The U.S. Department of Labor’s regulations changing overtime rules for white collar employees become effective August 23, 2004, unless organized labor and its allies can derail them. Confusing and inaccurate news reporting has aided a misinformation campaign led by the AFL-CIO. The final form released by USDOL on April 20 was a watered-down version of earlier efforts to cure serious defects in existing outdated regulations which has led to uncertainty, compliance breakdowns and encouraged class action lawsuits. The successful efforts to politicize the changes as “anti-worker” has resulted in the passage of some limiting legislation in the Senate that will not likely find House support, which in any case would result in a Presidential veto based on current statements from The White House. However, the opponents of the revised regulations vow to continue the fight. An accurate summary of the revised regulations by Constangy’s Jim Coleman is to be found on the firm’s updated web site www.constangy.com.
Employer restrictions upon e-mail solicitations are very difficult to justify to the National Labor Relations Board. A recent conference of the American Bar Association’s Labor and Employment Section’s Technology Committee pointed out challenges employers will face if e-mail usage by employees is restricted during union campaigns. Traditional card signing solicitation, hand billing and other forms of literature distribution are normally easy to observe and manage, while e-mail is not only difficult to observe, but its widespread use in most offices for some personal concerns will result in restrictions regarded as discriminatory.
A California statute that required employers to be neutral in unionization efforts by their employees is invalid and preempted by the National Labor Relations Act. The 9th Circuit Court of Appeals ruled that the state law that would prohibit employers in California that received more than $10,000 in state funds from opposing unionization would undermine federal labor policy by altering “Congress’ design for the collective bargaining process.” The Court held that the statute regulated union organizing matters that Congress intended to leave free of state regulation.
A hotel employer’s communication during an NLRB election campaign that described the recent outsourcing of work that had been performed by personnel at other of the employer’s hotels (following unsuccessful bargaining) was not objectionable conduct. An NLRB Regional Director found that a memo by the hotel management “clearly implied” that a guard’s union was responsible for work lost in two other hotels and that similar losses were possible if the security guards voted for the union. The NLRB Chairman and a Republican colleague ruled in the employer’s favor while the dissenting Democrat member found the memo objectionable “because it conveyed the threat that unionization would lead to the loss of employees’ jobs and benefits.”
A unionized New York company violated the law by unilaterally discontinuing a long-standing practice of allowing employees to donate blood during working hours. A change to this practice and requirement that it be done after hours or without pay was an unfair labor practice because the Company had previously “permitted employees to receive wages for time not worked – up to four hours per blood drive twice a year – and to have these non-working hours counted as work time.” The NLRB decision was affirmed by the Court of Appeals for the District of Columbia.
Teamsters anti-corruption leader Edwin Stier and his staff have resigned, informing the General Executive Board of the Teamsters that President Hoffa “…has backed away from the Teamsters’ anti-corruption plan in the face of pressure from a few self-interested individuals.” Stier had headed the anti-corruption program for the International, having served in a similar role during the Justice Department’s federally supervised oversight of Teamster Local 560 in New Jersey. Stier’s agreement to head the program for Hoffa was transparent, designed to end the supervision of the International under a 1989 Consent Decree. Twenty former law enforcement officials who were part of the anti-corruption staff also submitted their resignations. The reform initiative is said to have cost more than $15,000,000 thus far.
Prior to an NLRB decertification election, Teamster drivers for a food manufacturer were accompanied by supervisors or non-union drivers from other facilities. The Regional Director’s decision to set aside the election lost by the Teamsters was set aside. A three-member panel of the NLRB found that conversations during the ride-alongs were casual and non-threatening, and that there was no pressure from management to discuss the election. Note: In contrast to this recent ruling, a practice of supervisors visiting the homes of employees during an election campaign has long been held to be objectionable conduct that would set aside the election, even though the same would not apply to union representatives visiting employee homes.