Category: Labor Law

December 5, 2017

What is PERB?

The New York Public Employment Relations Board (PERB) administers the Taylor Law, which extends collective bargaining rights to public employees in the state. The Taylor Law created PERB with its enactment in 1967.

Since July 2010, PERB has also administered the New York State Employment Relations Act, which governs collective bargaining for private employers in New York over which the National Labor Relations Board (NLRB) does not exercise jurisdiction. However, because the NLRB’s jurisdiction over private employers is broad, the overwhelming majority of PERB’s work still involves only public (governmental) employers.

PERB is similar to the NLRB in that it operates primarily through adjudication. Whereas the federal Labor Board processes “unfair labor practice” charges, PERB handles “improper practice” charges. Both entities oversee representation cases–determinations of which labor organization, if any, represents a particular group of employees.

PERB Board

The governor appoints the 3 members of the PERB Board, with the advice and consent of the State senate. No more than 2 of the board members can be from the same political party. Board members hold 6-year terms, with the governor appointing one member to serve as the chair.

The Board and most of the agency’s staff operate out of Albany. There are also regional offices in Brooklyn and Buffalo.

John Wirenius chairs the Board. Robert Hite is another board member. The third seat is vacant.

PERB Representation Procedures

Under the Taylor Law, public employers in New York can voluntarily recognize a labor organization as the bargaining representative of certain employees.

Where the employer has not voluntarily recognized a union to represent select employees, the union can file a petition with PERB seeking certification as the employees’ exclusive bargaining representative. The union must also file a “showing of interest” by at least 30 percent of the employees in the proposed bargaining unit.

The employer, and other interested parties (e.g., other union(s) claiming majority support), have 10 days to file a response to the representation petition. Then PERB investigates the facts surrounding the petition to determine whether there is majority support for the union representation. If necessary, there may be a hearing before an administrative law judge as part of its inquiry.

Unlike in the NLRB representation process, PERB need not hold an election before determining the question of representation. Sometimes, however, more than one union seeks representation of the same employees. Or there is insufficient evidence of support for certification without an election. Then PERB will hold an election to determine the representation status.

There are also procedures for decertification and unit clarification.

Role in Collective Bargaining

PERB oversees various procedures related to impasse resolution in collective bargaining. In other words, it gets involved when New York public employers and the unions representing their employees can’t agree on terms of employment.

The Office of Conciliation provides services related to mediation, fact-finding, and interest arbitration.

Either party to the negotiation of a labor agreement may file a declaration of impasse when it believes the parties cannot make further progress on their own. If the Director of Conciliation finds the declaration sufficient, a mediator will be appointed.

If the mediation process does not resolve the negotiations, then the matter will proceed either to fact-finding or interest arbitration. Fact-finding applies to most negotiations involving public labor negotiations in New York. However, interest arbitration prominently applies to police office and fire-fighter labor contracts.

Improper Practice Charges

When public sector unions or employers feel that their rights under the Taylor Law have been violated, they may file an improper practice (IP) charge with PERB.

Once an agency director initially reviews the IP charge and forwards it to the non-filing party, the respondent party must file an answer to the charge (among other possible responses).

Next, PERB typically schedules a conference between the parties with an Administrative Law Judge. If the conference does not resolve the dispute, then the case may proceed to a hearing before an ALJ.

If either party does not agree with the ALJ’s decision following a hearing, they may appeal to the PERB Board.

Know Before You Go

The New York Public Employment Relations Board needn’t be a scary place. Still, most employers don’t want to end up there. Yes, sometimes employers initiate PERB cases. But unions file most of them.

The best way to avoid PERB is to make sure you are following the Taylor Law. But, even then, negotiation impasse may be unavoidable at some point.

Especially if you don’t have experience with PERB and its procedures, you shouldn’t just go in to a conference or mediation assuming everything will go your way. Usually, it will be best to consult your city/town/village/county/school attorney first. If they don’t have the expertise, then you may need to also speak to a lawyer who regularly handles labor and employment matters for public employers.

November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

November 8, 2017

Peter Robb Is New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed Peter Robb to a 4-year term as the next General Counsel of the National Labor Relations Board. Robb previously served as an NLRB attorney, but has been in private practice for the past 30+ years.

The Senate voted 49-46 along party lines. Before Robb’s confirmation, Jennifer A. Abruzzo had served as Acting General Counsel since Richard Griffin’s term expired on October 31, 2017.

The new NLRB General Counsel will be responsible for investigating and prosecuting unfair labor practice cases and overseeing the NLRB field offices.

Meet the New NLRB General Counsel

Peter B. Robb most recently practiced labor and employment law with Downs Rachlin Martin PLLC in Vermont since 1995. He previously practiced with Proskauer Rose LLP.

From 1981-1985 he served as chief counsel to NLRB Member Robert P. Hunter (R). Before that, he had been an NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University and his J.D. from the University of Maryland School of Law.

About Jennifer Abruzzo

Jennifer Abruzzo became the NLRB’s Deputy General Counsel on November 4, 2013. That was the same day that Richard Griffin began his 4-year term as General Counsel. Before that, she held other positions in the General Counsel’s office. In total, Abruzzo has spent more than 20 years with the National Labor Relations Board. Her other positions have included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. She also served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, D.C.

Abruzzo is not known to have taken any significant action during her one week as Acting General Counsel.

Rosemary Collyer is the only woman to have served as NLRB General Counsel in a non-acting capacity. She held the position from 1984-1989. She is now a Senior United States District Judge on the U.S. District Court for the District of Columbia and the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court.

Status of NLRB Transition

Robb’s confirmation as the new NLRB General Counsel completes the initial transition from the Obama-era Labor Board. The General Counsel operates independently from the 5-member National Labor Relations Board, but has considerable influence over the cases brought to the Board for adjudication.

With two Trump appointees (William Emanuel and Marvin Kaplan) already serving on the Board, the 3-2 Republican majority will likely get to work rolling back many positions taken by their recent pro-labor predecessors.

However, NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. This will create a third Labor Board vacancy in President Trump’s first year in office. Morgan, Lewis & Bockius LLP partner John Ring and California attorney/politician Mike Stoker have been mentioned as potential nominees.