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

If you have not been following the response to President Obama's January 4, 2012 appointment of three Members to the National Labor Relations Board (along with Richard Cordray's appointment as CFPB Director), you'll have plenty of opportunity soon. 

will provide an opportunity to examine the ongoing issues before the board, as well as the affect additional pro-union decisions could have on the competitiveness of the American workforce.

Finally, The Hill reports that the House Judiciary Committee will probe the appointments via hearing as well:

Judiciary Committee Chairman Lamar Smith (R-Texas) announced Monday that his committee will hold a hearing on Feb. 15 to explore the constitutionality of the president's move, which he said sets a "dangerous precedent" for future administrations.

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Last week, National Labor Relations Board Acting General Counsel Lafe Solomon issued a second report summarizing cases involving social media issues reviewed by his office. The report is a sequel to a similar report issued by the AGC in August 2011 – around the time we contributed a chapter on the subject to Jon Hyman’s excellent compilation “Think Before You Click: Strategies for Managing Social Media in the Workplace”. General Counsel Memorandum OM 12-31 (January 24, 2012) addresses fourteen (14) recent cases. 

The press release announcing the report reiterates two points made in the earlier survey:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The Memorandum reports on these cases without any identifying information – party names, case numbers, locations, etc. – which somewhat limits its utility. This is especially so as the AGC concedes “that these cases are extremely fact-specific.”

The aforementioned Jon Hyman sees the report overall as “a mess.” He notes particular overreach in the Board’s treatment of an employer trying to assure employees, beyond any reasonable doubt, that its policy would not infringe upon rights protected by the NLRA:

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

Of Jon’s other conclusions, I agree most with #2 and #4. I think that what we are seeing is not so much a conscious decision by the Board to over-regulate employer response to social media communication, but rather the natural extension of the current Board’s efforts to broaden the scope of employee and union rights under the Act. The Board majority’s expansions of “concerted” activity (Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), “reasonable construction” in the context of the Lutheran Heritage Village-Livonia test, and the range of inflammatory conduct which will retain its protection, are woven both expressly and implicitly throughout the reasoning explained in this report. These developments will continue to have impact on all types of employer work rules and policies – not only social media policies.

But social media remains the “hot topic,” as the report puts it.  Three social media cases are currently pending before the Board:  

• Hispanics United of Buffalo, Case No. 3-CA-27872 (ALJ, September 2, 2011): The ALJ  ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The ALJ held that “[e]xplicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” Moreover, the ALJ agreed with the General Counsel that the various Facebook postings at issue did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
• Karl Knauz BMW, Case No. 13-CA-46452 (ALJ, September 28, 2011): The Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the social media postings for which he was fired did not constitute protected activity
• Triple Play Sports Bar, Case No. 34-CA- 12915 (ALJ, January 3, 2012): The Judge found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s wittholding of taxes. The ALJ held that one employee’s endorsement of a wall post via the “Like” annotation and another employee’s singular use of a profane epithet toward the employer occurred amid a discussion of their tax treatment, and were thus protected.

Check back for additional information about these cases as they proceed.

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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Yesterday, the Supreme Court declined to hear a challenge to Los Angeles' Grocery Worker Retention Ordinance that imposes a 90 day transition period on grocery stores when ownership changes. The California Grocers Association ("Grocers") filed a lawsuit challenging the ordinance on various grounds, including the claim that the ordinance is preempted by the National Labor Relations Act.

The ordinance provides that during the transition period, purchasers of grocery stores 15,00 square feet or larger must hire the predecessor's employees with at least six months tenure. Moreover, the owner can only terminate those employees for cause during the 90 day transition period. 

The Grocers claim that the ordinance is preempted by the NLRA because it interferes with negotiations between employees and employers, deprives employers of the freedom to choose their own employees, and forces employers to become successor employers under the NLRA when the predecessor employees are represented by a union. Typically, an employer becomes a successor employer under the Act when the new employer hires a majority of the predecessor's represented employees. Successor employers must then recognize the union and either accept any existing collective bargaining agreement or bargain with the union for a reasonable period of time. However, employers that do not hire a majority of the predecessor's employees are not successor employers and thus do not have to recognize and bargain with the union. Accordingly, the Grocers asserted that by forcing new grocery store owners to automatically have the obligation to recognize and bargain with the union, the ordinance is preempted by the NLRA.

In July 2011, the California Supreme Court disagreed, and held that the NLRA does not preempt the ordinance:

On the subject of employee hiring and firing, the text of the NLRA is, with one notable exception, resoundingly silent. It neither guarantees nor prohibits the retention of employees; it does not affirmatively protect new employers‘ latitude to hire and fire whomever they please, nor does it address in any way the power of states and localities to regulate the subject....

This silence leaves unrebutted the initial presumption that Congress did not intend preemption. The NLRA‘s statutory text does not disturb state and local authority to address, as these entities see fit, matters of hiring and firing, authority traditionally recognized as a core incident of their police power.

It also rejected the Grocers' claim that the ordinance impermissibly intrudes upon federal successor employer determinations: 

Additionally, we can discern in the NLRA no clear and manifest congressional intent to foreclose indirect impacts on successorship. As with any preemption question, "'"[t]he purpose of Congress is the ultimate touchstone"'" (Metropolitan Life, supra, 471 U.S. at p. 747), and on this point we find neither textual nor historical support. Successorship is a question of federal common law because "[n]o provision of the [NLRA] even mentions successorship."

The United States Supreme Court's refusal to review the California Supreme Court's decision has implications beyond the grocers in Los Angeles. Shortly after taking office, President Obama issued Executive Order 13495 requiring federal contractors and subcontractors that are successors to certain government contracts to offer employment on a "first right of refusal" to employees (not including managerial or supervisory employees) employed under the predecessor contract whose employment would be otherwise terminated at the end of the predecessor contract. Many commentators have asserted that the executive order is preempted by the NLRA on the same grounds asserted by the Grocers in its unsuccessful challenge to the Los Angeles ordinance.

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National Journal reports that House and Senate leaders have announced an agreement on the long-awaited reauthorization of the Federal Aviation Administration (FAA).  The deal includes Republicans backing down on their effort to reverse the May 2010 rule issued by the National Mediation Board (NMB) which changed the 75 year-old method for counting votes in union representation elections under the Railway Labor Act (RLA):

Republican leaders agreed to remove the offending language in the FAA bill that would have rescinded a National Mediation Board rule set under the Obama administration that makes it easier for rail and aviation workers to unionize. The remaining disputes between Republicans and Democrats on the measure have been worked out in a gentlemen's agreement among congressional transportation gurus.

In exchange for Republicans dropping the NMB rule recission, Democrats have agreed to include a provision that would raise the threshold for rail and aviation workers expressing interest in forming a union from 35 percent to 50 percent. This would mark the first time that an FAA reauthorization included any NMB changes, which is likely to make organized labor uncomfortable. But it also appeases Republicans who were angered by the original Obama administration rule that nonvoting aviation and rail workers do not count as "no" votes in unionization elections.

Lawmakers also have agreed to public hearings for all substantial NMB rule-making and tweaks to the manner in which runoff elections will be held. (The procedural change will make it easier for a "no union" option to win.) The deal also includes several oversight reports from the Government Accountability Office.

Our previous coverage of the issue:

• "National Mediation Board (NMB) Changes Union Election Rules, Easing Unionization Process" -- May 12, 2010

• "Airlines Sue To Block Easier RLA Unionization Rules" -- May 19, 2010

• "National Mediation Board Issues Revised Representation Manual" -- August 24, 2010

• "Georgia Rep Introduces Bill to Reverse NMB Rule on Union Elections" -- February 14, 2011

• "Rep. Issa (R-CA) Seeks Information From National Mediation Board Regarding "Radical" Rule Change" -- May 19, 2011

• "FAA Furlough Likely to Continue for Weeks; Parties in Congress Differ on Impact of NMB Union Election Rule" -- August 3, 2011

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Despite the fact that unions are not as prevalent in the South as in other areas of the country, the Atlanta Business Chronicle (subscription required) notes that workers at Georgia companies are frequently the subject of unfair labor practice charges handled by the National Labor Relations Board.

For example, more than 200 cases were filed with the NLRB around the country during 2011 involving workers at United Parcel Service Inc. [an Atlanta based company].

The piece also cites a recent decision, Sweetwater Paperboard, 357 NLRB No. 142 (2011), in which the Board found that the employer unlawfully solicited grievances and promised to remedy them. Specifically, the employer held small group meetings with employees for the first time after an election petition was filed and asked employees to confirm that a certain manager was the problem. It then terminated the manager two weeks before the election. 

While we note that the Board has been--and will likely continue to be--more aggressive in enforcement against companies throughout the U.S., this piece provides a nice synopsis of a few cases with a Georgia focus.

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Earlier this week, the National Labor Relations Board announced that Members Sharon Block, Terence F. Flynn and Richard F. Griffin were sworn in to office.  Ignoring the controversy that continues to swirl about their appointment, the Board's press release asserts that their seating:

bring[s] the Board to full five‑member strength for the first time since August 2010. They join Chairman Mark Gaston Pearce and Member Brian Hayes, who were Senate-confirmed to their positions in June, 2010.

In addition, the new Members have identified their Chief Counsels.  Ms. Block has named John Colwell, a former Chief Counsel to former Chairman Wilma B. Liebman.  Mr. Flynn has named Peter Carlton, a Board attorney and aide to numerous previous Members.  Mr. Griffin has named Peter D. Winkler, a longtime NLRB employee as well as Chief Counsel to numerous Previous Members.  Mr. Winkler’s father was also a Board attorney from 1938 through 1979.

Over at the Heritage Foundation's blog, The Foundry, Lachlan Markay criticizes the Board for holding a hastily-arranged "meet and greet" this week with the newly seated Members:

...the two Democrats on their way to seats at the NLRB had been nominated for less than a month before the president decided he had waited long enough. His unconstitutional appointments prevented the Senate committee handling the nominations from conducting even the most basic vetting procedures, including background checks required of all nominees for federal office.

In short, there should have been no need for a “meet and greet.” Senators could have become well-acquainted with the nominees had the president not usurped their constitutional advice-and-consent duties.

The American Constitution Society defends the President's actions, and highlights a memorandum from the Office of Legal Counsel which argues that the Senate’s “pro forma” sessions did not disrupt an actual recess:

"[W]hile Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," Assistant Attorney General Virginia Seitz writes in the memo.

   *  *  *

Bolstering these arguments is the fact that Obama only made appointments to those agencies that were unable to perform essential functions so long as the vacancies remained open.

It should be interesting, as matters unfold, to see whether there is drawn a legal distinction between the appointments of Mr. Cordray to the CFPB and Republican NLRB Member Terrence Flynn, on the one hand; and the two Democrat NLRB Members, on the other.  The President nominated Mr. Cordray and Mr. Flynn much earlier during the year, arguably allowing the Senate plenty of time to perform their roles under the "advice and consent" provision of the Constitution.  The Democrats nominated to the NLRB, however, were submitted just days before the December session "ended."

More resources and commentary:

• "President Obama's Recess Appointments Create Controversy -- Legal Bloggers Respond: LXBN Roundtable" -- LexBlog network
• "How Congressional Republicans subvert the Constitution" -- Jay Bookman's blog at AJC
• "Obama appointments no way to run a democracy" -- Diana Furchtgott-Roth in the Washington Examiner
• "OLC's Skillful Defense of President Obama's Recess Appointments and Its Possible Aftershocks" -- Peter M. Shane in the Huffington Post
• "Morning Examiner: Obama's Endless Power to Appoint" -- Conn Carroll at Beltway Confidential blog

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Following up on our posts from last week on President Obama's appointment of three new Members to the National Labor Relations Board, I did this interview with the excellent LXBN-TV:

Check out the other great video clips on LexBlog's LXBN-TV site, including this one by Ballard Spahr's Christopher Willis discussing the related issue of Richard Cordray’s recess appointment as CFPB Director; and, this one by Pullman & Comley's Daniel Schwartz, of the Connecticut Employment Law Blog on one of our favorite issues -- Employee Social Media policies.

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The political and legal reaction to President Obama's three "recess" appointments to the National Labor Relations Board continued apace today.

The Cato Institute's Walter Olsen points out that the New York Times editorial page celebrated the President's actions, including a hardy "Hear, Hear":

Announcing the appointments, Mr. Obama also asserted a welcome new credo: “When Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them.”

Yet, when President George W. Bush used the "constitutional gimmick" of recess appointment to fill several posts, the Times asserted:

It is disturbing that President Bush has exhibited a grandiose vision of executive power that leaves little room for public debate, the concerns of the minority party or the supervisory powers of the courts.

In a piece today, the Daily Caller expands on the Republican refrain that at least two of the appointees were not submitted in time to allow the Senate to consider their nominations.  The author notes that the White House's own web page listing Presidential nominations fails to include the names of Richard Griffin and Sharon Block, but includes this retort from White House spokesman Jay Carney:

Political Science Professor Sarah Binder of GWU, however, cites that very history to suggest that at least the appointment of Richard Cordray to the CFPB was simply "an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB."  She dismisses the notion that the "pro forma session" precludes the President's actions, while properly identifying the crux of the brewing constitutional issue:

The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation.

In today's Washington Post, former Attorney General Edwin Meese and former DOJ lawyer Todd Gaziano make clear their view that the ability to make recess appointments is secondary to the constitutional issue of whether the President may declare the Congress in recess:

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”

As the lawyers line up on all sides, and we head into the thick of the 2012 political season, do not expect this issue to become any less complicated or less prominently debated any time soon.

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The team here at Labor Relations Today wants to welcome a phenomenal group of commentators to the McKenna Long & Aldridge blogosphere.  Earlier this week, MLA launched its newest blog, “Politics, Law and Policy,” authored by a bipartisan group of attorneys and public policy advisors in the firm’s nationally-recognized government affairs practice.  The blog will serve as an important resource for those seeking analysis and resources on the impact of federal and state politics and public policies on a wide range of issues and debates, including health care, energy, infrastructure, taxes, transportation, cybersecurity, and campaign and election compliance.

Led by  Eric Tanenblatt, head of MLA’s National Government Affairs practice, the MLA Politics, Law and Policy blog follows law and public policy developments and political campaigns at the state and national levels.  It features legal, political and policy insights from attorneys and professionals who have held public office and served as their advisors, including governors, mayors, ambassadors, attorneys general, congressional members, and senior administration officials. 

Contributors to the Politics, Law and Policy blog from MLA’s Government Affairs practice include Speaker Emeritus Mark Burkhalter (R-GA); Cindy Gillespie, co-chair of the firm’s Health Insurance Exchange team and former special counselor to Massachusetts Governor Mitt Romney; and Governor Howard Dean (D-VT), former chair of the Democratic National Committee.  Other contributors include: former U.S. Ambassador to Canada Gordon Giffin; former Georgia Attorney General Thurbert Baker; former Washington, DC Mayor Anthony Williams; and former assistant to President William J. Clinton, Keith Mason to name a few.

We invite our readers to visit the blog and subscribe to updates at http://www.politicsandlawblog.com.  The Politics, Law and Policy blog can be found on Twitter at http://www.twitter.com/politics_law.  

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Political reaction to the President's appointments today was swift. 

Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, said he was "extremely disappointed to see President Obama recess appoint new members to the National Labor Relations Board (NLRB) and avoid the Constitutionally mandated Senate confirmation process."  In a news release, Sen. Enzi further noted:  

Two of the three nominees were submitted to the Senate on December 15 and the Senate adjourned for the year on December 16, which provided the Senate with only one day to consider and review these nominations. To date, neither of the Democrat nominees has filed the required committee application...

CNN has catalogued the reactions of "Republicans furious over recess appointments" at its 1600 Report blog. 

On the other hand, the President's action was praised by AFL-CIO President Richard Trumka:

We commend the president for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism.  Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people.

Likewise, the move was celebrated and defended by Travis Waldron at ThinkProgress:

Republicans have shown outrage at Obama for using his recess appointment powers with Consumer Financial Protection Bureau director Richard Cordray, and similar outrage is likely to follow the news of the NLRB appointments. But the past three Republican presidents also made recess appointments to the NLRB. Ronald Reagan and George H.W. Bush each made three recess appointments to the NLRB, while George W. Bush made seven such appointments.

LaborUnionReport noted months ago, however, that when President George W. Bush (R) sought to make recess appointments to the National Labor Relations Board, Democrats in Congress, with the vocal support of organized labor, employed the very same "pro forma session" tactics currently being used by the Republicans.   

Not every one analyzing the President's appointments today so casually overlooks the fact that the Senate was in pro forma session.  At The New Republic, despite general support for what the President hopes to accomplish, Timothy Noah questions the constitutionality of the President's actions:

The trouble is that the Senate isn't in recess. For complicated reasons the Republicans have the ability to prevent the Senate from going into recess, and they have done so in order to maximize the difficulty of Obama making recess appointments. The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That's the part I have trouble following.

His updates include links to some additional contrary views.

Looks like we've found our first big labor law issue of 2012.  Stay tuned.....

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Today, President Obama announced three recess appointments to the National Labor Relations Board in an effort to ensure that the Board continues to operate with a full quorum throughout 2012.  The President's action has been criticized, however, and is certain to invite legal challenge as the appointments arguably violate the Constitution's Advice and Consent mandate.  The Republican caucus in the Senate has recently sent a clear message that it did not intend to confirm any of the President's nominees and took measures to prevent these very types of actions.  The three new Board members appointed today are Sharon Block (D), Richard Griffin (D), and Terence Flynn (R).

On December 27, 2011, the recess appointment of Craig Becker expired leaving only two members on the Board, Chairman Mark Pearce, Democrat, and Member Bryan Hayes, Republican. Based on the Supreme Court’s decision in New Process Steel v. NLRB, __ U.S. __, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), the Board must consist of at least three members to a constitute a quorum.  A quorum is necessary for the Board to issue adjudicatory decisions or approve regulatory changes through rulemaking. The two-member Board consisting of only Pearce and Hayes did not meet this minimum requirement.

Frustrated with recent activist actions taken by the NLRB, including anunpopular and baseless complaint against The Boeing Company and expedited changes to the Board’s long-standing election procedure, Republicans had threatened to filibuster President Obama’s nominees to the Board. It had also taken measures to prevent recess appointments by keeping the Senate in pro forma session over the holiday break. Traditionally, the President has not made recess appointments unless the Senate recesses for 10 days or more. The pro forma session ensured that no recess by the Senate would last more than two days. Much to the consternation of the Senate, however, President Obama discarded that tradition and made the recess appointments in spite of the Senate’s reliance on historically accepted tactics to prevent them.

The NLRB provided the following background information about each appointee:

Sharon Block - Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003.  From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson.  She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

 

Richard Griffin - General Counsel for International Union of Operating Engineers (IUOE).  He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel.   From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund.  From 1981 to 1983, he served as a Counsel to NLRB Board Members.  Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

 

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act.  From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters.  From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes.  Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992.  He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

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