Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

NLRB Chair Wilma Liebman used her last day in office to help Member Becker realize his long held dream that unions should be able to organize sub-units of an employer -- such as employees of one department -- as opposed to an entire facility. In Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the NLRB has clearly signaled that it now endorses Member Becker’s long held belief that smaller units -- such as units that consist of only one department, or perhaps even one job classification -- should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.

Specialty Healthcare involved a non-acute care nursing home.  The Regional Director certified that the petitioned for unit of full and part time CNA’s (certified nursing assistants) was an appropriate unit for an election.  The Employer filed a request for review.  In granting the request, the Board also made an unprecedented request that the parties address eight specific questions, including experiences under the Board’s 1991 decision in Park Manor Care Center, 305 NLRB 871.  This request was particularly surprising given that the employer had not asked for Board to re-visit that decision in connection with its request for review.  More troubling, however, was the Board’s request that the parties also address whether:

the Board [should] find a proposed unit appropriate if the employees in the proposed unit are ‘readily identifiable as a group whose similarity of functions and skills create a community of interest? 

In other words, should the Board approve smaller units for distinct groups of employees?

The Board has now answered this final question with a resounding “yes.”

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As Chairman Wilma Liebman’s term wound down to a close, late last week, the National Labor Relations Board issued a number of significant decisions reversing Board decisions from earlier administrations. Two of these -- Lamon’s Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011) and UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011) -- make it more difficult for employees to challenge a union’s status as their exclusive bargaining representative in the workplace.

A year after granting review and inviting briefs, in Lamons Gasket Co., the Board reversed the decision of the Board in Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), holding that a decertification petition will be barred “for a reasonable period of time after voluntary recognition.”   In addition, the Board clarified the standard for determining a “reasonable period of time” in connection with this analysis. 

In Dana Corp.,, the Board modified its “recognition-bar doctrine” to hold that an employer’s voluntary recognition of a union bargaining representative would not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) could file a petition soon after an employer voluntarily recognized a union, and in a departure from its past practice, the Board would not dismiss the petition as barred. Following the 45 day period, the recognized union would still enjoy a presumption of majority status for a "reasonable period of time.”

Regarding the 2007 decision, the Lamon’s Gasket majority declared:

[T]he extraordinary process established in Dana was, fundamentally, grounded on a suspicion that the employee choice which must precede any voluntary recognition is often not free and uncoerced, despite the law’s requirement that it be so. The evidence now before us as a result of administering the Dana decision during the past 4 years demonstrates that the suspicion underlying the decision was unfounded. Without an adequate foundation, Dana thus imposed an extraordinary notice requirement, informing employees only of their right to reconsider their choice to be represented, under a statute commanding that the Board remain strictly neutral in relation to that choice.

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National Labor Relations Board Chairman Wilma Liebman's term expires tonight at midnight, and will leave the Board with only three Members.  Chairman Liebman has served on the Board for almost 14 years after first being appointed to the Board by President Bill Clinton.  She was reappointed by President George W. Bush in 2002 and 2006, and was named Chairman by President Barack Obama in January 2009.  Chairman Liebman said in a statement:

 “It has been a privilege to serve on the Board and to work with people committed to carrying out the important mission of this agency.  The values embodied in the National Labor Relations Act – which gives Americans a voice at work and helped to build a middle-class society – are enduring.  I am confident that the Board will hold fast to those values, even in challenging times.”

Chairman Liebman's term saw what she called the Board "coming back to life after a long period of dormancy..."  Liebman's Board sought to reverse decisions handed down by the previous administration, strengthened Board-ordered remedies, and advanced significant expansions of the scope of employee rights protected by the NLRA -- particularly in the area of adapting the labor law to technological developments like social media.

Chairman Liebman also served as Member along with former Chairman Peter Schaumber during the 27 month period from December 2007 until March 2010, where there were only two Members on the Board.  The Board normally contains five Members, but the NLRA provides that a quorum of three can act.  The "two-Member" Board handed down some 600 decisions during this period -- which the U.S. Supreme Court ultimately invalidated in its decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.

So, now that the Board is down to three Members again, now what?  Republican Member Terence Flynn's nomination is stalled in the Senate.  The Congress has been taking steps to prevent a recess which would allow President Obama to recess appoint additional members.  The President's last recess appointment -- Member Craig Becker -- sees his appointment expire when Congress adjourns at the end of its term.  There is no question that the current three Members constitute a quorum, able to conduct the business of the Board.   

But with a lot of controversial Board activity currently under active consideration, and already amidst a politically charged season, one might wonder: What if the remaining Republican Member, Brian Hayes, was to step down?

Stay tuned....

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Tomorrow the National Labor Relations Board will publish a final rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. Specifically, the new rule requires that employers:

post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures....

The extensive notice (the text of which is located at pages 185 to 190 of the Final Rule) expressly states: 

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice continues, listing several examples of unlawful behavior under the NLRA, and instructs employees how to contact the NLRB with questions or complaints.

Failure to post the notice may result in the NLRB finding that that the committed an unfair labor practice under Section 8(a)(1) of the NLRA by interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.  The Board has also asserted that failure to post the notice may lead to the tolling of the six-month statute of limitations for unfair labor practice charges:

When an employee files an unfair labor practice charge, the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.

Similar to postings required by the Department of Labor, the NLRB notice must be posted in conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted. However, the NLRB is also requiring employers to post the notice electronically "on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means." A copy of the notice will be available on the NLRB's website, and employers have until November 14, 2011 to post the notice.  Federal contractors who already post the notice required by Executive Order 13496 will be deemed to be in compliance with the new Rule.

Additional Resources and Information:

• National Labor Relations Board fact sheet regarding the Rule
• DOL Notice already required for federal contractors
• Our blog post summarizing the February 11, 2011 House Committee hearings on the proposed rule
• Our Twitter feed's (@LRToday) transcript of its live-Tweeting of the House hearing

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We are honored to announce that LexisNexis has named Labor Relations Today to its list of nominees for the Top 25 Labor and Employment Law Blogs. Each year, LexisNexis honors a “select group of blogs that set the online standard for a given industry.”  We are thrilled to be included on this list with many excellent bloggers (including the editor and our fellow contributors to      Think  Before  You  Click… , the recently published treatise on social media issues in labor and employment law).

This recognition, while flattering in its own right, is just the beginning. LexisNexis wants your input to allow them to pare its initial list of nominees down to a final list of the Top 25 Labor & Employment blogs. If you find the content here at Labor Relations Today helpful or worthy, please consider taking just a few minutes to submit comments to LexisNexis before September 12, 2011. LexisNexis will consider these comments in its development of the final list.

We would like to thank LexisNexis for including us in this recognition, and all of our readers – for any comments they have submitted to LexisNexis, and for supporting our efforts here at Labor Relations Today every day.

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Now that we've published a chapter on the topic in Jon Hyman's excellent collaboration “Think Before You Click: Strategies for Managing Social Media in the Workplace,” it seems everyone wants to issue reports on social media and the National Labor Relations Board.  Earlier this month, the U.S. Chamber of Commerce released its report, “A Survey of Social Media Issues Before the NLRB.”  Today, the Board itself got into the act, as Acting General Counsel Lafe Solomon has issued General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases."

In his introduction to the report, AGC Solomon states:

This report presents recent case developments arising in the context of today’s social media. Social media include various online technology tools that enable people to communicate easily via the internet to share information and resources. These tools can encompass text, audio, video, images, podcasts, and other multimedia communications. Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

I hope that this report will be of assistance to practitioners and human resource professionals.

We agree that there is enough information on these issues now out there that employers can assess and address potential exposure.  This report also does provide an interesting insight into the way Board personnel analyzed each of fourteen highlighted cases. 

It might be a little more help to practitioners and HR professionals to match up the unnamed case studies here with the Board cases at issue.  At a quick first glance, the first case outlined appears to be Hispanics United of Buffalo, Case No. 3-CA-27872; the second, the infamous American Medical Response of Connecticut, Inc., 34-CA-12576; the third, Karl Knauz Motors, Inc., Case No. 13-CA-46452; the fifth, Lee Enterprises, Inc., Case No.28-CA-23267; the sixth, JT's Porch Saloon, Case No. 13-CA-46689; the eighth,  Martin House, Case No. 34-CA-12950; and, the ninth,  Wal-Mart, Case No. 17-CA-25030.

Both this report and the U.S. Chamber's report are useful additional resources in this quickly developing area.  If you are interested in more information, please also check out "Think Before You Click" or register for the West LegalEd webinar on this topic next Wednesday, August 24.

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Regular readers of this blog are well-acquainted with the zeal with which the National Labor Relations Board has been addressing labor law issues arising out of employee use of social media.  You may have read our many posts on this topic, listened to this podcast, or even read our contribution to the book “Think Before You Click: Strategies for Managing Social Media in the Workplace.”

The U.S Chamber of Commerce has also recently issued a valuable resource – “A Survey of Social Media Issues Before the NLRB.”  The author of this report reviewed more than 129 NLRB cases which have involved social media in some way.   Indeed, many of these cases involve social media tangentially, most are at the very earliest stage of investigation, and others may lack merit entirely. But we agree with the Chamber that enough cases have advanced sufficiently to allow employers the opportunity to review their policies and practices for compliance. 

Among the astute observations in the Chamber’s study:

• The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
• The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.
• Additional issues revealed in our survey concern whether the employer bargained with an existing union over a social media policy and union communication using social media. It is, however, important to emphasize that a significant percentage of cases in our survey involved non-union employers with no union activity.

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.  Read the study in its entirety, and consider checking out our book.  I will also be participating in a webinar through West LegalEd Center on August 24, 2011, at 11:30 a.m. EST, along with Margaret DiBianca, Esq.  You can register for "Social Media and the National Labor Relations Act in the Unionized and Non-Unionized Workplace" here.

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The National Labor Relations Board unanimously found that a newspaper publisher committed unfair labor practices during a union organizing campaign -- rejecting the employer's novel argument that so doing would violate the First Amendment.  In Ampersand Publishing LLC d/b/a Santa Barbara News-Press, 357 NLRB No. 51 (Aug. 11, 2011), Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejected arguments that the employees’ actions were not protected because they dealt with editorial content rather than wages and benefits, and that the order would interfere with the publisher’s First Amendment right to control the newspaper’s editorial content.

According to the decision, the union organizing campaign began in the summer of 2006 after a number of journalists resigned from the newspaper to protest alleged interference with their reporting of the news.  Before filing a petition at the Board, the employees presented the newspaper with a letter making several demands, first among them:

We respectfully request that you…[r]estore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side.

The letter also contained demands to recognize the union, to negotiate a contract and to invite the departed employees to return.  In the subsequent election, employees voted overwhelmingly in favor of representation by the Teamsters.

The Board rejected the employer’s preliminary defenses, noting that the employees did, in fact, demand recognition and bargaining regarding wages and hours – but also that the employees’ protest regarding editorial conduct was protected in itself.  The Board explained:

The newsroom employees’ concerted actions were not in protest against a change in the editorial stance of the paper—whether to endorse the Democratic or Republican candidate for mayor, for example. Rather, they were in protest against decisions that limited the autonomy they had previously enjoyed to report the news according to what they believed were professional norms. Restrictions on their autonomy and threats to their professional ethics directly implicated their interests as employees.

Similarly, the Board rejected the employer’s First Amendment argument that the employees had only “invoked the [National Labor Relations] Act as a regulatory means to gain control over the content of the newspaper.”  Noting that editorial content is a non-mandatory subject of bargaining, the Board explained that the employer would have recourse against its employees and their union representative if they insisted to impasse upon proposals which would implicate such.  But the Board declined to issue a decision here based upon “what may come to pass in the future.”

Ultimately, the Board held:

The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against employees because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct.

The Board ordered the employer to reinstate and make whole a number of discriminatees.  Chairman Liebman and Member Becker also ordered that a senior management official read, or be present at the reading to the employees of, the complete NLRB notice to be posted.

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Between September 13 and October 4, 2010, the National Labor Relations Board conducted the largest mail ballot election in its history, among approximately 43,000 California employees of Kaiser Permanente. The election, to determine whether whether the employees wanted to remain represented by SEIU-UHW, to select a different union, or to become unrepresented, saw over 30,000 of the eligible employees cast votes.  A majority of voters – over 18,000 -- cast ballots in favor of continued SEIU representation.

The union which lost that election, National United Healthcare Workers (NUHW), filed 118 objections.  This past Wednesday, the Board ordered the historic election to be rerun, following a Hearing Officer’s recommendations that the original results be set aside due to objectionable conduct by the employer and the SEIU-UHW.

According to the Board’s Order, SEIU-UHW and Kaiser waived their rights to file exceptions to the Hearing Officer’s report and filed a joint motion with the Board agreeing to the new election.  NUHW opposed that request – perhaps trying to buy more time to build support. The Order by Chairman Wilma B. Liebman and Members Brian Hayes and Mark Gaston Pearce -- with Member Craig Becker recused on account of SEIU’s involvement -- granted the joint motion and remanded the case to the Oakland region for appropriate action, including the scheduling of a new election.

More coverage:

• "NLRB orders rerun of union election for 43,000 California health care workers" -- WaPo
• "Board orders a repeat of California union election" -- NY Times
• "NLRB orders rerun of Kaiser Permanente union vote in California" -- Bloomberg
• "Unions set for new battle in turf war" -- WSJ

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Employees at the EBI, LLC plant in Danville, Virginia voted against union representation by the Steelworkers in an NLRB-supervised election conducted earlier this week.  The tally of ballots indicated a 281-118 vote rejection of the union. The employer manufactures products for IKEA.

This was the second NLRB election at an IKEA-related employer in Danville in the past month. Employees at a nearby Swedwood plant voted 221-69 in favor of union representation by the International Association of Machinists on July 27.

In the case of Swedwood plant, at least, there was evidence of a significant evolving trend where the American operations of European companies are pressured to remain "neutral" in connection with union organizing drives.  A Bloomberg news report put it this way:

The Danville union drive was followed by the media in Sweden, where many company workers are union members. The largest daily newspaper in Stockholm wrote that the company was behaving in an “un-Swedish way.”

Labor Notes' coverage of the election lists effort by international unions to apply pressure to organize German-owned Volkswagen, Deutsche Telekom's T-Mobile, and French-owned food services company Sodexo, among others.  Regarding the efforts of the IAM's Woodworking unit in Danville, the author notes:

...BWI took on the Danville union effort as an international campaign, calling for a boycott, sponsoring protests from Germany to Hong Kong, and at one point clogging Ikea corporate inboxes with 100,000 emails. BWI has member unions in 127 countries.

European companies with American operations should not underestimate the type of pressure UNI and the other international labor organizations are able to bring to bear on these issues in the U.S.  As the successful union organizer at this Danville plant noted:

“Virginia has the third lowest union density in any state in the nation.... If we can win in Virginia, we can win elsewhere.”

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Congress has adjourned for up to five weeks without passing a bill to extend funding for the Federal Aviation Administration, resulting in "unprecedented" furloughs due to a partial shutdown of agency operations.  Approximately 4,000 FAA employees are out of work following the July 22 failure of Congress to pass at least a temporary extension of funding for the agency. The furlough impacts engineering and electronics technicians, computer and logistics specialists, and support staff, among other workers.

At the center of the dispute is the Airport and Airway Extension Act of 2011, Part IV (H.R. 2553) which was passed by the House on July 20, 2011 by a mostly party-line vote, 243-177.  The heart of the bill, introduced by Rep. John Mica (R-FL), is a fairly standard extension of funding for the FAA, the likes of which has been passed numerous times before throughout recent history.  This latest version, however, which was rebuffed by the Senate prior to the adjournment, contains a provision seeking to significantly limit the agency's Essential Air Service Program.  House Republicans view the EAS as a costly pork-barrel program.

Some Senators, however, argue that the GOP insistence on these cuts in the short-term funding bill is retribution for the Democrats' objection to earlier versions of the bill which included Republican efforts to reverse the National Mediation Board's new rules facilitating union organizing for airline employees.  Regular readers of this blog know that last May, the NMB announced that it was changing a decades-old rule regarding the way votes are counted in union representation elections under the Railway Labor Act (RLA).  On May 17, 2010, an association of airlines filed suit to block the rule, but that challenge failed and the rule became effective as of July 1, 2010. 

In February 2011, Rep. Phil Gingrey (R-GA) introduced legislation to reverse the rule change -- the "Restoring Democracy in the Workplace Act" (H.R. 548).  The bill went nowhere beyond committee.  Soon thereafter, Rep. Mica introduced a long-term funding extension bill for the FAA (H.R. 658) -- Section 903 provided for repeal of the new NMB rule.  The bill passed the House, but stalled in the Senate -- leading to passage of a series of short-term extensions, until now.

Rep. Mica has issued a statement suggesting that the NMB issue is a red-herring in the present debate:

FACT: Senate Democrats are also arguing that the House-passed extension is about a labor provision, but the fact is there is no labor provision in the extension.

Whether the Congress reconvenes ahead of schedule to resolve their differences and fund the FAA remains to be seen -- as will the extent to which, if any, the disputed NMB rule ultimately plays a part.

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