• When negotiating with a labor union, a company which pleads financial inability to pay is required to produce its books and records to the union upon demand. The U.S. Supreme Court long ago established that rule, but the Court of Appeals for the District of Columbia recently refused to enforce such an order of the NLRB. The employer announced to employees that its proposals were designed "to bring the bottom line back into the black." The Court held that even though an employer’s statements suggested an inability to pay, "no duty to disclose arises if that employer clarifies that it did not intend to plead financial inability." There is a distinction between "I can’t afford to pay" and "I am not going to pay."

• In a union decertification election, the ballots of those on strike must be counted unless the strikers’ jobs have been permanently eliminated. Thus, both the striker and a striker replacement can be eligible to vote in such an election. In a recent NLRB decision, two members held that a company had not carried its burden of proving the elimination of the strikers’ jobs, finding that the company had continued to regard them as employees, never sent them a notice of termination, and refused a union request that the company inform the strikers of their status. The NLRB Chairman dissented, arguing that the strikers had no reasonable expectation of recall and the company had twice so informed the union, and should have had no right to vote for that reason alone.

• Economists contend that the competitiveness of the Mexican economy is declining because of rising labor regulation and costs when compared with China and a "rejuvenated" India At a recent international labor conference, economist and Nobel Prize winner James Heckman observed the Mexican economy operates under a burden of too much regulation and has not performed well over the last three years. He said labor law reform should focus on increasing productivity and generating wealth, rather than on redistribution of wealth and equality, citing successful labor reforms in Chile and the United Kingdom as those that promote excellence and reward achievers.

• The Greenbrier was recently found to have illegally called police to oust picketers who were protesting the actions of a construction firm at the upscale resort. The NLRB majority found that pickets, members of the Operating Engineers Union, were engaged in a protected activity on public property and that "there is no basis to conclude that they somehow lost the protection of the National Labor Relations Act by creating a traffic hazard or were interfering with the private property interests of The Greenbrier." A dissent by the Republican Chairman argued that The Greenbrier had "lawfully contacted the police based on a concern that there was a potential traffic safety problem and that the First Amendment gives citizens the right to contact governmental authorities with respect to their reasonable concerns."

• New U.S. Labor Department rules expanding the financial reporting of unions have been made final and are to take effect January 1. They will require more detailed disclosure, and a breakdown of expenses by functional categories such as political activities and lobbying, union administration, strike benefits and representational activities. AFL-CIO President John Sweeney says that compliance will burden unions and "leave less time for contract negotiations, grievance handling, organizing and other core union activities."

• Auto and Auto Parts negotiations for new labor agreements completed in the past two months retained employer-paid health care, even though employee co-payments for certain brand-name drugs will increase. The "big three" auto manufacturers’ pattern was followed by parts suppliers at both GM and Delphi. The Teamsters’ agreement with Anheuser-Busch also continues employer-paid health care.

• A company policy that prohibited employees from disclosing proprietary information became an issue in NLRB proceedings where it was combined with a less than clear no-solicitation policy. Thus, an employer’s handbook policy on non-disclosure of proprietary "employee information" was alleged as an unfair labor practice that tended to chill employees’ exercise of rights to discuss wages, hours and working conditions with each other. The NLRB majority found that the no-solicitation policy was lawful because a facially unlawful handbook summary of the no-solicitation rule, when read with the full rule, legally prohibited only solicitation in working areas during work time. Although the NLRB found in favor of the employer, litigation over this issue was unnecessary and costly. Constangy clients initiating or revising such policies are advised to refer them to counsel for review.

 

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