Executive Labor Summary Executive Labor Summary - September/October 2014

by Constangy, Brooks, Smith & Prophete, LLP

News & Analysis

  • Ebola crisis: the next big organizing issue?
  • NLRB delays decision on whether employers may restrict use of their email networks
  • Senate HELP Committee approves Sharon Block for full Senate vote on nomination to NLRB

The Good, the Bad and the Ugly

  • Jazz musicians' union upbeat as New York City Council votes to support union organizing effort
  • Federal employees spend more time on union activities, government report says
  • Will bus drivers transporting Facebook employees "like" the Teamsters?

Ebola crisis: the next big organizing issue? - Labor relations are already being affected by the Ebola crisis in the United States.

On October 8 and 9, at LaGuardia Airport in New York, approximately 75 non-union employees of an aircraft cleaning contractor for Delta Airlines engaged in a one-day strike, complaining that they were insufficiently equipped and trained for work that brought them into contact with passengers' and crew members' body fluids. Their strike was supported by a local of the Service Employees International Union, which has been seeking to organize the employees.

On October 15, the National Nurses United union hosted a national conference call on Ebola for member and non-member nurses to hear about and discuss the Ebola issue. Press reports indicate that more than 4,000 nurses signed up for the call. The NNU's executive director, Rose Ann DeMoro, has repeatedly called for emergency readiness plans for Ebola and other disease outbreaks, as well as tougher and mandatory standards on hospitals' preparation for and handling of Ebola. A former official with the Teamsters and the California Nurses Association, she recently advocated withholding Medicaid and Medicare funds from hospitals that do not satisfy such standards. She has criticized the handling of Ebola by Texas Health Presbyterian Hospital Dallas, opining that the training and equipment provided to nurses and other staff was unsatisfactory. (Nurses Nina Pham and Amber Vinson became infected with the virus earlier in October after treating Thomas Eric Duncan, who died at the hospital after traveling to Dallas from Liberia. Ms. Pham has since been declared cured at the National Institutes of Health in Bethesda, Maryland, and at press time Ms. Vinson was reportedly recuperating at Emory University Hospital in Atlanta.)

According to some news reports, Ms. Pham and Ms. Vinson may have been flown elsewhere for treatment because management at the Dallas hospital feared a walkout by non-union nurses who felt they were insufficiently trained and equipped to treat Ms. Pham or Ms. Vinson without risk to themselves. Hospital management denied the reports.

In any event, labor unions including the NNU and the SEIU are trying to advance their arguably broader political agendas with a timely and targeted focus on employee safety and health, pressing President Obama, lawmakers, and regulators for tougher standards and enforcement. This comes as government agencies and employers are admittedly "playing catch-up" in their efforts to keep up with the Ebola situation as it unfolds.

Two federal agencies, the U.S. Centers for Disease Control and the Occupational Safety and Health Administration, have information about Ebola on their websites that most employers will want to share with their employees. The agencies' guidance is evolving, and each agency has updated its guidance since the beginning of October.

NLRB delays decision on whether employers may restrict use of their email networks - In an unusual move, the National Labor Relations Board reached decision on some allegations of unfair labor practices in Purple Communications, Inc., but deferred any decision on the issue that had everyone's attention: whether an employer ban on any non-business use of the employer's email system interferes with employees' Section 7 rights and violates Section 8(a)(1) of the National Labor Relations Act. The Board has been considering whether to overrule its 2007 decision in Register Guard, which upheld such bans. The Board's General Counsel has argued that Register Guard should be overruled, and the Board in April 2014 had requested input on the issue from the parties in the case and others. Consistent with the Register Guard decision, employers typically argue that they have the right to control their email systems, provided that they do not discriminate against employees who engage in protected concerted activity. In contrast, labor advocates argue that that employees should have access to the employer's email systems, just as they in some circumstances have access to employers' physical facilities. The Board panel still plans to revisit Register Guard but severed that issue from the rest of the Purple Communications case. Employers should not be holding their breath for a favorable decision from the current Board majority.

Senate HELP Committee approves Sharon Block for full Senate vote on nomination to NLRB - By a 13-9 vote largely along party lines, the U.S. Senate Health, Education, Labor and Pension Committee on September 17 recommended President Obama's nominee, Democrat Sharon Block, to fill a seat on the NLRB for a term to begin in mid-December 2014, replacing Nancy Schiffer, also a Democrat. A full Senate vote on Ms. Block's nomination is expected shortly after the November elections but before any possible loss of the Democrats' control of the Senate. Because of recent changes in Senate rules that will allow a confirmation vote to occur with only a simple majority required for cutting off debate, Ms. Block is expected to be confirmed.

Some Republican senators have opposed Ms. Block's nomination because she was one of the President's 2012 "recess appointees" who chose to remain on the Board, participating in cases despite the Noel Canning proceedings, which culminated in a decision from the Supreme Court that the appointments were unconstitutional and invalid. Sen. Lamar Alexander of Tennessee, the ranking Republican on the HELP Committee, said during hearings that Ms. Block showed a lack of respect for the Constitution and the principle of separation of powers by remaining on the Board while Noel Canning was pending.


Jazz musicians' union upbeat as New York City Council votes to support union organizing effort - The New York City Council on October 7 approved a resolution of support for an organizing effort of Local 802 of the American Federation of Musicians, called Justice for Jazz Artists. The organizing effort, which has gone on for the better part of a decade, is an attempt to have six prominent NYC jazz clubs recognize the union on behalf of approximately 3,000 musicians and agree to bargain with the union. The clubs generally treat the musicians as independent contractors, not employees. But independent contractor status is increasingly under attack on multiple legal fronts, with unions aggressively asserting employee status and coverage under the NLRA. The stated goal of the organizing effort, which has the support of many prominent entertainers including Harry Belafonte, is to gain improved pay, benefits including a pension fund, certain recording rights, and a grievance process for the musicians. To date the clubs have not agreed to the union's call for bargaining, a call that was renewed in a union statement released on the day of the City Council action. Are the days of improvisation, showing up late for gigs, and playing uncounted hours into the night numbered in NYC?

Federal employees spend more time on union activities, government report says - Recent data released by the Office of Personnel Management indicates that federal employees are spending more hours in "official time" attending to union representational business instead of regularly assigned work. According to Bloomberg BNA, an October 2014 OPM report showed that official time for union activities leaped from about 2.9 million hours in fiscal year 2008 to about 3.4 million hours – representing $157.2 million – in fiscal year 2012. The OPM report notes purported successes of agencies that have established labor-management forums under an Executive Order of President Obama, and noted that past reports have focused on the cost of official time without addressing the benefits that could be achieved through successful labor relations. The report comes after several Republican congressmen in early 2014 pressured the OPM to issue the 2012 report by April 18. The Representatives may have believed that the OPM was deliberately delaying the report due to the potential political impact of data showing more government spending for less work.

Will bus drivers transporting Facebook employees "like" the Teamsters? - Teamsters Local 853 is seeking to represent approximately 40 employees who drive buses transporting Facebook employees from San Francisco and Oakland to the social media giant's campus on Silicon Valley. The drivers work for Loop Transportation, not Facebook, but that did not deter the union from writing a letter to Mark Zuckerberg, Chief Executive Officer of Facebook, asking for him to encourage Loop to recognize the union as the bargaining representative for the drivers. According to news reports, the Teamsters letter to Mr. Zuckerberg compared the drivers' situation with that of a feudal relationship, saying, "This is reminiscent of a time when noblemen were driven around in their coaches by their servants ... Frankly, little has changed; except that the noblemen are your employees, and the servants are the bus drivers who carry them back and forth." A primary issue for the drivers seeking union assistance is having to work morning and afternoon "split shifts," with non-work time (presumably unpaid) in between.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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