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Senate Committee Approves NLRB Nominees for Confirmation Vote

Thu, 23 May 2013 20:10:19 GMT

The Senate took a step closer to confirming five nominees to the NLRB this week when the Health, Education, Labor, and Pensions Committee (HELP) Committee voted to recommend that the full Senate confirm the nominations of Democrats (and current Board members) Mark Gaston Pearce, Richard F. Griffin, and Sharon Block and Republicans Harry I. Johnson and Philip A. Miscimarra. Two of the nominees, Richard Griffin and Sharon Block, were opposed by Republican members of the Committee because their current recess appointments to the NLRB have been invalidated by the D.C. Circuit’s Noel Canning decision.

The Obama Administration has pushed to get the bipartisan slate of nominees confirmed in an attempt to end the continuing effect of Noel Canning (which was bolstered by the recent New Vista Nursing decision) which continues to put in jeopardy all decisions made by the Board with the participation of the disputed recess appointees. It is unclear when the Senate would vote on the current nominees.

Our full coverage of the recess appointments issue is available here.

Now the Unions are Complaining About Obamacare

Tue, 21 May 2013 16:40:28 GMT

Can you imagine an issue that Speaker of the House John Boehner and the President of the UFCW agree on? Well, we may have found it and you’d be surprised what it is - Obamacare!

There’s an interesting article today in The Hill reporting on how several unions – the United Food and Commercial Workers International Union, UNITE HERE, the Teamsters and the United Union of Roofers, Waterproofers and Allied Workers – are all now complaining about how the Affordable Care Act is being rolled out.

UFCW President Joe Hansen is being quoted by The Hill as criticizing the Administration because multi-employer union health and welfare funds won’t receive tax subsidies. Hansen’s point is that this contradicts what the Administration had previously said and that many UFCW locals (like other unions) agreed in contract negotiations to less lucrative wage packages or even wage freezes so that the union plans could provide better healthcare with lower (or no) employee premiums or deductibles. “You can’t have the same quality healthcare that you had before, despite what the president said,” Hansen said. “Now what’s going to happen is everybody is going to have to go to private for-profit insurance companies. We just don’t think that’s right...We just want to keep what we already have and what we bought at tremendous cost.”

Those bargaining gains, Hansen said, could be gone because employers may not have the incentive to keep their workers’ multi-employer plans without tax subsidies.

Stay tuned. This is getting interesting.

NLRB Weekly Summary of Decisions - May 6-10, 2013

Mon, 20 May 2013 14:32:38 GMT

The National Labor Relations Board (NLRB) has posted a summary of decisions for the week of May 6-10, 2013 on their website. The summary can be accessed by visiting the NLRB's website here or by clicking on the link below.

National Labor Relations Baord: Summary of Decisions - May 6-10, 2013.

Barnes & Thornburg Legal Alert Provides Full Analysis on the Impact of New Vista Nursing

Fri, 17 May 2013 18:47:50 GMT

A Barnes and Thornburg legal alert analyzing yesterday's New Vista Nursing Third Circuit case regarding recess appointments is now available on the firm's website. Our previous coverage of the case from yesterday can be found here.

One issue analyzed is the Third Circuit's distinction between the NLRB quorum requirement and the Board's ability to delegate authority to three members.The Third Circuit found that even if the Board as a whole has a valid quorum, if any member of a three-person Board panel that decides a case is not validly appointed, that is enough to invalidate the decision. This distinction is broader than the D.C. Circuit's in Noel Canning and potentially puts many more Board decisions in jeopardy. Read our full analysis in our alert available here.

Our complete coverage of the recess appointments issue is available here.

Third Circuit Follows D.C. Circuit on Noel Canning, Holds Becker Recess Appointment Invalid

Thu, 16 May 2013 18:53:14 GMT

In another groundbreaking decision against the NLRB, the Third Circuit has followed the D.C. Circuit's reasoning in Noel Canning regarding presidential recess appointments and as a consequence, has found former Board member Craig Becker's recess appointment in March 2010 invalid.

In an opinion issued today in NLRB v. New Vista Nursing, the Third Circuit held that presidential recess appointments are only valid if they occur during the intersession break of the Senate, not during any break of significant time during a Senate session (as has been the commonly held interpretation of presidential administrations for the last several decades). The Court therefore found that NLRB member Becker's appointment in March 2010 was invalid because it did not occur during a recess of the Senate. Accordingly, any decisions made by a three-member Board with Member Becker participating (which as we previously noted go back to August 2011) are also invalid under the U.S. Supreme Court's decision in New Process Steel.

This decision bolsters the credibility of the D.C. Circuit’s Noel Canning decision, which many including the Board dismissed as wrongly decided. It also virtually ensures that the NLRB's Noel Canning cert petition will be taken up by the U.S. Supreme Court. Stay tuned for updates on this issue, including a future Barnes & Thornburg client alert.

The Third Circuit case is NLRB v. New Vista Nursing & Rehab., Third Circuit Case No. 12-1936 and today’s opinion is available here (PDF).

Our previous coverage of the recess appointments issue is available here.

Under Pressure: Unions Espouse New Organizing Models and Take Action

Tue, 14 May 2013 20:58:05 GMT

Back in March, AFL-CIO President Richard Trumka summarized his view of the state of union representation in America: “To be blunt, our basic system of workplace representation is failing to meet the needs of America’s workers by every critical measure.” Last week in a Washington Post Op-Ed, this view was echoed by columnist and long-time advocate of big labor’s policies Harold Meyerson. Meyerson identified an “existential problem” facing unions, which are continuing to see membership numbers decline.

It is not difficult to understand the concern. Membership decline means one thing for unions: less dues. Measures that weakened public sector unions in Wisconsin and passage of right to work legislation in traditional union Midwest strongholds of Indiana and then Michigan, along with ever-shrinking private sector union membership, have forced labor into a place of critical self-evaluation. And what is emerging from this self-evaluation is a dedication to expanding the scope of union organizing.

In March, Trumka highlighted new targets of organizing that are being explored – non-traditional targets. Trumka noted home care workers, taxi drivers and others who don’t fit neatly into the traditional models of unionization will be targets. The point is: unions are increasingly setting their sights on individuals who “do not neatly fit the legal definition of an employee.” And businesses and employers who before may have not traditionally considered themselves targets for big labor should be paying attention.

Such efforts are not just anecdotal. As we saw in Michigan with home health care unionization, these non-traditional unionization efforts can have a lot of upside for unions, even if they are not ultimately successful in keeping their representative status. SEIU collected $34 million in dues from more than 59,000 home health care workers in Michigan before it was ultimately forced to end its status as bargaining representative in 2012.

Meyerson also points out the recent one-day strikes of fast-food workers in New York and Chicago as evidence of a changing model. Workers in other cities, including St. Louis and then Detroit this past weekend, have followed suit. Employers will be mindful to pay attention to such trends.

Meyerson explains the AFL-CIO’s plan too. And, it starts with seeking more political power – not necessarily more dues paying members. As Meyerson explains: “The first part of this plan is to expand its Working America program, a door-to-door canvass that has mobilized nonunion members in swing-state working-class neighborhoods to back labor-endorsed candidates in elections in the past decade.” Phase Two, according to Meyerson quoting Trumka, is “we’re asking academics, we’re asking our friends in other movements ‘What do we need to become?’” And Phase Three: “We’ll try a whole bunch of new forms of representation. Some will work; some won’t, but we’ll be opening up the labor movement.”

Where all of this ends up is anyone’s guess – but this is clear: the model of unionization is changing. Change means new challenges. The bottom line for employers: Be Prepared.

6th Circuit Upholds Michigan Law Which Bars Schools from Collection Union Dues

Fri, 10 May 2013 20:45:11 GMT

The 6th Circuit in Bailey v. Callahan, decided Thursday, May 9, has vacated an injunction entered by the District Court and has upheld Michigan’s Public Act 53 which prohibits Michigan’s public schools from assisting in the collection of dues and service fees for unions. The Court summarized the Union’s First Amendment challenge to the statute in this way:

“Unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.”

The problem with that, according to the majority opinion, is that this argument has already been rejected by the U.S. Supreme Court in Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009). Moreover, the Court determined that Public Act 53 does not restrict speech and is not designed to specifically suppress speech by teachers’ unions. Finally, the Court, in two paragraphs, rejected the plaintiff’s equal protection argument.

The opinion incited a lengthy dissent from Circuit Judge Jane Stranch who contended that the majority “mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination.”

With a 2-1 decision and a lengthy dissent on a Constitutional claim, one would think this is headed for an en banc determination by the full Sixth Circuit.

An Extension of Noel Canning? Becker Appointment in Jeopardy too

Wed, 08 May 2013 20:37:26 GMT

Yesterday in its NAM v. NLRB decision which struck down the NLRB posting rule, the D.C. Circuit observed a further possible extension of its earlier Noel Canning decision, noting that under the reasoning of Noel Canning, Member Craig Becker’s recess appointment to the NLRB would also be considered invalid. In the course of its opinion, the D.C. Circuit stated “To the extent that Noel Canning applies—we assume, without deciding, that it does—Becker’s appointment was constitutionally invalid.”

If the reasoning of Noel Canning is upheld, this puts into jeopardy all decisions made while Member Becker was one of three members of the NLRB, going back to August 2011 when Member Wilma Leibman’s term expired.

The Noel Canning cert petition remains pending at the U.S. Supreme Court.

Noel Canning be damned: NLRB holds D.C. Circuit Decision Does Not Require Complaint Dismissal

Wed, 08 May 2013 20:22:31 GMT

On April 30, 2013, the NLRB for the first time in a decision addressed the D.C. Circuit’s controversial Noel Canning decision and held that it does not prevent the agency from continuing to act while the case is litigated.

In Bloomingdale’s Inc., 359 NLRB No. 113 (April 30, 2013), the employer filed a Motion to Dismiss arguing that based on the Noel Canning decision that President Obama’s recess appointments to the NLRB were invalid, all actions of the agency, including the issuance of unfair labor practice complaints, were invalid for a lack of quorum. In its decision, the NLRB first called into question the reasoning of the D.C. Circuit’s decision, finding that it was in conflict with three other court of appeals decisions: Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); and U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). The NLRB also rejected Bloomingdale’s argument that Acting General Counsel Lafe Solomon lacked the power to investigate and prosecute unfair labor practice charges. The NLRB found that under the NLRA the General Counsel is an independent office appointed by the President and confirmed by the Senate. The Board concluded therefore the General Counsel’s authority to investigate and prosecute unfair labor practice charges is not a “power delegated by the NLRB but rather derives directly from the language of the NLRA.”

Stay tuned, as the impact of Noel Canning continues to reverberate.

Additional Resources

The Bloomingdale’s Inc. case is available here.
The cert petition for Noel Canning remains pending at the U.S. Supreme Court.
See all our previous coverage of this issue here.

NLRB Suffers 2nd Major Defeat As D.C. Circuit Invalidates Posting Rule

Tue, 07 May 2013 19:12:23 GMT

The Court of Appeals for the D.C. Circuit today struck down one of the centerpieces of the Obama Administration’s Labor agenda when it invalidated the NLRB’s rule requiring employers to post an NLRB-drafted “Notification of Employee Rights under the National Labor Relations Act.” Under that rule, employers failing to post the notice would be subject to an unfair labor practice charge. The D.C. Circuit today held that the NLRB departed from its “historic practice” and “negative attitude” toward promulgating rules for employers and in doing so violated the NLRA.

In reaching its decision, the Court first considered whether its decision in Noel Canning which invalidated NLRB action for failure to have a quorum controlled this case. The Court decided that Noel Canning was not dispositive because the Board had a quorum on the date the rule was filed with the Office of the Federal Register. “That the Board may have lost a quorum before its rule was published did not render its rule invalid.”

Rather than focus on section 6 of the NLRA with regard to whether the Board even has rulemaking authority, the D.C. Circuit instead turned to those sections of the rule designed to enforce the requirement that employers must post the notice – the unfair labor practice judgment that would result from non-compliance and the tolling of the time limitation for filing ULPs. The Court determined that the Rule violated § 8(c) of the Act “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.” In addition, the tolling provision was found by the Court to violate section 10(d) of the Act.

Having found all of the enforcement means to be objectionable, the Court delivered the fatal blow to the notice rule find that the posting requirement standing alone was not severable from the Rule. “Here we know that the Board would not have issued a posting rule that depended solely on voluntary compliance. We know this because the Board rejected that regulatory option in the preamble to its final rule. See 76 Fed. Reg. at 54,031. Subpart A must therefore fall along with the rest of the Board’s posting rule.”

In their concurring opinion joining in the decision written by Judge A. Raymond Randolph, Judges Karen Lecraft Henderson and Janice Rogers Brown go one step further and hold that the NLRB’s rulemaking process is invalid under section 6 of the NLRA.

A copy of the Court’s decision is available here.

D.C. Circuit Calls Out NLRB For “Interpretive Leap”

Mon, 06 May 2013 20:15:38 GMT

Pro-employer interests received an energizing shot in the arm from a recent D.C. Circuit opinion. In Flagstaff Medical Center Inc. v. NLRB, the D.C. Circuit Court of Appeals was reviewing the NLRB's 2011 ruling that the company president's remarks that “I would not be negotiating with the union” or "”you won't be negotiating with me” constituted threats that unionization would be futile and were evidence of anti-union animus. The D.C. Circuit disagreed, stating that “[t]he record does not support this interpretive leap.”

The D.C. Circuit found that these statements were made in regard to the president's attendance at the meetings and not the company's willingness to negotiate. The full opinion can be found here.

A Weekly Summary of NLRB Decisions for April 22-26, 2013

Mon, 06 May 2013 13:57:30 GMT

The National Labor Relations Board (NLRB) has updated their website with a summary of decisions for the week of April 22-26, 2013. The summary of NLRB decisions can be accessed by visiting the NLRB's website here, or by clicking on the link below.

National Labor Relations Board: Summary of Decisions - April 22-26, 2013

Department of Justice Files Writ of Certiorari with U.S. Supreme Court in Noel-Canning Case

Wed, 01 May 2013 15:07:44 GMT

The Solicitor General of the United States, Donald B. Verrilli, has filed a Writ of Certiorari on behalf of the National Labor Relations Board (the NLRB), asking the Supreme Court to review the decision by the D.C. Circuit, which we discussed here. In the Writ of Certiorari, Verrilli asks the Court to overturn the D.C. Circuits decision, which found President Obama’s recess appointment to the NLRB unconstitutional, on the grounds that…

1. “[t]he court of appeals’ decision would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause;”

2. the decision “conflicts with the decisions of three other federal courts of appeals and with the central objects of the Recess Appointments Clause;”

3. the decision “would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history;” and (4)“[i]t potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal 12 agencies.”

The response to the Writ is due to the Supreme Court on May 28, 2013.

Indiana Court of Appeals Overturns Employer's Common Construction Wage Victory

Wed, 01 May 2013 14:15:57 GMT

We rarely see reported decisions on the common construction wage, so William Wressell v. R.L. Turner Corporation caught our eye. In this case, the Indiana Court of Appeals this month ruled that summary judgment was inappropriately entered for an employer on an employee’s claim that he was paid under the wrong job classification.

Two items are of some note in the opinion. First, the trial court had struck from the summary judgment record eight paragraphs from the affidavit of a field auditor with the Indiana Department of Labor finding those paragraphs to be irrelevant and full of legal conclusions. In those paragraphs, the field auditor set forth the audit guidelines used by Indiana’s DOL as well as items which cannot be included in the fringe benefit calculation under the Indiana common construction wage.

On appeal, the Court of Appeals found that ruling to be improper and reversed noting that the information in the affidavit was “unquestionably relevant” to the summary judgment. Secondly, the Court of Appeals said that it was an open question as to whether the employee had been properly paid for the work he did. The Court acknowledged that it seemed “obvious that there would be considerable overlap between job classifications on any CCWA job site” but that it is not the case that “a cement mason is instantly transformed into a carpenter simply because he may perform a task that a carpenter also performs.”

The summary judgment entered for the employer was thus overturned and the case was returned to the trial court for determination as to whether Wressell, who was paid as a skilled cement mason, should have had hours instead paid to him at the higher rates available for a skilled carpenter or a skilled laborer. In addition, the trial court will be required to examine how the employer credited payments to the employee’s fringe benefit calculation, specifically determining whether Wressell had been properly paid for his fringe benefits.

OSHA: Non-Union Employees May Designate Union Reps as "Representative" During Inspection

Tue, 30 Apr 2013 15:46:21 GMT

In what amounts to a significant explansion of the existing regulations and OSHA's own internal Field Operations Manual into the arena of labor and management relations, a recently-released OSHA Interpretation letter states that anyone may be designated by workers at a non-union facility as their "representative" during an OSHA inspection.

Our latest Labor & Employment Alert takes a closer look at OSHA's Interpretation letter and what employers can expect going forward. As the Alert suggests, employers are well advised to consult with qualified counsel to discuss how to hande this situation in advance of the actual inspection request. A link to the full Alert appears below.

Barnes & Thornburg LLP - "OSHA Interpretation Letter Allows Non-Union Employees to Designate Union Personnel as “Representative” During OSHA Inspection."

NLRB Weekly Summary of Decisions for April 8-12, 2013

Fri, 19 Apr 2013 19:03:06 GMT

The National Labor Relations Board's (NLRB) weekly summary of decisions for April 8-12, 2013 is now available on the Board's website. The summary of NLRB decisions can be accessed by visiting the NLRB's website here or clicking on the link below.

NLRB's Weekly Summary of Decisions for April 8-12, 2013.

New Source for Information: Michigan Hires Right to Work Specialist

Fri, 19 Apr 2013 18:45:19 GMT

Now that Right to Work is a reality in Michigan, the State has hired a labor specialist to assist in implementing the laws, which went into effect March 28. Travis Calderwood was hired by the Michigan Bureau of Employment Relations in February to field questions from those who want to know more about the operation of the new law. Mr. Calderwood recently gave MLive an interview answering certain common questions. Employers with additional questions can contact Mr. Calderwood through the Bureau of Employment Relations.

See all of our previous Michigan Right to Work coverage here.

Michigan Home Health Dues Spigot is Turned Off on SEIU

Fri, 19 Apr 2013 15:45:04 GMT

The dues spigot from Michigan’s home health care workers that had been pouring money into SEIU’s coffers since 2006 has been officially shut off, according to the Director of the Michigan Department of Community Health. Director James Haverman confirmed to the Mackinac Center for Public Policy that SEIU has ended its status as bargaining representative for Michigan’s home health care workers after their contract expired in February.

As we reported last July, the Michigan Legislature passed legislation to end the ability of SEIU to deduct money from Medicaid checks for the State’s 59,000 home health care workers, which was seen as a "dues skim" by many critics. Under the arrangement, which went into effect in 2006 under the Granholm administration, SEIU was able to collect in excess of $34 million dollars. The arrangement was highly controversial because it appeared to force unionization on home health workers, many of whom were simply caregivers for a friend or relative and not employed in any professional capacity. It was criticized as a “favor” to SEIU.

Governor Snyder ended the practice last year by signing legislation outlawing the arrangement, but the law was challenged in court and a preliminary injunction was issued which allowed the dues deductions to continue until the current contract expired. As we reported, SEIU attempted to reconstitute the prior practice by sponsoring Proposal 4 on the November ballot, but that proposal was soundly rejected by Michigan voters.

Now that the contract has expired, SEIU’s dues spigot has officially run dry.

Who’s The Biggest and Who Lost the Most?

Mon, 15 Apr 2013 13:54:43 GMT

We’ve reported here on the Bureau of Labor Statistics numbers that showed that the numbers of unionized Americans continued its historic and sharp decline throughout 2012. But now that the dust has settled a little, can you guess which union remains the largest in terms of membership in the U.S.? The Teamsters? How about the UAW? Or perhaps the SEIU?

If you guessed any of those, you’d be wrong. The union with the largest membership in 2012 according to recently filed LM-2 reports remains the National Education Association which counts 3.1 million educators as members. But even the NEA shrunk in 2012, losing more than 99,000 members.

Other big losers in terms of membership numbers (from 2011 to 2012) include:

1. Teamsters – down 51,924 to 1.3 million (a 4 percent decrease)
2. Service Employees International Union – down 44,960 to 1.9 million
3. Laborers – 8,422 fewer members
4. United Food and Commercial Workers – 13,102-member drop
5. Machinists – lost 4,033 members

There were some increases though. The IBEW added 4,978 additional members in 2012. The UAW increased their membership in 2012 by 1,794 members to 382,513. The United Steelworkers also increased their membership in 2012 growing by 7,100 to 614,054 members.

Overcoming Criticism, the Preventing Greater Uncertainty in Labor-Management Relations Act Moves Forward

Thu, 11 Apr 2013 20:43:32 GMT

The Preventing Greater Uncertainty in Labor-Management Relations Act progressed towards a vote on the House floor. Overcoming criticism by Democrats, the Bill won a 7-3 vote in the House Rules Committee. As previously discussed by us here, the Bill, amongst other things, would seek to ban the NLRB from taking action which requires quorom until the Noel Canning controversy is resolved via: (1) Senate confirmation of the appointees; (2) Supreme Court decision; or (3) the 113th Congress adjourns and terms of the recess appointees expire.

This controversial Bill seems to be coming to a head just as President Obama is seeking to fill the Board with his new presumed nominees which we covered earlier this week. It is believed that a vote on the Bill on the House floor could happen yet this week.

Back to the Full Complement?

Wed, 10 Apr 2013 17:55:02 GMT

The White House today signaled its intention to push the NLRB back to its full union-friendly 5-person membership. President Obama will propose the renomination of current Board Chairman Mark Gaston Pearce along with management attorneys Harry I. Johnston III, a partner with Arent Fox in Los Angeles, and Chicago attorney Philip A. Miscimarra, from Morgan Lewis & Bockius LLP.

Previously submitted nominations for current Board Members Richard F. Griffin, Jr. and Sharon Block, both of whom were recess appointments, are still pending with the Senate. You will recall that the D.C. Circuit recently determined in the Noel Canning decision that the recess appointments of Griffin and Block as well as former member Terence Flynn were unconstitutional. That issue is on its way to the U.S. Supreme Court for decision.

Court Overturns NLRB Decision in Stella D’Oro Biscuit Co. v. NLRB

Mon, 01 Apr 2013 15:12:10 GMT

The Second Circuit recently overturned a National Labor Relations Board (NLRB) decision determining that Stella D'Oro Biscuit Co., Inc. violated the National Labor Relations Act (NLRA) when it failed to provide workers with financial statements to support claims regarding its financial condition.

Under the NLRA, an employer is required to provide evidence of its financial condition when it states to workers that labor concessions would cause undue financial hardship. In overturning the NLRB's decision, the Court pointed out a key point the Board overlooked: The NLRA only compels disclosure of financial information when an employer states it is unable pay. In this situation, however, the company simply stated it was unwilling to pay. Thus, the decision demonstrates a clear repudiation of the NLRB's attempt to change the law.

The decision can be found here.

Sharp Decline in Indiana Union Membership

Mon, 25 Mar 2013 18:12:43 GMT

Indiana union membership is at its lowest level since the 1980's. According to the Bureau of Labor Statistics, union members made up 9.1 percent of Indiana's workforce in 2012, down from 22 percent in 1983. The full story from the Indiana Business Journal can be found by clicking on the link below.

Indiana Business Journal – “Indiana Union Membership at Lowest Level in 24 Years”

Right to Work Making an Impact?

Thu, 21 Mar 2013 14:33:42 GMT

Early statistics indicate that Indiana’s passage of Right to Work legislation is already showing benefits to the state, according to the Indiana Economic Development Corporation (IEDC).

The IDEC has reported that 91 companies have told the agency that Right to Work has been a factor in their decision-making process on the location of new projects. Out of that group, the IEDC says that 64 are well along in the development process and are projected to have the potential of more than 8,390 new jobs and more than $2.7 billion in investments if they come to fruition.

The IEDC report also indicates that 39 companies have committed to new projects in the state since RTW which should produce more than 4,500 new jobs and an investment of more than $1.6 billion. Information from the IDEC can be found in the latest issue of BizVoice published by the Indiana Chamber of Commerce which is available here.

In addition, statistics recently released by the United States Bureau of Labor Statistics (BLS) indicate that the percentage of Indiana workers who are members of unions dropped from 11.3% in 2011 to 9.1% in 2012. In actual numbers, the number of union members dropped from 302,000 to 246,000. The percentage of workers represented by unions dropped from 12.4% to 10.0%. Those numbers cover both private and public sector employees. The BLS statistics can be reviewed here.

Nationally, the BLS annual report found that 11.3 percent of wage and salary workers were members of a union in 2012, down from 11.8 percent in 2011. The total number of workers belonging to a union also declined, down to 14.4 million from 14.8 million.

House Introduces Bill

Thu, 14 Mar 2013 14:08:35 GMT

The Preventing Greater Uncertainty in Labor-Management Relations Act, H.R. 1120 was introduced to the House of Representatives on Wed., March 13, 2013 in response to the flux caused by the NLRB recess appointments and the D.C. Circuit's decision in Noel Canning (previously covered here). Citing policy reasons, the bill seeks to ban the NLRB from taking action which requires quorom until the controversy is resolved via: (1) Senate confirmation of the appointees; (2) Supreme Court decision; or (3) the 113th Congress adjourns and terms of the recess appointees expire. While the bill seeks to stop the NLRB from taking action that requires quorum, it does not intend to stop NLRB regional offices from processing ULP charges.

A copy of H.R. 1120 can be found here (PDF).

NLRB Bypasses DC Circuit Rehearing and Intends to Proceed to Supreme Court

Thu, 14 Mar 2013 13:03:14 GMT

The National Labor Relations Board has announced that it will forgo an en banc rehearing of the D.C. Circuit Court of Appeals' decision in Noel Canning v. NLRB which held that President Obama's recess appointments of Terence Flynn, Richard Griffin and Sharon Block were unconstitutional. Instead, the NLRB will file a petition for certiorari with the U.S. Supreme Court which is due on April 25, 2013. Obviously there will be more to come on this story.

For our previous coverage of this story, see the follow BT Labor Relations articles:

BT Labor Relations – “D.C. Circuit Holds NLB Recess Appointments Invalid.”
BT Labor Relations – “Senator Introduces Bill to Overturn NLRB Decisions.”
BT Labor Relations – “If At First You Don’t Succeed: Obama Renominates NLRB Appointments.”

NLRB Lightens Grip on At-Will Language

Tue, 12 Mar 2013 18:56:54 GMT

Two recent advice memoranda from the NLRB’s Division of Advice suggest that the NLRB may be loosening its grip on “at-will” language and acknowledgments in employer handbooks. After sending the employer community into a bit of a tizzy during mid-2012 with rulings that common at-will language violated the NLRA, these recent memoranda seem to take a less doctrinaire approach.

In two memoranda released by Associate General Counsel Barry J. Kearney, Kearney advised Regions 21 and 32 that certain handbook language dealing with at-will employment was legal and could not be reasonably construed to restrict employee Section 7 activity.

In Fresh & Easy Neighborhood Market, Kearney gave the NLRB’s blessing to handbook language which stated:

Nothing in this [Handbook] changes this at-will relationship, guarantees you a benefit, creates a contract of continued employment or employment for a specified term, or any contractual obligation that conflicts with the [Employer’s] policy that the employment relationship with its employees is at-will.

No representative of the [Employer] other than a[n Employer] executive has the authority to enter into any agreement for employment for a specified duration or to make any agreement for employment other than at-will. Any such agreement that changes your at-will employment status must be explicit, in writing, and signed by both a[n Employer] executive and you.

In addition, the memoranda approves of an acknowledgment clause which includes the language: “I further understand that the foregoing provision regarding my status as an at-will employee may only be changed by a written agreement signed by a[n Employer] executive and me that refers specifically to this provision.”

In Windsor Care Centers, Kearney also approved of at-will language which concluded with the following statement: “Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.”

In a footnote, the Board’s Advice Division distinguishes this language from that found by an ALJ to violate Section 7 in American Red Cross Arizona Blood Services Region, 28-CA-23443 (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”).

In light of these two advice memoranda, copies of which are available here and here, as well as the advice memoranda given in Rocha Transportation and Mimi’s Café, discussed on this Blog on November 1, 2012, should more clearly set forth language that employers may use with respect to the at-will relationship.

Cease and Desist?

Fri, 01 Mar 2013 14:42:15 GMT

The United States Court of Appeals for the District of Columbia recently ordered the National Labor Relations Board (NLRB) to respond to a petition by the National Right to Work Legal Defense Foundation asking that the Board suspend further action in a pending case. The request was made in light of the D.C. Circuit's earlier ruling that two of the three current NLRB members were appointed unconstitutionally. The Washington Examiner's article can be found by clicking on the link below.

The Washington Examiner - Court orders NLRB to justify continuing operation in wake of recess appointee ruling.

AFL-CIO Demands Fully Staffed NLRB

Thu, 28 Feb 2013 15:36:04 GMT

The AFL-CIO Executive Council, which covers nearly 60 affiliated unions, issued a policy statement Feb. 26, 2013 demanding President Obama and the Senate act immediately to bring the NLRB to full strength.

As we have reported here, in its recent Noel Canning decision, the D.C. Circuit invalidated the President's January 2012 recess appointments to the NLRB. The Council called the decision "radical," “unprecedented” and “sweeping in its potential reach.” The policy statement also says, “This is an intolerable and unacceptable situation. Working people deserve a functioning NLRB that will enforce workers’ rights” and that the “labor movement must mobilize itself and its allies to demand action by the Senate and win confirmation of a package of nominees to the NLRB. We will hold senators of both parties accountable if they stand in the way or fail to act.” The policy statement can be found here.

The New York Times politics and government blog The Caucus reports that Larry Cohen, president of the Communications Workers of America and chairman of the AFL-CIO’s organizing committee said in a news briefing that the union expects Senate Democrats to "use all the options" to get nominees approved. Cohen warned that if Senate Republicans filibustered to block the nominations and Senate Democrats did not then adopt tougher rules to overcome filibusters, “we will mobilize and take action against the Senate Democrats like we never have before.” The Caucus blog entry can be found here.

Noel Canning Delays Review of “Ambush” Election Rules

Fri, 22 Feb 2013 22:02:04 GMT

Citing Noel Canning, the D.C. Circuit issued an order this week holding in abeyance an NLRB appeal regarding its “ambush” election rules. The D.C. federal district court found last year that the ambush election rules were invalid because Board member Brian Hayes did not participate in the decision. The NLRB appealed to the D.C. Circuit and oral argument had been scheduled for April. The employer’s representatives now have argued that even if Hayes had participated in the decision, the rules would still be invalid because Member Craig Becker, who voted in favor of the rules, was appointed to the Board by a recess appointment that would be considered invalid under the D.C. Circuit’s Noel Canning decision.

The order to hold this case in abeyance is notable considering that the D.C. Circuit did not specifically invalidate Becker’s appointment, which was made in March 2010. Instead, the Noel Canning decision only addressed the recess appointments made by President Obama in January 2012. However, this order indicates that the Court is willing to apply its reasoning beyond the specifics of the Noel Canning case and extends Noel Canning’s potential effects significantly.

For the time being, nothing is likely to change regarding the ambush election rules. In response to the lower court’s ruling last May, the NLRB had delayed implementation of the rules pending review by the D.C. Circuit. Now it appears the beleaguered Board will have to continue to wait for a final answer until the U.S. Supreme Court has its say on the recess appointments issue.

Our prior coverage of the ambush election rules is available here and our prior coverage of the Noel Canning decision is available here.

NLRB General Counsel Issues Guidance on Calculating Backpay under Latino Express

Thu, 21 Feb 2013 14:20:48 GMT

A new memorandum from NLRB Acting General Counsel Lafe Solomon released this week provides additional guidance for calculating backpay awards under the new standard set by the Board in Latino Express, Inc., 359 NLRB No. 44 (2012), decided in December 2012.

Latino Express changed the way backpay awards are calculated, with the Board finding that in most cases where backpay is awarded as a remedy, losing employers not only have to pay the backpay and interest, but also an additional amount to cover the extra taxes the employees had to pay due to the lump sum backpay payment. The Acting General Counsel’s memorandum outlines the procedures to be used when calculating the additional tax amounts, which is accomplished via an automated program and takes into account the employee’s specific filing status, exemptions, dependents, and state tax liability. The memorandum also requires an award of “incremental taxes,” which are defined as the taxes owed on the excess tax award. Depending on the circumstances of the employee, the new tax remedy may add significant amounts to the backpay award.

The full memorandum is available on the Board’s website here (PDF).

New Hampshire Right to Work? Not So Fast

Mon, 18 Feb 2013 15:47:20 GMT

On Feb. 13, 2013, the New Hampshire House of Representatives voted down the latest right-to-work bill and thwarted yet another attempt to join the latest RTW states (Indiana and Michigan). This is the third time that this type of legislation had been defeated in the previous three years (prior two attempts were vetoed by the former Governor) in New Hampshire. It appears that the RTW in that state is losing momentum.

Elsewhere, as previously covered earlier this week on this blog, the RTW law in Michigan is under legal attack.

If At First You Don't Succeed: Obama Renominates Recess Appointments

Thu, 14 Feb 2013 20:34:24 GMT

Sharon Block and Richard G. Griffin gained notoriety as two of the three recess appointments to the NLRB back in January, 2012. These appointments drew the ire of Republican legislators because they bypassed the normal Senate confirmation process and became the target of legal challenges as we have covered extensively.

This controversy culminated in the D.C. Circuit's January 25, 2013 decision in Noel Canning v. NLRB which held that the appointments were invalid under the U.S. Constitution. Undeterred, President Obama announced on Wednesday that he was renominating Block and Griffin to the Board.

Conversely, on the same day that the President pushed forward his NLRB picks, Speaker of the House John Boehner sent a letter to NLRB Chairman Mark Pearce asking him to suspend all Board activity until the constitutional issues concerning the recess appointments have been resolved. Obviously there will be more to come on this.

Unions File Suit Challenging Michigan’s Right to Work Law

Tue, 12 Feb 2013 16:50:32 GMT

A group of Michigan labor unions filed a lawsuit yesterday challenging the constitutionality of Michigan’s recently enacted Right to Work legislation. The lawsuit, filed in the U.S. District Court for the Eastern District of Michigan, challenges only the legislation affecting private employers, claiming that it violates the Supremacy Clause of the federal Constitution because private employers are regulated by federal labor law, not state law. The complaint asks for a declaratory judgment finding the Right to Work legislation invalid.

The unions bringing the suit likely have a tough road ahead if they are to succeed in the lawsuit. As we previously covered, a lawsuit challenging Indiana’s Right to Work law under similar theories was soundly dismissed by an Indiana federal court in January, and lawsuits in other states have similarly been unsuccessful.

The lawsuit filed Monday is the second to challenge Michigan’s Right to Work law. A previous lawsuit filed in state court claims the law should be invalidated because the way it was passed violates the state’s Open Meetings Act, citing the fact that Michigan’s Capitol Building was closed to the public due to a large number of protestors when the bills were passed on Dec. 6, 2012. The ACLU has stepped in to represent Michigan’s labor unions in that lawsuit, which is pending in Ingham County.

The new lawsuit is Mich. State AFL-CIO et al. v. Callaghan et al., Case No. 2:13-cv-10557 (E.D. Mich.). A copy of the complaint is available here.

See all of our previous Right to Work coverage here.

7th Circuit Decision Underscores Threat of Individual Liability in Withdrawal Liability Cases

Mon, 11 Feb 2013 15:41:02 GMT

The Seventh Circuit in its recent decision in Central States Southeast and Southwest Area Pension Fund v. Messina Products LLC reversed a District Court decision that two individual owners of a defunct trucking company had no personal liability for a $3.1 million in withdrawal liability to the Central States Fund. The District Court had determined that the individual owners were not “trades or businesses” under 29 U.S.C. 1301(b)(1) and therefore could not be liable as the "employer" when the trucking company they owned ceased operations causing a “complete withdrawal” from the beleaguered Central States Fund.

The Seventh Circuit disagreed and reversed. In passing the Multi-Employer Pension Protection Act, Congress decided that all “trades or businesses” under “common control” with the withdrawing employer are treated as a single entity for the purpose of collecting withdrawal liability. Because the Act does not define the phrase “trades or businesses,” the Seventh Circuit had previously decided that it would apply the Supreme Court's test from Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987), that a “trade or business” must engage in activity (1) for the primary purpose of income or profit, and (2) with continuity and regularity.

The owners of the trucking company, according to the opinion, owned the property on which the trucking company was operated as well as an adjacent property which was used for ingress and egress. The judges noted, among other items in a very detailed analysis of the relationship between the individual owners and the company, that there were no signed property leases and that prior to 2005, the company stopped paying rent to the owners.

Messina Products is a must read for anyone dealing with issues involving individual liability for withdrawal liability under the MPPAA particularly where there are leasebacks of real estate owned by company owners.

The case is not finished with this opinion, however. Because the District Court granted judgment on the basis that the individual owners were not engaged in a “trade or business,” it did not reach the second part of the liability test as to whether the individual owners are under common control with the obligated company. In addition, the court also noted that Messina Trucking, the withdrawing employer, initiated arbitration under 29 USC 1401(a)(1) to challenge the merits of the withdrawal liability. So, there is more to come on this one.

Should Obama's NLRB Appointees Resign?

Fri, 01 Feb 2013 16:37:21 GMT

Tennessee Senator Lamar Alexander recently opined that President Obama's recess appointees -- Members Griffin and Block -- should resign in the wake of the D.C. Circuit's January 25, 2013 Noel Canning decision: According to the Senator:

"As ranking member of the Senate committee with jurisdiction over the NLRB, I am calling on Sharon Block and Richard F. Griffin Jr. to resign immediately. The court’s decision means that none of the 219 decisions in which they have participated is valid — and no decision they make in the future will be valid.

In slipping through these so-called 'recess' appointments, the president’s administration attempted to skirt a constitutionally required step: seeking 'the advice and consent of the Senate' for executive and judicial nominations as outlined in Article 2, Section 2, of the Constitution."

We’ll keep you posted on any developments. In the meantime, Senator Alexander’s op-ed piece can be found here.

Senator Introduces Bill to Overturn NLRB Decisions

Thu, 31 Jan 2013 17:53:57 GMT

Fox News reports that Republican Senator John Barrasso "introduced legislation Wednesday that would freeze or overturn virtually every decision the National Labor Relations Board has made in the past year." This comes in the wake of the D.C. Circuit's January 25, 2013 Noel Canning decision which we covered here.

The story notes that the bill faces an uphill battle in the Democrat controlled Senate. The full story can be found by clicking on the link below.

Fox News – “GOP senator proposes bill that would freeze NLRB rules, decisions.”

D.C. Circuit Holds NLRB Recess Appointments Invalid

Fri, 25 Jan 2013 18:04:24 GMT

In a groundbreaking decision issued this morning, the D.C. Circuit Court of Appeals has held that President Obama's appointments to the National Labor Relations Board (NLRB) in January 2012 (appointing Democratic members Richard Griffin and Sharon Block and Republican member Terrance Flynn, who has since resigned) were invalid as recess appointments because the Senate was not in recess. And because the appointments were not valid, the D.C. Circuit held that the challenged Board order was also invalid for lack of a three-member quorum.

This is a major decision by the D.C. Circuit that will have far-reaching consequences. Presumably, all decisions made by the NLRB since the invalid appointments can now be challenged for lack of quorum. Stay tuned for updates on this issue, including a future Barnes & Thornburg client alert and more in-depth coverage of the D.C. Circuit decision.

The D.C. Circuit case is Noel Canning v. NLRB, D.C. Circuit Case No. 12-1115 and today’s opinion is available here.

Our previous coverage of the recess appointments issue is available here.

New York Times Examines NLRB Social Media Rulings

Wed, 23 Jan 2013 21:24:44 GMT

The New York Times published an interesting article yesterday summarizing the NLRB's recent focus on employer social media policies. This is a topic we have been following for many months. See our prior posts here.

The Times article correctly notes these rulings “apply to virtually all private sector employers” including non-union workplaces. It describes several recent cases and highlights social media policies issued or updated by several large employers, including Wal-Mart, GM and Costco. The New York Times article can be accessed in its entirety by clicking on the link below.

The New York Times – “Even if It Enrages Your Boss, Social Net Speech Is Protected”

Union Membership Numbers Continue to Decline

Wed, 23 Jan 2013 21:06:53 GMT

As measured by the Bureau of Labor Statistics, the percentage of workers who are union members declined in 2012 for the fifth year in a row. The BLS annual report found that 11.3 percent of wage and salary workers were members of a union in 2012, down from 11.8 percent in 2011. The total number of workers belonging to a union also declined, down to 14.4 million from 14.8 million. As reported by the Washington Post, current union membership is the lowest since the 1930s.

Notably, states that have seen significant labor law fights in the last year were among those who saw the greatest decline in union membership. Indiana, which enacted Right to Work legislation in 2012, saw its union numbers decline from 11.3 percent to 9.1 percent. Similarly, Michigan, which also passed Right to Work as well as limiting public sector collective bargaining last year, saw its union membership decline from 17.5 percent to 16.6 percent. Wisconsin’s union membership rate fell to 11.2 percent from 13.3 percent, a decline that may have been affected by Wisconsin’s limits on public bargaining passed in 2011.

The full BLS report is available on the Department of Labor’s website here.

Seventh Circuit Upholds Controversial Wisconsin Collective Bargaining Law

Wed, 23 Jan 2013 20:51:26 GMT

The Seventh Circuit on Friday upheld Wisconsin’s controversial Act 10 limiting collective bargaining rights for most of the state’s public employees. Wisconsin Governor Scott Walker and the Republican-held Wisconsin legislature had passed the law in February of 2011, despite significant protests by Wisconsin Democrats and union leaders. Union leaders challenged the law in federal court, claiming that it was unconstitutional, and the Western District of Wisconsin overturned some provisions of the law and upheld others in a ruling in March 2012. On Jan. 18, the Seventh Circuit reversed portions of the district court’s ruling and upheld the law in its entirety, dismissing all of the union’s arguments.

This decision is another blow to union-backed court fights, which have been unsuccessful in challenging state laws limiting collective bargaining rights in other states as well. As we posted yesterday, union constitutional challenges to Indiana’s Right to Work law were also dismissed in federal court last week.

The Wisconsin case is Wisconsin Education Association et al. v. Scott Walker et al., Seventh Circuit Case No. 12-1854. Friday’s opinion is available on the Court’s website here.

Right To Work Challenge Dismissed in Federal Court

Tue, 22 Jan 2013 15:45:52 GMT

Operators Local 150 has been soundly tossed out of federal court in its effort to overturn Indiana's Right to Work Act. In a decisive 24-page opinion, Judge Philip Simon of the Northern District of Indiana examined and dismissed every challenge to the Act raised by the Operating Engineers.

The Union challenged the statute under the Contracts Clause, the Ex Post Facto Clause and the Equal Protection Clause of the U.S. Constitution. They further challenged the Act as being pre-empted by the National Labor Relations Act and finally raised issues with it under the Indiana Constitution. Simon dismissed all of the federal constitutional challenges as failing to state a claim. He dismissed the state constitutional claims without prejudice on federalism grounds under the 11th Amendment noting clear authority from the United States Supreme Court that claims against state officials under state law cannot be considered in federal court.

Simon concluded that “For better or worse, the political branches of government make policy judgments. The electorate can ultimately decide whether those judgments are sound, wise and constitute good governance, and then can express their opinions at the polls and by other means. But those are questions beyond the reach of the federal court, which instead is limited to analysis of particular legal arguments that the challenged legislation runs afoul of preemptive federal labor law or the U.S. Constitution.”

A copy of the opinion is available here.

The Associated Press has quoted Union Spokesman Ed Maher as saying that they are considering an appeal of Simon's decision.

Though the Operators’ Local 150 challenge has been dismissed, a challenge brought under the state constitution by the Steelworkers Union continues in state court in Lake County, Indiana. That case contends, among other things, that the statute violates an Indiana constitutional protection that bars demands for services from someone “without just compensation.” Judge George Parras denied the state's motion to dismiss that action last October. (You can see our discussion of that decision here.)

NLRB Now Permits Front Pay in Lieu of Reinstatement in Board Settlements

Mon, 14 Jan 2013 20:41:06 GMT

The NLRB has traditionally refused to include the concept of front pay in lieu of reinstatement in formal Board settlements. As such, if an employer was interested in resolving an NLRB case that involved employee terminations, but not interested in bringing those terminated employees back to work, the only avenue was a non-Board settlement. That may change based on a new guidance memo the Acting General Counsel issued Jan. 9, 2013.

Noting that most agreements involving waivers of reinstatement in exchange for payment of front pay "are entirely non-Board" settlements, and that Agency policy should favor Board settlements, not discourage them, the AGC “decided to modify existing policy to permit Agency settlements to include front pay.” The Board's Case Handling Manual will be revised to reflect this change. The updated manual instructs that offers of front pay in lieu of reinstatement be communicated to alleged discriminatees, but without pressuring them to waive reinstatement. The Region is "serving only as a conduit for the proposal" pursuant to the updated language in the Manual.

The memo also requires that waiver of reinstatement be in writing, unless otherwise authorized by Operations-Management in a particular case. The full memo with updated language in the Case Handling Manual can be found here.

2013: Will NLRB Have Its Bobby Ewing Moment?

Wed, 09 Jan 2013 15:42:03 GMT

2012 was a tough year for stare decisis when it comes to federal labor law. It seemed as though every other week (and sometimes more often) longstanding NLRB precedent was overturned or ignored. From dues check-off rules to bargaining-unit definitions, decades old rules were swept aside by a Board seemingly determined to tip the balance against employers (and frequently employees) in favor of unions. 2012 was also a year in which the NLRB sought to inject itself into issues long thought to be beyond its jurisdiction, including by invalidating arbitration agreements and at-will employment provisions in employee handbooks and finding social media policies that merely require civility by employees to be unlawful.

However, 2013 could find that all of the NLRB’s administrative actions, like the 9th Season of the television series Dallas, never really happened. Pending before the DC Circuit is the Noel Canning v. NLRB, just one of the many cases challenging the propriety of President Obama’s recess appointments to the NLRB. Should that case decide that the recess appointments were not proper, the actions of the NLRB since January 2012 would be voided, as they took place without a proper Board. Keep your eye out for these decisions as they have the potential for returning federal labor law to its pre-2012 status, at least temporarily.

Our Top 10 Labor Law Events of 2012

Mon, 31 Dec 2012 13:48:06 GMT

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

You can read our previous coverage of D.R. Horton by clicking on the following links:

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

And the Hits Keep On Coming! Board Alters Approach on Witness Statements

Fri, 28 Dec 2012 21:08:27 GMT

For the last 30 years, the NLRB has held that employers were not required to produce to a Union copies of witness statements gathered in the course of an employer's disciplinary investigation. In Anheuser-Busch, Inc., 237 NLRB 982 (1978), the Board had held that witness statements were confidential material and that “an employer’s duty to furnish information under Section 8(a)(5) of the National Labor Relations Act (NLRA) does not encompass the duty to furnish witness statements.” The Board concluded in that case that “requiring either party to a collective bargaining relationship to furnish witness statements to the other party would diminish rather than foster the integrity of the grievance and arbitration process.”

Not any more. The Board in two separate opinions this month reversed its stance on this issue and now will use a "balancing test" to determine whether witness statements must be disclosed.

In Stephens Media, 359 NLRB No. 39 (2012), and Piedmont Gardens, 359 NLRB No. 46 (2012), both issued in mid-December, the Board dropped Anheuser-Busch's categorical exemption of witness statements from the duty to furnish information and switched to the balancing test articulated in the Supreme Court's Detroit Edison decision. Under this balancing test, employers must conduct a fact-specific analysis that balances a union’s need for the information against the employer’s legitimate and substantial confidentiality interests.

Copies of the decisions are available here and here.

Happy Holidays from the NLRB!

Thu, 27 Dec 2012 20:08:35 GMT

With member Hayes’ term on the NLRB expiring on Dec. 16, 2012, the Board noted the occasion with a virtual blitzkrieg of pro-Union decisions all of which were announced in time for Christmas and the holidays. Even the Board’s website, www.nlrb.gov, acknowledged the decisions as “significant.” Most of them were decided during Hayes’ last week on the Board but release was delayed for editing and formatting which is not uncommon.

Here’s a quick run through on the decisions:

Facebook firings. The Board overturned the firing of five employees in Hispanics United of Buffalo. In a 3-1 decision, the Board found the online chatter to be protected concerted activity. Member Hayes found it to be employee “venting” and he dissented from the protected concerted activity finding.

Beck Rights. The Board also chipped away at the rights of Beck objectors to refuse to pay for Union political activity. Though the Board set the case back down for further analysis, it did note in its opinion in United Nurses & Allied Professionals (Kent Hospital) that it was inclined to adopt an approach using a rebuttable presumption that lobbying expenses are in fact germane (and thus chargeable to a Beck objector). The National Right top Work Foundation has already charged that the Board is attempting to “gut” the Beck decision.

Bargain over Discretionary Discipline. In Alan Ritchey, Inc., the Board created a prospective rule that where there is no collectively bargained grievance-arbitration system, employers are required to bargain with the Union before it applied discretionary discipline against any of the employees.

Losing Employers Must Pay Taxes as Part of a Make Whole Remedy. In most cases where backpay is awarded as a remedy, losing employers not only have to pay the backpay (and the interest remedy that this Board previously created), employers must also gross up the backpay award to cover the extra taxes the employees had to pay due to the lump sum payment. A copy of the decision in Latino Express is available here.

Jurisdiction over Charter Schools. In Chicago Mathematics & Science Academy, the Board actually disagreed with the petitioning teachers union and concluded that it and not the Illinois Educational Labor Relations Board had jurisdiction over a teachers union in a charter school.

Post-Expiration Collection of Dues. And as we have recently reported here, the Board also determined in WKYC-TV, that employers will continue to be required to deduct and pay union dues even after the expiration of a collective bargaining agreement.

In a decision issued at the start of this flurry of activity (Dish Network), member Hayes showed his exasperation with the current state of the Board. Dish Network deals with the Board’s right to exercise discretion and reconsider precedent and while Hayes acknowledged in that decision that the NLRA does not prevent that, Hayes’ parting shot was that “more is afoot here.” He criticized the Board for demonstrating a willingness to reconsider precedent not urged by the parties to the appeal. Hayes noted that the majority was “paving the way for the Board in any case, regardless of the scope of exceptions filed or issues litigated, to address and overrule precedent…To the extent that nay member of the public has any faith left that this Board holds even a semblance of allegiance to concepts of stare decisis and due process, that faith should evaporate with this opinion.”

House Panel Report on NLRB's Pro-Union Bias Says What Employers Have Long Been Thinking…

Fri, 21 Dec 2012 16:55:43 GMT

The House Committee on Oversight and Government Reform – chaired by Rep. Darrell Issa, R-Calif. – released a staff report accusing this NLRB of the obvious…pro-union bias.

The report covered all of the greatest hits including the NLRB's case against Boeing, the Specialty Healthcare decision regarding “microunions,” quickie election and posting rules, as well as the recess appointments. Amongst other adjectives, the report describes NLRB officials as “gleeful” following the pro-labor resolution of the Boeing matter.

While this report is not groundbreaking, we will watch closely to see if this report gains exposure in this news cycle.

The full report can be found here.

Board Overturns a 50-Year Old Precedent

Thu, 20 Dec 2012 21:36:11 GMT

The NLRB's relentless march towards reshaping U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues may be withdrawn from employee checks after the expiration of a collective bargaining agreement.

The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 in which it had previously held that once a collective-bargaining agreement had expired, if that agreement contained a dues check-off clause, the employer could unilaterally stop withdrawing dues from employee paychecks.

Under the Board’s new holding, after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union. The Board majority noted that requiring employers to honor dues check off arrangements post contract expiration “is consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes to terms and conditions of employment."

Member Hayes in his dissent argued that this was yet another example of the Board taking away long-standing economic weapons from employers and intentionally attempting to alter the “playing field” in favor of unions. Hayes wrote:

“[M]y colleagues know well that an employer’s ability to cease dues checkoff upon contract expiration has long been recognized as a legitimate economic weapon in bargaining for a successor agreement. The ability of parties to wield such weapons is an integral part of the system of collective bargaining…Indeed, even in times of union boycott and other economic actions in opposition to an employer’s legitimate bargaining position, the employer will be forced to act as the collection agent for dues to finance this opposition. This is the unspoken object of today’s decision…”

A copy of the Board’s decision is available here.

But Wait! There's More: The 11th Right to Work Misconception

Tue, 18 Dec 2012 18:13:54 GMT

We'll take the liberty of adding an 11th item to Scott Witlin's excellent list of the top-10 most common right to work misconceptions.

11. Right to work laws do not necessarily allow employees to immediately stop paying dues.

The devil's in the details. In numerous Indiana union shops, workers asked to be freed from their dues-paying obligations after Right to Work was enacted. Michigan employers may be experiencing this already as well. Some Indiana employers stopped deducting their union dues. But it's not the simple. As we have discussed before in this blog, employers must retrieve their employee's dues authorization cards before they can stop taking union dues from their paychecks. As the NLRB has previously held in several cases, the language in the dues authorization cards control as to when and how an employee can revoke his or her consent to the dues deductions.

Top-10 Misconceptions About Right to Work Laws

Fri, 14 Dec 2012 15:06:57 GMT

2012 saw two states adopt new right to work laws: Indiana and Michigan. As a result, the concept of right to work has been prominent in the news for the first time in decades. From the recent protests in Michigan, as well as those earlier in the year, it would seem that many protesting do not understand what a right to work law does and does not do. The label “right to work” has become been so laden with the baggage of being anti-union, that few beyond labor lawyers and union officials understand what these laws are and what they do.

In the face of these misconceptions, here are 10 facts about right to work laws:

1. Right to work laws do not ban collective bargaining;
2. Right to work laws do not prohibit employees from joining unions;
3. Right to work laws do not invalidate existing collective bargaining agreements;
4. Right to work laws do not make it more difficult for unions to organize non-union workers;
5. Right to work laws do not outlaw strikes;
6. Right to work laws do not allow employers to discriminate against employees because of their union activity;
7. Right to work laws do not allow employers to fire strikers;
8. Right to work laws do not allow employers to ignore lawfully selected employee unions;
9. Right to work laws do not allow employers to cut employee pay; and
10. Right to work laws do not take away any rights from the employees as opposed to unions.

What right to work laws do is simply take away the ability of a union to force an employer to fire an employee if the employee does not want to pay the union the costs of union dues and/or initiation fees. In non-right to work states, Federal labor law permits an exception to the discrimination provisions in the statute and permit unions to require that employers fire employees who do not pay money to the union.

Big unions hate these laws because it hurts them economically. They cannot impose upon employees—frequently without any choice on the employees’ part—the obligation to pay the union money for the privilege of keeping their jobs. Unions hate these laws, not because it impacts the rights of the employees, but because it hits the unions and their officials in their piggy banks. The fewer union-dues payers, the less money there is for the unions to pay their officers and employees. In addition, when workers choose not to join a union, they remain free of any threat of union discipline (expulsion or fines) if they choose not to follow the union’s rules. This means the union officials have less power over the workers whose interests they are supposed to represent.

Thus, while right to work laws make things harder for unions, there can be no doubt that they preserve rights and freedoms for individual workers.

Right to Work Passes, Signed by Michigan Governor

Wed, 12 Dec 2012 02:28:29 GMT

As expected, the Michigan House voted today to enact the pending Right to Work bills. Michigan Governor Rick Snyder signed the bills this evening, making Michigan the 24th Right to Work state in the nation. The changes to the law become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013.

The full text of the final bills is available on the Legislature’s website and can be accessed by clicking on the links below:

SB 116(private employees)
HB 4003(public employees)

Right to Work Bills Pass Michigan House and Senate

Fri, 07 Dec 2012 18:48:15 GMT

On Dec. 6, 2012, the Michigan House and Senate passed bills that, if signed by Governor Rick Snyder, will give private and public sector employees the right to not pay union dues to a union representing an employer's employees as a condition of employment. The legislation addressing public sector employees includes all public employees except for police officers and firefighters. If this legislation becomes law, Michigan will become the 24th Right to Work state in the United States.

Because applicable procedural rules require that there must be a five-day period before Michigan's House and Senate can vote on the other chamber's bill, the legislation has not yet made its way to Governor Snyder's desk. During this five-day period there is expected to be a heavy lobbying effort by organized labor as well as proponents of the proposed legislation. Yesterday Governor Snyder said he will sign both pieces of proposed legislation into law when they reach his desk. If passed and signed, it is anticipated this proposed legislation will become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013.

Given the impact this legislation would have on both private and public Michigan employers, Barnes & Thornburg's Michigan office will present a program regarding the practical impact that Right to Work may have on Michigan employers. The programs are scheduled for Jan. 3, 2013 and Jan. 17, 2013. More detailed information about these presentations will be available as soon as the Right to Work law is signed.

The Right to Work bills are House Bill 4003, House Bill 4054, and Senate Bill 116.

See also:

Right-to-Work Legislation Speeds Ahead in Lansing (Detroit Free Press)

Right-to-Work Bills Win Approval from Michigan Senate, House (Mlive.com)

NLRB Hears Oral Argument in Noel Canning v. NLRB

Fri, 07 Dec 2012 18:27:03 GMT

On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three judge panel of the United States Court of Appeals for the D.C. Circuit. Our prior posts on this topic can be found here. Barnes & Thornburg attorney Teresa Jakubowski was present for the oral argument. As a result, the BT Labor Relations Blog is able to offer our readers a quick play-by-play.

A. Background

The primary issue before the Court is the validity of President Obama’s most recent recess appointments to the National Labor Relations Board (“NLRB”). When the Senate is in recess, the Constitution allows a president to unilaterally install nominees to posts that ordinarily require Senate confirmation. When President Obama made the appointments at issue, the Senate considered itself to be in session. The White House claimed, however, the pro forma session did not count because the Senate was not really available to make confirmations. Why does this matter? If the recess appointments were invalid, the NLRB would lack the three-member quorum necessary to render binding decisions.

B. The Oral Argument

Noel Canning's counsel devoted his allotted time for initial argument solely to the recess appointments, and Chief Judge Sentelle expressed concern that discussion of the merits of the underlying NLRB order not be overlooked. The questions directed to Noel Canning's counsel focused on why the D.C. Circuit should involve itself given its prior efforts to stay away from separation of powers disputes and recess appointment issues, whether a pro forma session of the Senate is an actual session, what constitutes a “recess,” and whether the court even has jurisdiction over this issue given it was not raised in the proceedings before the NLRB.

The Department of Justice argued on behalf of the NLRB. The questions directed at the Department of Justice focused on historical practice regarding recess appointments, the significance between intrasession and intersession recesses, the purpose of the constitutional provision for recess appointments, and the minimum length required for a break to be considered a recess. In support of its position, the Department of Justice emphasized “100 years" of precedent (Andrew Johnson made an intrasession recess appointment) and the need to maintain the balance of power between the Executive Branch and the Senate. Chief Judge Sentelle challenged the Department on its reading of the recess appointments clause, noting that it appeared to apply only to a specific recess (intersession), and not any general recess. He also suggested that grammatically, the recess appointment power extends only to vacancies arising during a recess, not those that merely exist during a recess. The Department urged the Court to consider the “functional practicality” of the clause, to which the Chief Judge responded: “when was the last time we decided a constitutional question based on functional practicality?”

During his rebuttal argument, Noel Canning's counsel simply referred back to the historical practice regarding recess appointments and the contention that pro forma sessions are no different than other sessions of the Senate.

C. Reading the Tea Leaves

Given the challenges directed towards both sides, the outcome is uncertain. One the one hand, the Court did challenge the Department of Justice’s interpretation of the recess appointment clause and repeatedly emphasized the clause’s original purpose. One the other hand, the Court expressed some reluctance to address the recess appointment issue, noting that the Executive Branch had not been consistent in its interpretation of that power, that the Senate had not clearly determined the meaning of recess under its procedures, and that the Senate has its own tools for responding. Regardless of the outcome, though, the Court’s decision will most assuredly have far reaching implications.

Hand It Over: D.C. Circuit Affirms NLRB Ruling on Data Request

Thu, 06 Dec 2012 18:25:36 GMT

KLB Industries manufactures aluminum extrusions at its Bellefontaine, Ohio, facility. Since taking over the plant in 1997, KLB had signed three collective bargaining agreements with its 16-member union. On Sept. 20, 2007, 10 days before the third agreement expired, the parties began negotiating a fourth agreement.

During negotiations, KLB claimed that it was facing increased competition from Asian manufacturers, rising production costs, and decreased productivity. Based on these claims, KLB demanded substantial wage concessions. The union subsequently sought information about customers and pricing to support the company's claim that it was experiencing competitive pressures that required it to seek wage concessions. The National Labor Relations Board (NLRB) ultimately ordered the company to turn over this information.

Affirming the Board's ruling, the D.C. Circuit observed the “liberal discovery-type standard” the Board has applied to union requests for competitive data in this context. According to the Court, “[W]here, as here, an employer raises a competitiveness claim as its central justification for wage concessions, a union is entitled to information verifying that claim.”

The Court's decision can be found here.

Debate Continues Over President's NLRB Recess Appointments

Wed, 05 Dec 2012 21:06:54 GMT

Several media outlets and political pundits are weighing in on the ongoing legal battle over President Obama's recess appointments to the National Labor Relations Board. Our prior reports on this topic can be found here.

On one side, the Wall Street Journal editorial board opined that President Obama “is exceeding his constitutional authority” with the appointments. They argue that following the President's logic would mean he “could presumably make recess appointments every weekend, or during lunch.” The editorial concludes that the recess appointments were a "power grab" and should be overturned in court. The full editorial can be found here.

A contrary opinion is penned for the Huffington Post by Victor Williams, Clinical Assistant Professor, Catholic University of America School of Law. Williams writes that the appointments were made during a twenty-one day Senate break when “the Senate conducted no business and considered no communications from the president.” He argues the "the seconds-long pro forma sessions held every three days were embarrassing faux sessions lacking legal or constitutional significance." His full post can be found here.

With several cases pending on this issue, the courts of appeal around the country will begin to weigh in this topic in the coming weeks.

Advice memo from NLRB again affirms D.R. Horton, finds employer arbitration agreement unlawful

Fri, 30 Nov 2012 16:34:27 GMT

The NLRB continued to hold its position on arbitration agreements in an advice memorandum released last week, finding that an employer’s mandatory arbitration agreement violated the NLRA despite the fact that it explicitly excluded claims in front of the NLRB and was silent as to whether it prohibited arbitration on a class basis. The Division of Advice applied the Board’s holding in D.R. Horton, 357 NLRB No. 184 (2012), and held that the fact that the employer interpreted the agreement to prohibit class claims was enough for the agreement to restrict employee’s Section 7 rights.

The D.R. Horton case has been widely criticized as contradicting U.S. Supreme Court cases regarding arbitration (see AT&T Mobility LLC v. Concepcion) and is currently on appeal at the Fifth Circuit.

The NLRB’s advice memo is Concord Honda, Case No. 32-CA-072231, available on the Board’s website here.

See our previous coverage of D.R. Horton:

Board Finds Certain Arbitration Agreements Violate NLRA

California Court of Appeals Not Persuaded by D.R. Horton Inc. v. Michael Cuda

D.R. Horton Files Reply Brief in Appeal of NLRB Decision

In the Spirit of DR Horton, ALJ Extends Protections to Job Applicants

NLRB ALJ Finds Employee Arbitration Policy Unlawful

D.C. Circuit refuses to enforce Board’s bargaining order, finds lawful impasse

Fri, 30 Nov 2012 16:30:24 GMT

The D.C. Circuit Court on Tuesday reversed a decision by the NLRB which had found that Erie Brush & Manufacturing Corp. had unlawfully declared impasse and refused to bargain with SEIU. The D.C. Circuit found that while the employer and the union were only in disagreement on two issues – union security and arbitration of grievances – this was enough to put the parties at impasse, noting that “impasse on a single critical issue can create an impasse on the entire agreement.” The Court held that the fact that the union had mentioned mediation as a possibility was not enough to support a finding of no impasse, quoting the NLRB dissent – “the mere invocation of mediation does not somehow magically ward off a deadlock.” Therefore, the employer did not violate the law by refusing to bargain with the union.

The case is Erie Brush & Manufacturing Corp. v. NLRB, No. 11-1337 (D.C. Cir. Nov. 27, 2012), available on the D.C. Circuit’s website here.

NHLPA Decertification in the Works?

Wed, 28 Nov 2012 16:14:46 GMT

Jeff Z. Klein of the New York Times has a great blog post this morning saying momentum is building for the NHL Players Association (NHLPA) to follow the strategies used by the players’ unions in the NBA and NFL lockouts – decertify the union and file suit as a “trade association” against the league and the owners under the anti-trust laws in an effort to break the lock-out.

Here's a link to Klein's story – Slap Shot: “How the N.H.L. Players’ Union Would Decertify”

NHL Lockout: Day 73

Tue, 27 Nov 2012 16:06:50 GMT

The NHL lockout, which has reached Day 73, continues to be one of the biggest labor law stories of the year. And with 2 1/2 months of the season already canceled, you've got to believe that it is becoming less and less likely that we'll see any major league hockey in the 2012-13 season. Already the Winter Classic has been cancelled as has the All-Star weekend originally scheduled for Columbus, Ohio.

The NHL and the Players Association appear to be at a standstill in negotiations. The parties have not met since last week and the latest news is that three mediators from the Federal Mediation and Conciliation Service in Washington have been assigned to the dispute. Negotiators who have used FMCS mediators know that they can be helpful and creative in moving obstacles out-of-the-way during negotiations. But at the end of the day, they have no power or authority to compel the bargaining parties to reach agreement. As result, if the parties can't agree on a resolution to the dispute, the mediators cannot close the deal.

As CBS Sports has reported, some grumbling has started among more veteran players ready to return to the ice. In addition, the NHLPA appears to be considering whether decertification of the union would be an appropriate strategy at this point. You'll remember that the NFL Players Association used the decertification route during their recent lock-out with the NFL.

To pursue this strategy, 30 percent of the players would need to sign a petition seeking decertification of the NHLPA. That petition would be submitted to the NLRB and a decertification election would then be held. Alternatively, the NHLPA could disclaim any interest in representing the players. That strategy, as recently used in the NFL labor dispute, would allow the players to sue the league under the antitrust laws to end the lock-out. What makes it more difficult here is that seven of the NHL's franchises are in Canada and not subject to U.S, law on this issue. However, as noted by Bill Daly of the NHL, such a move would clearly signal the end of hockey for this year. In addition, the decertification strategy creates leverage but doesn't get a deal done.

Here are several news reports with the latest on the NHL labor negotiations.

Washington Times: “NHL lockout 2012: Federal mediation part of the talks”

Sporting News: “NHL Lockout: Don’t get too excited about mediator involvement, experts say”

CBS Sports: “NHL lockout: Your daily hockey fix for Day 73”