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

•[email protected]

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

© 2012 Jackson Lewis LLP 3

• 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

© 2012 Jackson Lewis LLP 4© 2012 Jackson Lewis LLP 4© 2012 Jackson Lewis LLP 4© 2012 Jackson Lewis LLP 4© 2012 Jackson Lewis LLP 4

• 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


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


Implementation recently stayed until, at least, Fall

2012

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


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


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


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


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


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


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?


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


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?


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


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



• 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


p

reasonable for all parties”


• 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



• 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


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.


• Diminished availability of union economic

weapons.

• No job actions pending exhaustion of lengthy

bargaining processes.

• Reduced likelihood of job actions.


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.


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


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)


ag ee e t ( app cab e to t e co t act)

Thank You!


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