Trump’s global trade war is escalating and could cost thousands of American jobs.

The economy added 213,000 jobs, with manufacturing a particular bright spot. Unemployment rose to 4 percent as more Americans joined the labor force.

WASHINGTON (Reuters) – U.S. employers likely maintained a brisk pace of hiring in June while increasing wages for workers, which would reinforce expectations of robust economic growth in the second quarter and allow the Federal Reserve to continue raising interest rates.

A national CEO initiative on unconscious bias is sending tour buses around the country to promote diversity and inclusion.

U.S. employers added 213,000 jobs in June, once again surpassing economists’ expectations in a consecutive streak of positive labor market reports issued this year by the Bureau of Labor Statistics. Employment growth has averaged 215,000 jobs per month in 2018.

The Supreme Court of Canada upheld the decisions of the Quebec Court of Appeal and the Quebec Superior Court declaring Sections 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act invalid on the ground that these provisions are discriminatory.

By Ronald Miller, J.D.

Though an administrative law judge failed to explicitly apply the analysis set forth in Taft Broadcasting Co. for determining whether an employer and a union had reached a valid impasse, a divided three-member panel of the NLRB concluded that the employer violated Section 8(a)(5) by implementing its “last, best, and final offer” and unilaterally changing unit employees’ terms and conditions of employment in the absence of a valid impasse. Under Taft Broadcasting, the Board will consider the totality of the circumstances, including “bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, [and] the contemporaneous understanding of the parties as to the state of negotiations.” Applying that analysis here, the Board affirmed the law judge’s conclusion. Member Emanuel filed a separate dissenting opinion (Dish Network Corp., June 28, 2018).

On July 8, 2010, the employer and union began bargaining on a first collective bargaining agreement. They held about 25 bargaining sessions until their final face-to-face meeting on November 18, 2014, at which time they had reached agreement on many issues, but the thorniest issue remaining was whether the employer would keep an incentive-based Quality Performance Competition (QPC) system. Initially, the union fought against QPC in favor of a straight hourly wage schedule, but the parties ultimately switched positions because the QPC formulas resulted in higher compensation than the employer intended.

Final proposal. At the November bargaining session, the employer made a “final proposal” that included wholly eliminating QPC. The union had to reschedule December 2014 bargaining dates because its chief negotiator experienced a death in her family. The employer then rejected all of the union’s alternative dates and conditioned any further meetings on written responses to its final offer. Additionally, it informed the union that failure to provide such responses would result in a declaration of impasse. The union reluctantly replied with counterproposals via email, and again requested that the parties meet. It also offered to eliminate QPC for all new hires.

Let’s keep talking. Rejecting the union’s counterproposal, the employer stood by the terms of its November 18 proposal and stressed the proposal was the “last, best, and final offer.” The union spurned the employer’s requirement that it take the offer to its membership, again requested that the parties meet and confer face-to-face over proposals, and sent six specific dates in January 2015 when it was available to meet. The employer’s counsel replied that his partner would take over negotiations, but the employer never got back with the union.

One year later … Over a year later, on January 8, 2016, the employer sent the union a letter asking if it was going to accept its November 18, 2014, final offer. In response, the union renewed its insistence that the parties meet and bargain. It rejected the employer’s claim that it had permitted negotiations to languish for over a year. The employer declared impasse for the first time in a February 2, 2016, email. The next day, the union again insisted on a face-to-face bargaining session, which the employer ignored, and on April 4, 2016, it announced that it would be implementing its final offer on April 23, 2016.

Good-faith negotiations. The Board has long defined impasse as a situation where “good-faith negotiations have exhausted the prospects of concluding an agreement.” The party claiming impasse bears the burden of demonstrating its existence. The Board found that the employer failed to carry this burden.

By December 2014, the parties had bargained in numerous sessions for more than four years over a first CBA, and QPC remained the most important issue of disagreement. Even if the parties may have been near a valid impasse then, the employer never asserted impasse at that point. From the events that followed, the employer “was not warranted in assuming that further bargaining would be futile.” On December 9, 2014, the union proposed to eliminate QPC for new hires, an appreciable change in its position on this issue, and this “white flag” offered a possible resolution on the negotiation’s thorniest issue.

However, rather than explore this real possibility of fruitful discussion, the employer rejected the union’s repeated requests for a face-to-face bargaining session. Board precedent is clear that only in-person, face-to-face meetings satisfy the NLRA’s obligation to meet and confer. The employer never claimed before February 2016 that the parties were at impasse, and it denied all of the union’s requests for in-person bargaining. Moreover, the union reasonably disagreed that the parties were at an impasse.

Test for valid impasse. Accordingly, under the rubric set forth in Taft Broadcasting, the Board found that the parties were not at a valid impasse when the employer implemented its “last, best, and final offer.” Specifically, the parties’ history showed that they were engaged in difficult bargaining for an initial contract; the employer failed to bargain in good faith over the most important outstanding issue; and the union consistently sought additional bargaining sessions, reflecting its understanding that the parties had not yet reached impasse. Taken together, these facts demonstrate that the parties were not at an impasse—even considering the year-long hiatus in bargaining.

Of particular significance that impasse had not been reached was the union’s substantial movement on the QPC issue and the employer’s refusal to meet and confer once the union made this counterproposal. Accordingly, the Board affirmed the ALJ’s finding that the employer acted unlawfully by unilaterally changing unit employees’ terms and conditions of employment.

Dish Network’s QPC program has a storied history; the Board issued a news release about the ALJ’s order in January 2017, the Northern District of Texas granted a preliminary injunction in ordering the employer to restore what it called a “a drastic cut” in wages, and last month the Fifth Circuit agreed exceptional circumstances were present to grant injunctive relief to an NLRB regional director against DISH Network’s unilateral implementation of its “final offer” after declaring an impasse in negotiations with a union in Kinard v. DISH Network Corp.

Dissent. Member Emanuel would find that, at least as of April 23, 2016, when the employer implemented its final offer, the parties were at a valid impasse. Emanuel emphasized that after December 2014, the union made no attempt to contact the employer for more than 12 months, when its new negotiator contacted the union. According to Emanuel, this delay severely undermined the union’s interest in further bargaining. Further, following an additional two-month gap in communications, the employer repeated its final offer, reiterated its belief that further bargaining would be futile and stated its intention to implement the final offer. Accordingly, the dissent would find that the parties were at an impasse and dismiss the charges that the employer’s actions violated Section 8(a)(5), and find that the employer lawfully implemented the terms of its final offer.

By Brandi O. Brown, J.D.

After an explosion at an out-of-use fireworks facility warehouse killed one worker and severely burned another who had been instructed by their employer to clean it out, OSHA issued citations for safety and health standard violations to the employer. An ALJ affirmed the citation, followed by the Commission, and now the Tenth Circuit affirmed the decision as well. The appeals court rejected the employer’s arguments that a regulation on storing and handling explosives was unconstitutionally vague and was not violated because the employer lacked knowledge of the hazardous conditions; that the Secretary did not prove a violation of a regulation requiring certain trucks be used around accumulations of combustible dust; and that it was exempt from a regulation requiring a hazard communication program. The petition for review was denied (Jake’s Fireworks Inc. v. R. Alexander Acosta, June 28, 2018, Matheson, S., Jr.).

Employees injured while cleaning. In late 2012, the employer, a fireworks importer and distributor, moved its storage of fireworks to a new facility. However, it left storage containers still filled with fireworks and other materials at the old facility. In 2014, after some intermittent cleaning, the employer decided to initiate a major clean-up so that a renter could move in. Two employees were assigned to unload the shipping containers. Sadly, while doing so, a fire broke out and both employees were severely burned. One died. The other testified that, before the fire, he saw a “bright light, a spark” when the forklift went in to pick up a pallet.

OSHA citations. Various investigators came to the scene in the days that followed, including a fire investigator and an OSHA investigator, and found that fireworks and debris were strewn inside not only the exploded container area, but also the other storage containers. The OSHA investigator also found fireworks and debris on the loading dock, vegetation around the containers, and signs that rodents had chewed through the packaging in the containers. Based on the evidence, the Secretary issued a Citation and Notification of Penalty to the employer, charging it with ten health and safety violations. Three were challenged.

Storing and handling of explosives. The first citation was for the employer’s violation of 29 C.F.R. § 1910.109(b)(1), based on improper storing and handling of explosives. The employer argued that this regulation was unconstitutionally vague and, therefore, void. And even if it was not, the employer argued, it did not violate the standard, which provides that no person should store, handle, or transport explosives “when” those activities constitute an “undue hazard to life.”

The ALJ had concluded that the employer’s actions—storing damaged fireworks, leaving explosive powder on the floor of the containers, allowing grass and brush near the containers, and keeping the fireworks in cracked containers—contributed to the fire and explosion hazard, which in turn presented an undue hazard to life. To the court, a facial analysis of the regulation indicated the standard was clear and capable of common understanding, particularly in light of the conduct to which it was applied. “A reasonable person responsible for employee safety would have understood the storage and handling of explosives in the Old Facility created an undue hazard,” the court explained.

Moreover, the Secretary proved a violation, demonstrating that the employer violated the standard or had either constructive or actual knowledge of the violation. Investigators testified that the conditions of the facility “contributed to a fire and explosion hazard which presented an undue hazard to life.” The resulting accident, the ALJ had explained, supported that finding. The court affirmed that determination for “substantially the same reasons.” The descriptions provided by the investigators explained how the conditions created an undue hazard and the fire that resulted was probative of the conclusion that it was in fact a hazard. And the employer had actual or constructive knowledge. The production supervisor who assigned the job to the two employees testified that he had an opportunity to observe the contents of the container before they began working in it. Moreover, he testified that the old facility was “out-of-sight, out-of-mind” and that no housekeeping measures were applied after the switch to the new facility. He stated that prior to that time, the old facility was “never like that” and, rather, that it “was clean.”

Trucks and combustible dust. The second citation was for improper use of a liquid-propane forklift around accumulations of combustible dust. Under 29 C.F.R. § 1910.178(c)(2)(vii), only three types of trucks are allowed in the presence of combustible dust, a list that did not encompass liquid-propane forklifts. With regards to the citation under this regulation, the employer faulted OSHA for not testing the dust that was deemed combustible. However, the court (as had the ALJ) rejected the assertion that the agency had to test the dust in order to establish a violation. The directive relied upon by the employer for this argument, the court explained, was a policy statement that serves as a guideline, but it “does not prescribe requirements for the agency to find a safety standard violation.” Policy statements a re not binding on the agency in that way, the court explained. Furthermore, applying the substantial evidence standard of review, the court concluded that the Secretary proved a violation of the section.

Hazard communication. The third citation, under 29 C.F.R. § 1910.1200(e)(1), was based on lack of a written hazard communication program. The employer argued that the materials in question were exempt because they were “articles,” but the court agreed with OSHA that this was not the case. Under Sec. 1910.1200(c), the court explained, an “article” is defined to exclude items that “under normal conditions of use” do not release more than a trace quantity of hazardous chemical and do not “pose a physical hazard or health risk to employees.” A “physical hazard” is a chemical that is classified as posing one of several hazardous effects, including being explosive or flammable. However, the fireworks in question “are both ‘explosive’ and ‘flammable.’” There was ample evidence of such effects in the record before the ALJ.

The court affirmed the issuance of the citation and denied the petition to review.

LabourStart headline – Source: ITUC

LabourStart headline – Source: FLOC