DEPARTMENT OF LABOR “NEW SHERIFF IN TOWN”

Newly confirmed Secretary of Labor Hilda Solis recently attended the annual AFL-CIO Executive Council Winter Meeting in Miami. While receiving great applause and rave reviews from the assembled union bosses, Solis pledged to “put enforcement back in the Department of Labor” and assured the union chiefs that, “There’s a new sheriff in town.”

Among the specific changes that Solis promised were:

• more investigators for the Wage and Hour Division with plans to concentrate on surprise investigations to ferret out what Solis sees as widespread failure to keep appropriate records on time worked and failure to pay overtime
• enhanced enforcement efforts, including more investigators, for the Occupational Safety & Health Administration, which Solis described as a “neglected” agency under the Bush administration
• relaxed reporting and transparency requirements for unions, allowing them to spend their members’ money with less accountability.

Finally, Solis acknowledged the current economic crisis and said that job creation was her top priority. She had high praise for a training/apprenticeship program conducted by the Electrical Workers Union and spoke as though training unskilled workers for higher paying jobs will automatically ensure that such jobs will be created.

LAST CHANCE AGREEMENTS – NOT REALLY A “LAST CHANCE”

It is common for a company to deal with a problem employee through a “last chance agreement” under which the employee gets to avoid discharge in exchange for an agreement to leave quietly if the employee subsequently engages in any kind of misconduct. Such agreements are often used when the employee has tested positive for illegal drugs but has gone through a rehabilitation program. Most last chance agreements are drafted to state that if the employee violates any rule, discharge will follow with the employee agreeing to waive any and all rights to challenge the discharge.

This was the procedure used by General Electric Company (GE) in dealing with an employee who was fired for insubordination. The employee, through his union, persuaded GE to give him a “last chance” and reinstate him under a written agreement signed by the employee, his union, and GE. The employee promised that if he was discharged again for violating any rule, he would accept such discipline, would not file a grievance under the union contract, and “no legal action respecting such discharge will be filed.”

The employee was fired three months later for “unacceptable conduct and behavior” and filed charges of age discrimination under federal and state law contending that his age was a factor in the second discharge.

GE invoked the last chance agreement, but the Federal Appeals Court in Philadelphia ruled for the employee. The Court said that no agreement can waive a statutory right to be free from discrimination based on future events. Thus, the last chance agreement was simply not binding when it said that “no legal action” would be filed, and the employee remained free to challenge the discharge on grounds of discrimination under federal or state law. Consequently, the employee did get another chance to sue GE.

Despite this ruling, most companies will find it helpful to continue using last chance agreements. It may even be a good idea to continue having the agreement provide that the employee gives up all rights to challenge a subsequent discharge decision. Even if such a statement may not be fully enforceable, the statement could serve to discourage claims.

MAN BITES DOG NLRB CONVICTED OF REFUSAL TO BARGAIN

There is nothing unusual about the National Labor Relations Board finding that an employer, and occasionally a union, has illegally refused to bargain in good faith. But now, the Federal Labor Relations Authority (FLRA) has found that the NLRB has illegally refused to bargain with the union representing NLRB employees. It seems that the Agency charged with enforcing fair bargaining rules cannot follow those same rules in dealing with its own employees.

As you might expect, the issues involved are not simple. The NLRB’s Union wants to negotiate on behalf of large groups of NLRB employees and have a single contract that covers the larger groups. NLRB management prefers to negotiate on an office-by-office basis. The FLRA resolved the issue in the Union’s favor and ordered the Agency to negotiate for a single contract. Management refused to abide by the FLRA order.

The NLRB’s General Counsel Ronald Meisburg defended the Agency’s actions, saying that by defying the FLRA order and refusing to bargain, the Agency was only taking the necessary and proper steps to obtain judicial review of the FLRA’s “erroneous unit determination.

That happens often when the shoe is on the other foot – when a company believes that the NLRB has exceeded its authority in issuing bargaining rules. In such cases, the only way to get a Court to review the NLRB’s action is to refuse to bargain. When that happens the NLRB generally accuses the company of using “stalling tactics” to try and discourage employees from supporting the unionization process. Now, maybe companies will begin pointing back at the NLRB and say, “We’re just following your example.”

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