Noel Canning ruling a setback for Obama and NLRB

Efforts by the Obama administration to pursue an aggressive pro-union agenda via the National Labor Relations Board (NLRB) suffered a major setback earlier today. A three-judge federal appeals court in the Noel Canning case unanimously found that recent recess appointments of NLRB board members violated the Constitution, ruling that "Because none of the three appointments were valid, the Board lacked a quorum and its decision must be vacated."

If today's ruling is upheld by the Supreme Court, to which the Obama administration is expected to appeal the case, it would be a long-awaited victory for Republicans and business organizations who have long objected to the Board's growing reach into non-union workplaces and increasingly pro-union rulings. It would also be vindication for Senate Republicans who have sought to check the administration's political agenda via the confirmation process which the recess appointments bypassed.

In the case, attorneys for Noel Canning, a Washington State canning and bottling company, argued that NLRB seats were filled in violation of the Constitution, Article II, Section 2, Clause 3, which allows Presidents to fill posts by recess appointments only when the Senate is in recess. Their position was that because the Senate was still meeting in pro forma session when the Obama administration filled vacant NLRB seats via recess appointments, three of five seats were improperly appointed. This would mean the Board would not have a legitimate quorum of at least three members and would therefore have no power to make rulings such as the one which Noel Canning appealed. The three Board members whose appointments were challenged by the suit were:

OSHA standards for highway work zone inspection

On October 16 of last year, the Occupational Safety and Health Administration (OSHA) issued a directive that details how compliance officers should check road construction products. 

For those like myself who are involved in keeping highway work zones safe, it's helpful to know what OSHA inspectors will be looking at before they arrive. If they're looking at it, it's likely a problem area. This is your chance to stay on top of problems and keep ahead of those OSHA visits.

The directive offers guidance on how OSHA inspectors should inspect road construction sites while applying OSHA standards and following safety precautions that apply specifically to work “on or near” roads, such as sidewalk and utility construction, “where vehicular traffic exposes construction workers to struck-by hazards.”  

The directive explains that inspections of road construction sites will focus on construction work and temporary traffic controls. The process also requires inspectors to request a copy of the project’s safety plan and the worksite’s safety measures.  

Additionally, the directive requires each of OSHA's 10 regions to designate a staff member as the “traffic control coordinator” who will provide support to investigations of traffic control issues and ensure that compliance officers receive training on inspecting roadway worksites.

Get informed BEFORE they arrive.

NLRB overturns major precedent regarding union dues

Even though recent right-to-work decisions in Indiana and Michigan present the potential for large numbers of workers to opt out of paying union dues as a condition of employment, a recent ruling by the National Labor Relations Board will allow unions another avenue to collect union dues.

Issuing a ruling in WKYC-TV, Gannet Co., Inc., the Board ruled that even when a union agreement expires, employers should still collect union dues from employees' paychecks. This goes against a long-standing precedent which dates back fifty years, which allowed employers to stop collecting union dues when a collective bargaining agreement ends.

This ruling will give labor unions another incentive to drag out contract negotiations and less incentive to negotiate in good faith with employers. But prolonged labor contract negotiations do come with a risk to workers, as evidenced by the decision of Boeing to open a production facility in South Carolina and the decision to close Wonder Bread. But as union dues are the lifeblood for organized labor, which has seen it's numbers continue to decline in recent years, this kind of ruling is one that means they can keep collecting money, even when they're not delivering results for their members.

An article on the Employment Law Daily website discussed the Bethlehem ruling:

In Bethlehem Steel, the NLRB, relying on the proviso to Sec. 8(a)(3) that “nothing in this Act shall preclude an employer from making an agreement with a labor organization to require as a condition of employment membership therein,” held that an employer acted lawfully in unilaterally ceasing to honor a contractual union security clause.

The Board ruled that this new opinion would only apply to future cases.

Understanding Obamacare Employer Mandates

It’s clear that Obamacare isn’t something many like, but unless someone finds a way to repeal it, it’s mandates are reality on employers – and so are the potential penalties which can be imposed upon employers. Some of the provisions that are soon to kick in are not going to be easy for employers to navigate.

To help explain some of what’s coming up for employers, the IRS recently published a proposed Rule, Shared Responsibility for Employers Regarding Health Coverage, which provides some guidance for HR on how to comply with requirements which the law will place upon “large” employers – those with fifty or more full-time (or the equivalent of) employees, which is defined as those working an average of thirty hours a week or more. The legislation would require these employers to provide health care cover with a specified “minimum value” beginning in 2014, or pay penalties.

This proposed Rule has a comment period that ends on March 18. As part of this, the IRS posted a Q&A digest to help answer questions. Read on for more of what there is to learn about these proposed expectations:

Unions busted for union-busting - yes, really

This is pretty funny stuff. Unions getting busted for trying to bust union organization efforts by the NLRB:

It was just a few months ago when Obama’s National Labor Relations Board ruled that the International Brotherhood of Teamsters union had engaged in union busting and ordered the union to stop harassing its own union organizers for wanting their own union.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkersand–again, the Obama labor board is having none of it.

The Teamsters even hired lawyers and even appealed losing their case - but ultimately lost.

You can't make stuff like this up.

OSHA & safety professionals questioning safety incentive programs

OSHA is changing how it assesses effective and appropriate safety programs, putting workplace safety programs under close scrutiny. A March 12, 2012 directive from the agency aims to discourage employers from using an incentive or reward system based upon safe workplace outcomes, arguing these practices may discourage the reporting of incidents and injuries.

Reporting on the Society for Human Resource Management website, Roy Maurer wrote that Deputy Assistant Secretary of Labor Jordan Barab reiterated the agency's commitment to stand by the policy direction expressed in the memo:

(S)poke Nov. 15, 2012, before the National Advisory Committee on Occupational Safety and Health, a group tasked with measuring the effectiveness of OSHA’s strategies and programs. He said that “employers have explained their objections to the directive, but none of those reasons is that it doesn’t improve safety and health.” OSHA has asked these employers to provide statistics or studies to show that rate-based incentive programs improve safety and health, but none has, according to Barab.

This was one of four practices which OSHA addressed in a memo sent out to regional administrators and whistleblower program managers in the March of last year, warning that: 

If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.

The memo went on to caution that "if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries that it is required to record under Part 1904."

While some actions by OSHA aren't welcomed by safety professionals, this one is getting some support from safety professionals who are concerned that rewarding fewer safety incidents is working to discourage the reporting of incidents, thus masking the presence of workplace hazards and gloss over unsafe behaviors.

"Run, Hide, Fight" video on workplace shootings gaining attention

A workplace safety video posted on a website by the Alabama Department of Homeland Security was shown to Charleston County Council members last night by Charleston County Sheriff Al Cannon. The video, entitled "Run, Hide, Fight" presents a simulated workplace shooting incident and suggests responses that could be taken to protect against a potential shooter:

Cannon made a presentation Thursday to Charleston County Council on a five-minute video, called “Run, Hide, Fight,” which is available on the Sheriff’s Office website. He encouraged council to in some way adopt and make use of the video, which already has been adopted by the city of Houston.

The video was produced with money from a grant from the U.S. Department of Homeland Security, Cannon said.

The video, which was originally developed by the Homeland Security department of the City of Houston, Texas is part of "Active Shooter Information", a safety resource website developed by Alabama Homeland Security in response to recent public mass shootings. Since it's release, the video has generated considerable publicity, including it's presentation by Sheriff Cannon.

It doesn't seem like this advice is an aberration as the video has also been shared on a number of other police websites, including St. Louis County, Missouri and Prince George's County, Maryland. A workplace security conference held earlier this year in California shared the same advice on how to respond. It's worth noting that in all cases, the experts say running or hiding are the best responses.

The U.S. Department of Homeland Security has a workplace violence brochure online which offers the same advice.

Check out the video below:

My national op-ed: "A Bad Year for Big Labor"

This article I wrote about the national setbacks suffered by organized labor was published on the national website Front Page Magazine this morning:

Early in 2012, labor unions began a major political offensive aimed at regaining political initiative after a number of high-profile setbacks in 2010 and 2011. Focusing their efforts in Michigan and Wisconsin, two Midwestern states with strong union bases, their costly efforts to roll back efforts to challenge their power ended up costing them, leaving them worse off than when the year started.

In Wisconsin, labor unions poured thousands of people and millions of dollars into recall efforts to keep the GOP-held legislature and Governor from challenging their lock on state government. When the smoke cleared, Governor Scott Walker, along with most of the targeted legislators, survived recall campaigns. Efforts by labor unions to end Republican control of the Wisconsin legislature were short-lived as Republicans made good their recall losses by adding to their majority in the Wisconsin House and regaining control of the Senate in the November elections.

In Michigan, efforts by labor unions to lock in their power and blast their opponents out of power fell short. Their main effort, campaigning for a constitutional amendment that was aimed at keeping the state from enacting right-to-work legislation, failed by nearly twenty points on Election Day. Expensive efforts to target state legislators also fell short, including spending nearly a million dollars to topple the Republican House Speaker.

Emboldened by these victories, Michigan Republicans responded by pushing through right-to-work legislation, which ends the ability of labor unions to compel employees to pay union dues as a condition of employment in both private and public sector workplaces, following a move by Indiana, which became the first “Rust Belt” state to adopt right-to-work legislation earlier this year.

These political upsets were just the latest in a string of recent setbacks for organized labor which signify a growing erosion of the once-formidable power of labor unions ...

Want to read the rest of the article?

Department of Labor publishes updated Rule list

Several agencies under the U.S. Department of Labor are making steady progress towards implementing a wide range of rules and guidelines that could put major burdens upon employers, including affirmative action programs, wages, hiring practices, drug testing and safety regulations. The agency's updated Rule List for 2012 gives human resources and safety professionals a look at what the Department is working on, giving them fair warning of things to come in the next two years.

Many of the rules which are in final rule-making phase come from three agencies - MSHA, OFCCP and OSHA. On this list is the DOL's proposed hiring mandate, which would compel employers to hire a mandated quota of handicapped applicants on federally-funded projects, which has been discussed on this blog before. 

Here are some of the rules in the final phase from the U.S. DOL agencies:

• Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors
• Application of the Fair Labor Standards Act to Domestic Service
• Confined Spaces in Construction
• Electrical Protective Equipment
• Handling of Retaliation Complaints
• Lowering Miners' Exposure to Coal Mine Dust 

 Read up and see how these rules might affect you.