In the memo, General Counsel Abruzzo indicated that while situations on work properties vary on a case-by-case basis, “employers covered under the National Labor Relations Act (NLRA) have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment-to the extent the ETS provides employers with choices regarding implementation.”
OSHA’s ETS, implemented Nov. 5, ordered employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”
A U.S Court of Appeals for the 5th Circuit has since issued a temporary stay on the ETS, asking for further briefing by the parties. The General Counsel’s memo indicates that she favors a nuanced and bargained approach between labor and employers in implementing COVID policies rather than a unilateral approach on the part of employers.
“The employer also has an obligation to bargain over the effects of this policy,” Abruzzo said in the memo.
The memo’s guidance would mainly affect TD members on bus and some transit properties.
Below is a press release from the NLRB General Counsel and a link to the memo that was released.
November 12, 2021
In a memo issued on November 10th, Acting Associate General Counsel for the National Labor Relations Board Joan Sullivan provided information to all field offices on the recent Department of Labor Emergency Temporary Standard to Protect Workers from Coronavirus (ETS).
The memo explains that although General Counsel Jennifer Abruzzo does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that employers covered by the National Labor Relations Act have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.
Although an employer is not obligated to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally when it has some discretion in implementing those requirements. To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.
“The ETS clearly affects terms and conditions of employment—including the potential to affect the continued employment of workers who become subject to it—and gives covered employers discretion in implementing certain of its requirements. In those circumstances, a decisional bargaining obligation is required. The employer also has an obligation to bargain over the effects of this policy,” said General Counsel Jennifer Abruzzo. “While our country recovers from COVID-19, workers should know they have the right to a safe workplace and to have their voices heard.”
Wilma Liebman, a former chief of the National Labor Relations Board for three terms and a member of the board for more than a decade, described what she termed “a stacked deck” against American workers that has been assembled by the current presidential administration in an op-ed column published by The Morning Consult.
The term of the lone Democrat on the NLRB expired in December, and there currently are three Republicans on the board.
“There is no one still inside the board with power to defend the statute that protects the right of American workers to improve working conditions by joining together,” Liebman wrote.
Under President Donald Trump’s administration, Liebman describes a board that has reversed decades of precedent, been ignorant of ethics rules, put aside the advice of experienced staffers and has been hostile to the expansion of workers’ rights in favor of big business.
“If the past predicts the future, then even worse things are coming for workers and their unions,” Liebman wrote.
Washington – Philip A. Miscimarra has been named chairman of the National Labor Relations Board (NLRB) by President Donald J. Trump.
“It is a great honor to be named NLRB Chairman by the President,” Miscimarra said. “The Board has the important responsibility of applying the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country. I remain committed to these efforts.”
President Trump designated Miscimarra NLRB chairman, April 24, 2017, after the White House announced the President’s intent to name Miscimarra Chairman April 21. Miscimarra had been previously designated Acting Chairman by President Trump January 23, 2017, and served as a Board Member since August 7, 2013. Miscimarra was nominated April 9, 2013, to serve on the Board, and was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions May 22, 2013. He was confirmed by the Senate July 30, 2013, and his current term expires December 16, 2017.
The NLRB also consists of NLRB Member Mark Gaston Pearce (previously NLRB Chairman), whose term expires August 27, 2018; and NLRB Member Lauren McFerran, whose term expires December 16, 2019. Two Board member seats are currently vacant.
Before joining the Board, Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP; Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC); and Reed Smith Shaw & McClay (now Reed Smith LLP).
Miscimarra received his Juris Doctor from the University of Pennsylvania Law School; a Master of Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts, summa cum laude, from Duquesne University.
The National Labor Relation Board just ruled that Trump’s refusal to bargain with the 500+ unionized employees at the Trump International Hotel in Las Vegas is in violation of federal labor laws. Read the complete article here.
In the 80 years since the National Labor Relations Act was enacted, the workplace has changed in ways that President Roosevelt never could have imagined when he declared that the goal of the law was “common justice and economic advance” for all. Yet his signature so long ago guaranteed that one thing would and has remained the same — democracy has a rightful place in the workplace.
Enacted in midst of the Great Depression, the National Labor Relations Act gave workers an avenue to join together to improve their wages and working conditions. The ability to organize and bargain collectively put more money in the pockets of workers while helping build – and maintain – the middle-class.
Through good times and bad, the Act has offered workers a voice in their workplace and promoted industrial peace. Our country and workplaces have changed over the last eight decades, but the need for the Act has remained a constant.
Today, the law continues to protect employees who seek to improve their working conditions by joining together, with or without a labor union. It protects the union member seeking to improve conditions at their plant just the same as it does the single-mom in a non-union workplace working the night shift who speaks with coworkers about their pay and work hours. And through collective bargaining, unions and employers can resolve their differences and devise solutions to meet the challenges of our ever-changing economy.
While there is little doubt that the workplace will bear little resemblance in 80 years to what we know today, there is even less doubt that workers will deserve and demand a voice in it. As long as there is the NLRA, that voice will be protected.
President Franklin Delano Roosevelt signed the National Labor Relations Act on July 5, 1935, which among other things established a new independent agency tasked with enforcing the Act, the National Labor Relations Board.
By Calvin Studivant Alternate Vice President, Bus Department
In late August, a federal appeals court vacated the Federal Motor Carrier Safety Administration’s final rule requiring electronic onboard recorders.
The court said the rule does not sufficiently protect drivers from being harassed by employers to remain at the wheel when they are fatigued. The final rule was scheduled to go into effect in June 2012. A lower court, which had set aside a challenge, was told to revisit the case.
The 7th Circuit Court of Appeals said the FMCSA “needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment.”
As a member of the FMCSA advisory committee, I previously voiced concern over this rule, and it is comforting that our concerns were recognized by the appeals court. I expect the lower court will instruct the FMCSA to revise the rule to include better driver protection.
Also of interest to our bus members, the National Labor Relations Board has instructed all carriers subject to the National Labor Relations Act to inform employees of their rights to organize and be represented by a labor union. This will certainly help in our efforts to organize the unorganized. See the separate article on this ruling elsewhere in this issue of the newspaper.
Turning to news of our bus locals, members of Local 1715, Charlotte, N.C., recognize the quality of UTU representation. In recent weeks, three members were returned to work following successful processing of their grievances.
Additionally, the UTU has prevailed in 14 grievances that put $1,000 in back pay into the wallets of each of these Local 1715 members.
We also have begun contract negotiations with the carrier on behalf of Local 1715 drivers. As part of this process, we are restoring respect lost while represented by another organization prior to the UTU representation election victory earlier this year. We are in the process of delivering improved working conditions on the Charlotte property by modifying tentative contracts agreed to by the other organization.
Local 1715 also has completed its local elections. Kevin Moss was elected general chairperson, Hasson Trent was elected vice general chairperson, and Bruce Wright was elected local president. We are very proud of these new officers and the members.
Also in negotiations is Local 172 in Darby, Pa., where Vice President Vic Baffoni is assisting at the bargaining table.
WASHINGTON — Employers, including union and non-union bus companies, covered by the National Labor Relations Act must now post notices on bulletin boards informing employees they have a right under federal law to organize and be represented by a labor union.
The National Labor Relations Board (NLRB) issued that final ruling last week after concluding many workers are not aware of their rights under the National Labor Relations Act.
If employers communicate with employees regarding personnel issues via the Internet or an internal company Intranet, they must also post the notice on those sites, ruled the NLRB.
The New York Times reported that this is the first time, since passage of the National Labor Relations Act in 1935, that employers have been ordered to post notices about employee rights to organize.
“This rule ensures that workers’ rights are effectively communicated in the workplace,” said AFL-CIO President Rich Trumka. “It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.”
The ruling does not affect railroads or airlines as they are covered by the Railway Labor Act, which is administered by a separate federal agency, the National Mediation Board.
WASHINGTON – In a move organized labor has long pushed for, the National Labor Relations Board (NLRB) June 21 proposed new representation-vote rules that will speed-up the voting process and give more transparency to employer actions intended to discourage a “union, yes” vote.
NLRB rulings impact UTU Bus Department members. Rail and airline labor relations are administered by the National Mediation Board.
The NLRB ruling – intended to reduce time-consuming litigation prior to a rep vote, and ensure information about organizing drives is disseminated more quickly — is open for public comment for 75 days, after which the NLRB is expected to issue a final rule.
“The UTU has long been pushing for transparency and streamlining of the rep-vote process,” said UTU National Legislative Director James Stem. “This will restore some level of integrity to the rep-vote process, which has been subject to manipulation by employers.”
Under the proposed rule, employers no longer would be able to delay rep-votes through legal challenges over which employees are eligible to vote. Instead, such litigation would be allowed only after the rep-vote has taken place.
Additionally, the NLRB proposes to allow electronic filing of authorization cards and requests for a rep-vote; and a requirement that employers provide, in a timely manner to union organizers, a voter list of all employees, including phone numbers and email addresses.
The NLRB also proposes that employers disclose the identity of all consultants hired to provide “advice” to the employer on how to respond to organizing drives, or who write materials used by the employer to communicate with workers about the organizing drive. Currently, employers need only provide the identity of consultants who communicate directly with workers.
What do the Nov. 2 congressional election results mean for UTU members and their families?
Consider these facts that are not always obvious:
While it is true that organized labor has more friends among Democrats, many of the Republicans elected Nov. 2 are friends of working families, and they received UTU PAC support and were on our voting recommendations list.
The UTU is a bipartisan union, historically and consistently looking beyond party labels to reward each and every friend of working families.
Among our Republican friends, for example, are Rep. Don Young of Alaska, and Sen. Orrin Hatch of Utah. Republican Sen. Hatch is one of the strongest congressional defenders of the Federal Employers’ Liability Act (FELA), while Republican Rep. Young has been one of the UTU’s most ardent supporters in the House of Representatives.
One of the most important congressional committees to UTU members — airline, bus and rail — is the House Transportation & Infrastructure Committee, where most legislation affecting the transportation industries originates. Among Transportation & Infrastructure Committee members, more than 66 percent — Democrats and Republicans — who were endorsed by the UTU won re-election Nov. 2.
In all congressional races Nov. 2, more than 60 percent of UTU endorsed candidates won election or re-election. Imagine if you could win a poker hand more than 60 percent of the time, or hit safely six of 10 times at bat as a major league ballplayer.
Despite the change in party control in the House of Representatives, UTU recommended candidates are still a majority, meaning the UTU National Legislative Office can continue to work successfully on issues that matter to our members — job security, safety, health care and retirement benefits, as well as adequate public funding for Amtrak and public transit.
Key regulatory agencies, such as the Federal Railroad Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, National Mediation Board, and National Labor Relations Board, will continue to have labor-friendly majority control.
The UTU’s GOTV — “get out the vote” — effort this election year resulted in thousands of UTU members and families, who were not previously registered or hadn’t voted in the previous (2006) non-presidential election, registering to vote and casting ballots in congressional races.
In states where early voting is permitted, preliminary polling by GOTV shows that as many as 20 percent of UTU members and spouses who cast an early ballot had not voted in the 2006 non-presidential election. This proved important in close races.
On behalf of the UTU, GOTV — in partnership with UTU state legislative directors and the UTU Auxiliary — made more than 210,000 unique member contacts in 28 states via the postal service, e-mail and telephone calls, urging UTU members and their families to register to vote and to vote in this election.
By encouraging a higher percentage of UTU members to register to vote and to vote, we demonstrate to candidates the power of UTU endorsements — and, especially, that in close races, a UTU endorsement has great value to a candidate.
Candidates remember their friends in the same manner organized labor remembers its friends.
As the proverb says, “It’s not the will to win, but the will to prepare to win that makes a difference.” What the UTU PAC and GOTV demonstrate to candidates of all political stripes is that the UTU is a friend worth having.
The UTU has always had a great legislative program, but what we have accomplished this election through GOTV sets a new standard and benchmark to measure future advances.
When the new Congress is seated in 2011, we will be working closely with our old and new friends to continue advancing the UTU legislative agenda on behalf of our members.
The National Mediation Board, which administers the Railway Labor Act, proposes changing the rules by which rail and airline employees choose labor union representation. The UTU supports the change.
The NMB rules for representation elections now require a majority of employees eligible to vote actually cast a ballot favoring a union before that union is certified as the bargaining agent. Those not voting are assumed to have cast a “no” ballot.
By contrast, the National Labor Relations Board, which administers labor law affecting the bus industry, certifies representation elections based on results of those actually voting — the universal standard in democratic elections.
The UTU submitted comments supporting the change. A final ruling by the NMB may be issued this month.
You might wonder why the NMB has been out of sync with universal democratic voting procedures. The answer is circumstances were markedly different when the rule was first imposed during the 1930s.
Back then, the NMB was concerned with company unions, racial discrimination, conflict among competing unions, lower reading comprehension among union members, primitive means of communication, and even communist agitators.
Two-thirds of the NMB workload in the 1930s involved purging outlawed company unions, which were controlled and financed by management. Requiring a majority of those eligible to vote (as opposed to a majority of those voting) more conclusively communicated to management an employee desire for an independent labor union.
African-American employees often were denied representation in company unions, and were discriminated against in hiring, assignments and discipline. Many railroads back then tried to deny ballots to African-American employees. By certifying representation elections based on the majority of those eligible to vote, the NMB advanced racial democracy.
In that earlier era, dozens of labor unions were in competition for representation, as it was not until 1954 that the AFL-CIO constitution prohibited “raiding” by its member unions. Thus, the NMB sought to “get it right” in determining which union the majority of employees favored.
During the 1930s, only 30 percent of workers held high school diplomas (versus more than 70 percent today), and voting was by mail ballot with detailed written instructions.
Communication also was primitive. This was no small concern, as under the Railway Labor Act, representation is system-wide. It may be hard to believe in this era of cell phones, but during the 1930s, it took up to five AT&T operators to complete long-distance calls, which cost up to $33 in current dollars. By requiring a majority of eligible employees vote in favor of representation, the procedure promoted a more informed vote as union supporters had incentive to educate members on each individual property and encourage them to vote.
Finally, during the 1930s, communist agitators advocated worker militancy. The NMB election procedures of that era sought to prevent a handful of agitators from rigging elections.
Circumstances have, indeed, changed. And that is why the NMB now proposes to bring its 75-year-old representation election voting procedures in sync with the universal rule of democratic elections.
Meanwhile, Congress currently has before it the Employee Free Choice Act, which affects our bus members covered under the National Labor Relations Act. Employers and their friends in Congress have so far blocked passage of that law.
The Employee Free Choice Act would do three things to level the playing field for employees and employers.
It would strengthen penalties against companies that illegally coerce employees from expressing support for union representation; it would require a neutral third party impose a contract when a company refuses to negotiate in good faith; and it would require an employer to recognize a union immediately if a majority of employees sign union-authorization cards.
The UTU supports passage of the Employee Free Choice Act.