SLF LABOR AND EMPLOYMENT ALERT March 2008

National Labor Relations Board’s Proposed Revision to Its Rules and Regulations Includes New Form of Consent Election Featuring a Joint Labor Organization-Employer Petition

On February 26, 2008, the National Labor Relations Board (“NLRB”) published a Notice of Proposed Rulemaking in the Federal Register (Volume 73, Number 38). As part of the proposed changes, the NLRB is “proposing to adopt a rule that would authorize a petition for a prompt NLRB election to be jointly filed by a labor organization and an employer.”  The deadline to submit written comments on the proposed rulemaking is March 27, 2008.

Pursuant to the Notice, the proposed changes

“would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected.”

The above-cited section of the Notice is only portion of the proposed changes. The remaining proposed changes discuss, among other things, the fact that no showing of interest is required, petition/docketing/election requirements and timeframes, approval timeframes, the content of NLRB notices sent to employees, the proper locations to display NLRB notices and NLRB official Notice of Elections, the length of time in which NLRB notices and NLRB official Notice of Elections must remain posted, and penalties for failing to post NLRB notices.

The Notice also explains that

“[a]ny motions to intervene may be filed with the Regional Director in accordance with Sec. 102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable.

Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition.”

The Notice can be viewed by accessing the following link: http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo. gov/2008/E8-2767.htm

Florida Legislation Update: Guns in Employee Vehicles

On March 26, 2008, the Florida House of Representatives passed CS/HB503 by a vote of 72-42. The bill, titled “Preservation and Protection of the Right to Keep and Bear Arms in Motion Vehicles Act of 2008,” permits employees to leave guns in their vehicles while at work. However, employees must possess a valid concealed weapons permit, and the weapon must be left in the employee’s vehicle. This bill would apply to both private and public sector employees but would not apply to certain school property, correctional institutions, nuclear-powered electricity generation facilities, property where substantial activities involving national defense, aerospace, or homeland security are conducted, and other certain types of property/facilities. The final amended bill will not become law until signed by Governor Charlie Crist.

For more information, including the full text of the bill, please view the following link: http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?
BillId=37914&SessionId=57.

Case Law Update: Union Service Fees/Nonmember Payments

On February 19, 2008, the United States Supreme Court granted certiorari in Locke v. Karass, Case No. 07-610, a case that originated in the First Circuit Court of Appeals. The question presented to the Supreme Court by Appellant was “[m]ay a State…consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of agency fees for purposes of financing a monopoly bargaining agent’s affiliates’ litigation outside of a nonunion employee’s bargaining unit?”

Appellant prefaced the proposed question by citing the prior holding in Ellis v. Railway Clerks and explained that the Supreme Court “‘determined that the [Railway Labor Act], as informed by the First Amendment, prohibits the use of dissenters’ [union] fees for extraunit litigation.’ Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 528 (1981)(opinion of Blackmun, J., citing Ellis, 466 U.S. 435,453 (1984)). In Lehnert, a four-member plurality therefore held ‘that the Amendment proscribes such assessments in the public sector.’ Id. Moreover, Justice Scalia’s separate opinion, concurring in part in the judgment announced by Justice Blackmun, reasoned that ‘there is good reason to treat [Ellis and the Court’s other statutory cases] as merely reflecting the constitutional rule.’ Id. at 555.”

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