LABOR LAW UPDATE The Railway Labor Act, The … services...NATA AIRLINE SERVICES COUNCIL MAY 15,...
Transcript of LABOR LAW UPDATE The Railway Labor Act, The … services...NATA AIRLINE SERVICES COUNCIL MAY 15,...
NATA AIRLINE SERVICES COUNCIL
MAY 15, 2012
LABOR LAW UPDATELABOR LAW UPDATEThe Railway Labor Act, The National Labor Relations Act and Other
Employment-Related Initiatives
•Roger H. Briton
• (631) 247 4609• (631) 247-4609
Jackson Lewis LLPJackson Lewis LLP
www.jacksonlewis.com
Introductory Statement
The materials contained in this presentation were
prepared by the law firm of Jackson Lewis LLP for the
participants’ own reference in connection with education
seminars presented by Jackson Lewis. Attendees should
l i h l b f ki i dconsult with counsel before taking any actions and
should not consider these materials or discussions
thereabout to be legal or other advicethereabout to be legal or other advice.
© 2012 Jackson Lewis LLP 22
About the Firm
• Represents management exclusively in every aspect of
employment, benefits, labor and immigration law and
related litigation
• Over 700 attorneys in 49 offices nationwide
• Current caseload of over 5,000 litigations and
approximately 300 class actions; over 2,100 litigations approximately 300 class actions; over 2,100 litigations
brought to the firm in 2010 alone
• Founding member of L&E Global
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• Founding member of L&E Global
3
THE AIRLINE SERVICES INDUSTRY IS A MIXED BAG
• Employers which have their labor roots under the
National Labor Relations Act (“NLRA”)
• Administered by the National Labor Relations Board
(“NLRB”)
• Location specific electionsLocation specific elections
• Location specific CBAs
• Employers which have their labor roots under the
Railway Labor Act (“RLA”)
• Administered by the National Mediation Board
(“NMB”)(“NMB”)
• Normally nationwide elections
• Normally nationwide CBAs
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• Normally nationwide CBAs
• “Rootless” (non-union) employers
Recent Developments Under the NLRA
• The NLRB Agenda
• Case Law Re-Interpreting NLRA
Bargaining Unit Redefinition
Class Action Waivers in Arbitration Agreements
R l ki g I iti ti• Rulemaking Initiatives
NEW Mandatory employee rights posting
NEW Accelerated Election Rules
• General Counsel Agenda
Expand the definition of concerted activities – social
media casesmedia cases
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NATIONAL LABOR RELATIONS BOARD
• NEW Mandatory Posting: Notification of Employee
Rights
• Covers most private sector employers – with or
without unionswithout unions
• Must be posted in “conspicuous places”.
• Must check “proficiency” of employees in English (20%
rule)
• Must be at least 11” by 17”
• Employers may also be required to post electronically
• Legal challenges give rise to inconsistent rulings
Implementation recentl sta ed ntil at least Fall
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Implementation recently stayed until, at least, Fall
2012
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Why the Controversy?
• Notice informs employees of rights that may have
been ignored:
• Form, join or assist unions in efforts to organize
and collectively bargain with an employer
i g g h d th diticoncerning wages, hours and other conditions
• Strike, picket and engage in other protected
concerted activity for the employees’ mutual aid concerted activity for the employees mutual aid
and protection
• Discuss wages and benefits with co-workers Discuss wages and benefits with co workers
and/or union representatives
• Wear union hats, buttons or other insignia at
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work (barring special circumstances)
Some Issues For Consideration
• Potential for increased union and/or • Potential for increased union and/or protected concerted activity
• Questions and discussions about the new poster or its content
• Greater exposure to unfair labor practicesp
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Be Aware Of E.O. 13496
• The D.C. Circuit’s injunction does not affect the existing
Presidential Executive Order 13496 requirement
• Covered federal contractors and subcontractors still
must post a DOL-generated notice similar to the NLRA
notice
• The Executive Order is not based on the Board’s
statutory authority
• Therefore, employers who participate in covered federal
contracts remain obligated to post the DOL notice
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AAP Requirements If You Are A Federal Contractor
Federal Contractor Status – Who Is Covered by the
Federal Affirmative Action Regulations?
– Coverage Thresholds – Companies that meet
the following are covered by the regulations
d i d t ittand are required to prepare a written
affirmative action plan:
– 50 or more employees and;– 50 or more employees and;
– Contractor or Subcontractor (necessary in whole or in
part) with a government contract of $50,000 or more;
– Depository of federal funds/FDIC participation
– Intra-corporate relationships
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Regulations Affirmative Action
• Executive Order 11246
• Section 503 of the Rehabilitation Act of 1973
• Vietnam-Era Veterans’ Readjustment• Vietnam-Era Veterans ReadjustmentAssistance Act of 1974
• Implementing Regulations
Enforcement Agency
Off f C C• Office of Federal Contract CompliancePrograms
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Be Aware Of E.O. 13496 (cont’d)
• Applies to federal contracts of
$100,000 or more solicited after
June 21 2010June 21, 2010
• Contractors must post notice at
worksites where activities
“related to” the performance of
the contract are performed
Th N ti d t il l • The Notice details employee
rights under the NLRA (unionize,
engage in protected concerted
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activities)
The NLRA Election Timeline Prior to 4/30/12The NLRA Election Timeline Prior to 4/30/12
• Union Solicitation of Support
• Employer Communications• Employer Communications
• Secret‐Ballot Election
G d i h i i
ElectionCards 42 Days (in
• Good Faith Negotiations
• Penalties for Violations Cards y
litigated cases average is 56 days)
Petition (30%)/ Negotiations?
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Organizing Demand For Recognition
NATIONAL LABOR RELATIONS BOARD
NEW Acceleration of NLRB Elections: The NLRB
fgoes part of the way:
• Limiting the scope of pre-election hearing
• Limiting post-hearing briefs
• Consolidating and setting standards on appealsg g pp
• Requiring “prejudicial error” for Board review.
• Effective 4/30/12
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The Door is Open: A possible alternative to the 42 day timeline
• Day 1: Petition Filed
• Day 10: Stipulation approved• Day 10: Stipulation approved
• Day 17: Excelsior List filed
• Day 27: 10th day of union’s possession
of List
• Day 28: Election?
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THE RLA ALTERNATIVE
• RLA Coverage
• Air carriers• Air carriers
• Railroads
• Derivative air carriers
Traditional air carrier work
Under common ownership or
control with air carrierscontrol with air carriers
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RECENT DEVELOPMENTS UNDER THE RLA
• 6/30/10: NMB adopts new voting procedures
• Ballot changed to add a “no” voteg
• Majority of votes cast
• No “decertification” procedure adoptedNo decertification procedure adopted
• Strong dissent
Legal challenges rejected• Legal challenges rejected
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RECENT DEVELOPMENTS UNDER THE RLA
• 2/14/12: FAA Modernization and Reform Act of 2012 (Pub. L. No.
112-95, Sections 1001 et seq.) amends various provisions of RLA
Adds Sec 10A to give NMB authority to make amend and Adds Sec. 10A to give NMB authority to make, amend, and
rescind rules and regulations “after opportunity for a public
hearing.”
Amends Sec 2 Ninth to change NMB practice with regard to Amends Sec. 2, Ninth to change NMB practice with regard to
runoff elections
Adds Sec. 2, Twelfth to increase required showing of interest
from 35% to 50%from 35% to 50%
Adds requirement for Controller General to periodically
“evaluate and audit” NMB processes to “certify and decertify”
representativesp
Within 180 days, Controller General to make
recommendations to Congress and NMB, as to whether NMB
certification and decertification processes are “fair and
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p
reasonable for all parties”
RECENT DEVELOPMENTS UNDER THE RLA
• May 2012
• NMB rejects application of 50% showing of
interest in pre-2/14/12 election filing at AA (see
39 NMB 363 (2012)
– Again over strong dissentAgain over strong dissent
• AA lawsuit vs. NMB pending
• Issue #1: showing of interest
• Issue #2: eligibility of furloughed employees
to participate
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RECENT DEVELOPMENTS UNDER THE RLA
• NMB Decision in Air Serv Corp., 38 NMB 113
(2011)
• Confirms derivative carrier status for
security personnel working under contract
with DL at JFK
• Confirms “nationwide” craft or class
Centralized management services
Centralized HR and labor relations
Centralized payroll and benefits
Common core agreements with carriers
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Common core agreements with carriers
What Are The Major Advantages of RLA Coverage?
• New NLRB initiatives will not apply
• Potential advantages in response to future g
organizing efforts
• Nationwide crafts or classes
• Higher showing of interest.
• Possibility of withdrawing from current local Possibility of withdrawing from current local
union representation upon agreement
expiration (or even before?)p ( )
• Possibility of operating union free.
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• Diminished availability of union economic
weapons.
• No job actions pending exhaustion of lengthy
bargaining processes.
• Reduced likelihood of job actions.
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Are There Disadvantages of RLA Coverage As Well?
• Potential for increased union leverage in single
nationwide negotiation or job action.
• Status quo limits company ability to
implement changes in conditions quickly.
• If nationwide craft or class established, new
locations automatically would be included.
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Other Initiatives--Executive Order 13495
• Nondisplacement of Qualified Workers under Service Contracts:
• Signed January 30, 2009
• Stated purpose is to provide greater productivity and efficiencies when a government service contract expires and a follow-on contract is awardeda follow on contract is awarded
• Federal contractors awarded a follow-on contract for the “same or similar services at the same location” must offer th d t t ’ l ( th th the predecessor contractor’s employees (other than managers and supervisors) the “right of first refusal” for positions in which they are qualified
• August 29, 2011 the Department of Labor’s Wage and Hour Division (WHD) published its final rule implementing the E.O.
• Rule does not go into effect until FAR Council publishes its
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Rule does not go into effect until FAR Council publishes its final rule, now not likely to be before late Summer 2012
Executive Order 13495
• Applies to:
• Contracts and subcontracts entered into under the
McNamara O’Hara Service Contract Act of 1965 (SCA)McNamara-O Hara Service Contract Act of 1965 (SCA)
SCA applies to contracts with the federal government
in excess of $2,500, in which the principal purpose of $ , , p p p pthe contract is to furnish services in the U.S. through
the use of “service employees”
Must provide service employees no less than the
monetary wage rates and fringe benefits found
prevailing in the locality (set forth in wage
determinations issued by WHD) or the rates contained
in a predecessor contractor's collective bargaining
agreement (if applicable to the contract)
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ag ee e t ( app cab e to t e co t act)
Thank You!
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