target a unit of employees most likely to support the union. Prior to its decision, the Board invited interested parties to file amicus briefs by February 22.  RILA submitted an amicus brief that has been covered in the press and received the attention of key law makers.
  
  The key issue is whether employees performing the same job at a single facility presumptively constitute a bargaining unit for organizing purposes, regardless of any commonality those employees share with others outside the proposed unit.  Simply put, the decision will make it easier for unions to organize by cherry-picking a unit composed of the subset of employees most likely to organize regardless of whether those employees constitute a practical unit (i.e. cashiers, stock room personnel or others by job category). 
  This “mini-bargaining unit” scenario would pose numerous challenges for retailers.  For example, the employer could face separate wages, schedules, benefit packages and other administrative demands for similarly situated employees.  In addition, it could greatly limit an employer's ability to cross train and meet customer and client demands via lean, flexible staffing as employees could not perform work assigned to another units.  Moreover, employees also would suffer from reduced job opportunities as promotions and transfers would be hindered by organization unit barriers. 
  As previously mentioned, Chairman John Kline (R-MN) addresses this case decision in his “Workforce Democracy and Fairness Act.”  The legislation aims to codify the long-standing criteria that the NLRB has traditionally used for determining the appropriateness of a proposed bargaining unit.  By codifying the criteria, the bill will assure that balance in the labor laws will remain for the foreseeable future.  
  
  In the Senate, Senator Johnny Isakson (R-GA) introduced S. 1843, the Representation Fairness Restoration Act, that would also reverse the NLRB Specialty Healthcare decision and reaffirm the traditional bargaining unit.  The legislation was introduced with 28 original co-sponsors. 
  
• In January, Acting General Counsel Lafe Solomon advised four states (Arizona, South Carolina, South Dakota and Utah) that unless they blocked enforcement of recently adopted constitutional amendments requiring employees to use secret-ballot elections to unionize, the labor board would sue to nullify them.  A lawsuit has been filed in Arizona; despite efforts by the Republican Attorney General to fight the lawsuit, a federal judge rejected the state’s request to dismiss the suit on grounds that it is pre-empted by federal law. 
  
  Solomon states he has decided not to sue South Carolina and Utah in order to conserve scarce resources.  To date, the South Dakota lawsuit has not been filed. RILA will be watching these cases carefully as they progress.
  
• In June, the DOL issued the “persuader activity” proposed rule: it will affect all communications between employers and their legal counsel and consultants. The rule would require retailers to report compensation paid to outside advisors and in-house legal counsel, executives, managers and supervisors for their involvement and participation in opposing union organizing activity, whether or not these officials communicate directly with employees. Currently, under Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA) Employer/Consultant Reporting, legal counsel and consultants have been carved out of reporting requirements as long as they do not engage directly with employees. RILA submitted a comment letter before the filing deadline which closed on September 21, 2011. 
  
• DOL’s Wage and Hour Division released the Notice of Proposed Rulemaking that wants employers to inform all employees, in writing, of their status as exempt or non-exempt under the Fair Labor Standards Act, resulting in confusion for workers and increased litigation for employers. A final rule was expected in early 2011, however, has yet to be released.
  
• DOL’s OSHA has shifted almost completely from a compliance assistance agency with a proven track record of reducing workplace injuries and illnesses to a hostile and aggressive enforcement agency. Assistant Secretary David Michaels has said he will ensure employers are brought into “compliance by shame” and has drafted numerous new rules to back up his words.
  
• As part of the Obama Administration's "plan, prevent, protect" mantra, OSHA is expected to launch the I2P2: Injury and Illness Prevention Programs which will require employers to implement an internal I2P2 program. This will involve planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. Safety programs mandated by the government are concerning to employers which, as exemplified in the past, exposes them to increased regulations and litigation.
  
• EEOC is attempting to clamp down on employer use of credit and background checks to screen employees, even those who handle sensitive personnel or financial information, exposing employers to fraud, theft and costly litigation from data breaches. A hearing scheduled on July 26, 2011 made clear to the business community that the EEOC would examine the supposed ways the formerly incarcerated are being discriminated against for hiring. It is expected that the EEOC will release guidance on credit checks by the end of 2011, with guidance on criminal background shortly thereafter.