Employers Group Blog Connection

California Legislative Update & NLRB Action

Posted by Nicole Vierzba on Thu, Sep 1, 2011

The California State Legislature is wrapping up its legislative session and we are actively monitoring hundreds of legislative bills that are awaiting final action. One bill that we worked diligently to defeat is Assembly Bill 46-a measure that would have potentially jeopardized more than 1,000 businesses and tens of thousands of jobs. It would have also taken the unprecedented step of the State Legislature singling out a municipal entity and disincorporating a city. Employers Group actively opposed this measure and the California State Senate ultimately defeated this bill.

Other legislative measures that we are tracking include workers’ compensation legislation, use of credit reports as part of the hiring process, and several other employer-focused legislation initiatives.

On the Federal front, the National Labor Relations Board has rendered two decisions that will have a significant negative impact on employers. The following content is provided by the NAM (National Association of Manufacturers), one of our advocacy partners.

Lamons Gasket Co. Decision
First, the National Labor Relations Board issued an ideological 3-to-1 decision in Lamons Gasket Co., case overruling the 2007 Dana Corp decision. The Dana Corp decision permitted employees or rival unions to challenge the employer recognition of a union based on card check if supported by 30 percent of the employees in the bargaining unit and the challenge was filed within 45 days of the employees being officially notified of the employer's voluntary recognition of a union.

Wednesday's ruling, however, takes federal law back to once again, barring an election petition for a "reasonable period" of time after an employer's voluntary recognition of a union based on a showing of a majority of employees. The Board defines this "reasonable period of time" as a range from "six months to one year, depending on the circumstances."

Specialty Healthcare and Rehabilitation Center of Mobile Decision
In another, 3-to-1 decision issued by the NLRB Wednesday, the Board in Specialty Healthcare and Rehabilitation Center of Mobile found that Certified Nursing Assistants at a nursing home "may comprise an appropriate unit without including all other nonprofessional employees." The Board states that "where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share 'an overwhelming community of interest' with employees in the proposed unit."

Again, in this decision, the Board overturned a previous law established in the 1991 Board decision, Park Manor. The Park Manor case adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Today, however, employees at such facilities will now be subject to the same "community-of-interest" standard that the Board has traditionally applied at other workplaces.

Having a multitude of unions in one workplace is not a very efficient model, but it is now a reality that has been foisted upon employers by an un-elected board. Further, by effectively changing policy on what constitutes an appropriate bargaining unit, the Board may have violated procedural rules and overstepped their authority again….see NLRB posting requirement, which requires private-sector employers whose workplaces fall under the National Labor Relations Act to post the employee rights notice where other workplace notices are typically posted.

For additional information or if you have any questions regarding the above material, please contact us.


Ken Tiratira
Executive Vice President

Topics: Employer, Legislation, advocacy, workers comp, Federal, NLRB