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

Dems Push Board Nominees Through HELP Committee: Law360 ($$) reports that yesterday, the Senate Health, Education, Labor and Pension (HELP) Committee voted to send President Obama's nominations to the National Labor Relations Board to the full Senate for a vote. Interestingly, the vote was incredibly partisan, as Republican nominees Harry Johnson III and Philip Miscimarra sailed through the process, while Democrats Sharon Block and Richard Griffin each received nine "no" votes from Republicans on the Committee.

The Board has been in hot water since January's famous Noel Canning ruling out of the D.C. Circuit found President Obama's recess appointments to be invalid. Senate Democrats, commenting on the committee meetings, noted that the law is still uncertain and the Board should continue to function until the Supreme Court decides the issue.

“We can all have our opinions about this, but there’s a conflict and there’s going to be a decision. What we’re missing in this debate so far is whether this board is going to function,” said Sen. Robert P. Casey Jr., D-Pa. “Unless you believe the board should be shut down, we should all be working toward making sure there is a functioning board.”

UMass Nurses Set to Strike: Priyanka Dayal McCluskey of the Telegram writes that UMass Memorial Medical Center management and representatives for the more than 1,000 nurses at UMass worked through the night last night in an effort to avoid a planned strike by the nurses, set to begin at 6:00AM this morning. The major disagreement between the two sides continues to involve staffing levels.

UMass has taken steps to respond to the potential strike, hiring temporary replacements and rescheduling elective surgeries and other voluntary procedures. We will keep you posted as the negotiations near a conclusion.

Labor Officials Allege ULPs by Maine Manufacturer: Matt Hongoltz-Hetling of the Morning Sentinel reports that labor leaders have accused ALCOM, a Maine-based manufacturer, of illegally firing five workers who began discussions about organizing a union. A spokesman for the AFL-CIO railed against the firings, saying they were clearly in violation of the National Labor Relations Act.

"This is a clear example of an employer firing people for union activity and trying to create a climate of fear in the workplace when workers are trying to organize," [the official] said.

ALCOM, through a spokesman, issued a strong denial, stating that the company supports the right of workers to choose. We will keep you posted as the matter moves through the investigative process.

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Today a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the National Labor Relations Board's notice-posting rule issued by the Board in August 2011. Under the NLRB's notice-posting rule, all private-sector employers subject to the National Labor Relations Act would be required to post a notice to employees informing them of their rights under the Act. The court struck the rule because it found that two of the rule's enforcement mechanisms violated employers' free speech under Section 8(c) of the National Labor Relations Act, and that the third enforcement mechanism violated the Act's limitations period in Section 10(b) for filing unfair labor practice charges. 

Shortly after the rule was promulgated, employer groups filed suit challenging it, and the Board initially postponed implementation until April 30, 2012. On Friday, March 2, 2012, in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), the District Court struck down certain elements of the rule, but held that the NLRB did have the authority to require private-sector employers to post these notices, and that the NLRB could consider an employer's "knowing and willful" failure to post the notice as evidence of an unlawful motive. The plaintiffs challenging the rule appealed that decision to the D.C. Circuit Court of Appeals.

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President Nominates Two Republicans, Democrat to the NLRB: Earlier today, President Obama announced that he is nominating three individuals to serve as members of the National Labor Relations Board (NLRB). The President is nominating two Republicans and a Democrat to the Board, which has been thrown into chaos since January's Noel Canning ruling out of the D.C. Circuit. The two Republicans, Philip A. Miscimarra and Harry I. Johnson, III, both have backgrounds in representing management officials in labor relations disputes. In contrast, Democrat and Board Chair Mark Pearce has been renominated to his current position. President Obama, in announcing his nominations to the Board, urged the Senate to act quickly to confirm his selections.

“With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation," Obama said in a statement. "I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”

Earlier this year, President Obama renominated appointees Sharon Block and Richard Griffin to the Board. Both Block and Griffin are Democrats, with Block having previously served as counsel to the late Sen. Edward Kennedy. Griffin, in turn, was formerly employed as an attorney for the International Union of Operating Engineers (IUOE).

The President's move to nominate a full five members to the Board comes on the heels of a possible vote in the House of Representatives that would shut the Board down for all practical purposes until its members are confirmed by the Senate. The White House is hoping that Senate Republicans will approve of the bipartisan nominees, particularly because both Miscimarra and Johnson have been blessed by GOP leadership. However, there is still cause for concern from the President's office because some Republicans have stated that they would rather shut the Board down then let it continue to make "out of control" decisions.

In any event, it it clear that President Obama will attempt to push his nominations to the Board through the Senate, as he sees the NLRB as playing a critical role in the current economic recovery.

"By enforcing workplace protections, upholding the rights of workers and providing a stable workplace environment for businesses, the NLRB plays a vital role in our efforts to grow the economy and strengthen the middle class," Obama said in a statement.  

The nomination of three individuals to the NLRB is just the beginning for President Obama and his selections. It will now be up to the Senate to confirm the nominees before they can officially take their posts with the NLRB. We here at @LRToday will be watching these events very closely and will certainly keep you posted with any updates.

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Newly-Unionized CenturyLink Workers File ULPs: Carolina Bolado of Law360 ($$) reports that CenturyLink telecommunications employees in Florida are claiming that their employer has made several unilateral changes to their health care plan in retaliation for the workers forming a union. The union filed the charges with the National Labor Relations Board approximately two weeks ago, which further assert that CenturyLink has failed to pay out previously negotiated bonuses.

“The employer unilaterally changed the employee's status to ineligible in retaliation for the vote for representation, which was certified on Feb. 14, 2012 by the NLRB, without notifying the union or bargaining in good faith,” the workers said in the complaint.

A spokeswoman for CenturyLink denied the allegations, stating that the company is continuing its obligation to bargain in good faith with the newly-minted union.

Union at Detroit Bakery Guilty of ULPs: David Muller of MLive.com writes that a National Labor Relations Board Administrative Law Judge found that the United Catering Cafeteria and Vending Workers International Union (UCCVWIU) forced Awrey Bakery in Detroit to fire one of its workers involved in negotiations with the Bakery over a new contract. The ALJ specifically provided that such malfeasance is detrimental to the bargaining relationship. As a result of the ruling, the UCCWVIU will be compelled to pay the fired worker lost wages and benefits.

Students, Professors Plan Massive Walkout at IU This Week: James Cersonsky of The Nation writes that students and staff members at Indiana University are expected to leave class and walk off the job this coming Thursday and Friday to protest fee hikes and wage freezes. Further, the students and staff are hoping to raise awareness of diversity issues on campus.

"We're trying to encourage a culture of resistance, where different people who are involved in the struggle can organize on their own," a student organizer, who asked to remain anonymous, told The Nation. While there are regular general assemblies for strikers and supporters, many participants "go back to plan things on their own basis." 

In addition to the students and staff walking out, more than 100 faculty members have signed a petition standing in solidarity with the "strikers."

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As noted earlier this month, the National Labor Relations Board announced that it, in consultation with the Department of Justice, intends to file a petition of certiorari with the United States Supreme Court in Noel Canning v. NLRB rather than seek an en banc rehearing with the D.C. Circuit Court of Appeals. In Noel Canning, the D.C. Circuit determined that President Obama’s recess appointments of Sharon Block, Terrence Flynn, and Richard Griffin to the Board were not valid, and thus the Board lacked a quorum to act. The petition for certiorari must be filed by April 25, 2013.

The Department of Justice formally articulated its position regarding Noel Canning late last month when it submitted a letter brief to the Third Circuit Court of Appeals in NLRB v. New Vista Nursing & Rehabilitation. The Justice Department asserts that the Third Circuit should not follow the D.C. Circuit's interpretation of the word "the" before "Recess" in the Constitution because it is inconsistent with how "the" is used in other parts of the Constitution:

The court reasoned that the definite article “suggests specificity.” Ibid. But as the en banc Eleventh Circuit explained, the word “the” can also—as it does here—refer generically to a particular class of things, e.g., “the pen is mightier than the sword,” rather than a particular thing, e.g., “the pen is on the table.” Evans, 387 F.3d at 1224-25 (citing dictionary usages). And far from being a purely modern usage, the Constitution itself elsewhere uses “the” in precisely this manner. For example, the Adjournment Clause requires both the House and Senate to consent before adjourning for more than three days “during the Session of Congress.” Art. I, § 5, cl. 4 (emphasis added). Because there are always two or more enumerated sessions in any Congress, the reference to “the Session” cannot be limited to a single one. Similarly, the Constitution directs the Senate to choose a temporary President “in the Absence of the Vice President,” Art. I, § 3, cl. 5 (emphasis added), a directive that applies to all Vice Presidential absences rather than one in particular.

The Justice Department also argues that the past practice of recess appointments lends credence to the administration's interpretation:

The longstanding historical practice of the Executive Branch, in which the Legislative Branch has acquiesced, further reinforces the understanding that the Recess Appointments Clause permits intrasession recess appointments. “[T]raditional ways of conducting government give meaning to the Constitution,” and “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” Mistretta v. United States, 488 U.S. 361, 401 (1989); The Pocket Veto Case, 279 U.S. 655, 689 (1929).

Conspicuously, however, the Justice Department sets forth no argument refuting the claim made by the employer in Noel Canning that the Senate was not in recess when Members Block, Griffin, and Flynn were appointed. The D.C. Circuit's opinion did not decide whether the Senate, despite holding pro forma sessions, was in a intrasession recess when the NLRB members were appointed. Therefore, the alleged recess appointments could still be held unconstitutional even if the Department of Justice is correct in its assertion that recess appointments can occur during an intrasession recess.

Meanwhile, Laboratory Corp. of America Holdings filed suit in federal court last month against the NLRB claiming that the Board lacked authority to conduct a union election. In January, a union filed a petition with the NLRB seeking to represent LabCorp's patient service technicians and patient site coordinators in New Jersey. LabCorp moved to dismiss the petition because:

without a quorum of three properly appointed members, the Board lacks the statutory authority to direct or certify an election, as well as the authority to delegate any of those powers to the Regional Director.

The Regional Director denied the motion and issued a Decision and Direction of Election. LabCorp then filed suit seeking to enjoin the election on the following grounds:

15. Because the Board does not currently have sufficient members to constitute a quorum, it cannot legally take any action, including but not limited to ordering, conducting, or certifying the results of any representation election. See 29 U.S.C. § 153(b).

16. Ordinarily, the Board delegates responsibility to make initial determinations on these issues to its Regional Directors, but the source of that authority remains the Board. See 29 U.S.C. § 153(b). During periods when the Board is unable to act, including periods when it lacks the quorum required by law, delegations to Regional Directors are inoperative. See Laurel Baye, 564 F.3d at 473-475. Thus, the Regional Directors lack the authority to order or certify the result of any representation election.

17. Moreover, in connection with directing elections or certifying election results, actions taken by a Regional Director pursuant to a delegation of authority may be appealed to the Board. See 29 U.S.C. § 153(b). And because it lacks a quorum, the Board cannot rule upon any appeal of a Regional Director's decision.

LabCorp argues that it will suffer irreparable harm if the NLRB proceeds with the election including having to disclose "a sensitive 'Excelsior list' of employees' full names and home addresses to the union," devote "business resources to the election effort as opposed to its core business operations," and suffer a divided work force where "unlike a lawful election order, the divisions engendered by this order have no end date because the Board cannot certify the election results in favor of either party."

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The National Labor Relations Board's appeal of a May 2012 order striking down its "quickie election" rule in Chamber of Commerce of the United States of America v. NLRB, Case No. 12-5250, remains pending in the U.S. Court of Appeals for the District of Columbia Circuit. However, on Tuesday the Court issued a one-page order strongly suggesting how the court will decide the case if its decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), is upheld. The order states:

Upon consideration of the court’s opinion and judgment issued January 25, 2013, in No. 12-1115, et al. - Noel Canning, a Division of the Noel Corporation v. NLRB, it is

ORDERED, on the court’s own motion, that this case be removed from the oral argument calendar for April 4, 2013, and held in abeyance pending further order of the court.

In May 2012 a federal district court granted summary judgment to the U.S. Chamber of Commerce in its lawsuit against the NLRB's "quickie election" rule.  The  Board rule amended its election case procedures to shorten the time between the filing of a petition and the conduct of a union representation election. The district court ruled that the final rule was promulgated without a proper quorum of three Board Members:

Two members of the Board [(Chairman Pearce and Member Becker)] participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.

As we noted two weeks ago, Noel Canning should impact decisions and rules issued by the Board during Member Becker's term because he was a recess appointee appointed during an intrasession recess. If intrasession recess appointments are unconstitutional as set forth in Noel Canning, the Board would have had no quorum to act on the "quickie election" rules regardless of whether Hayes "participated" in the vote on the "quickie election" rule.

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In the two weeks following the D.C. Circuit Court of Appeals’ monumental decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), there have been a number of developments as employers, labor groups, and employees grapple with the practical implications of the court's holding that President Obama's recess appointments to the National Labor Relations Board are unconstitutional. However, none have provide much, if any, guidance.

Very shortly after the decision issued, NLRB Chairman Mark Pearce released a statement disagreeing with the D.C. Circuit's ruling and asserting that the Board believes that the recess appointments will ultimately be upheld. Accordingly, he stated that the Board will continue to perform its statutory duties and issue decisions despite the cloud over its authority.

Since then 38 Republican Senators have demanded that Members Block and Griffin resign. In addition, Republican Senators introduced three bills designed to limit the NLRB’s authority in the wake of Noel Canning: NLRB Freeze Act of 2013 (S. 180), Advice and Consent Restoration Act (S. 188), and Restoring the Constitutional Balance of Power Act of 2013 (S. 190). Given that both the Senate and the White House are controlled by Democrats, these bills have virtually no chance of becoming law and thus likely have no practical implications in the foreseeable future. 

As a result, all sides are looking for signals from the courts on how the recess appointments issue might ultimately be resolved. This week the focus was on U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia as they both turned down separate bids by HealthBridge Management LLC to appeal an order requiring it to reinstate striking nursing home center workers. HealthBridge sought a partial stay of a federal judge's December preliminary injunction under 10(j) of the NLRA based on the controversy over the NLRB recess appointments following Noel Canning and whether the Board would be able to issue a final order. Neither Justice Ginsburg nor Justice Scalia provided a reason for rejecting the applications, but given that there was no final order by the Board involved, this development likely provides no useful insight into how they might ultimately rule on the constitutionality of the recess appointments.

As such, two weeks to digest and react to Noel Canning has provided no clarity or certainty regarding its practical implications. Rather, employers, unions, and employees remain in a quandary as they try to determine the status of past Board decisions and election certifications and to navigate the NLRB processes going forward. Indeed, even the things we do know for certain today are likely to lead to more questions and uncertainty in the near future. Accordingly, 2013 will be a dynamic year for labor law with Noel Canning setting the stage as follows:

1. The Board will continue to hear and process petitions and unfair labor practice charges. First and foremost, the D.C. Circuit's ruling has no effect on the NLRB's ability to receive and process petitions and investigate and prosecute unfair labor practice charges that do not require any intermediary rulings by the Board. This means that the Agency will continue to operate as normal with the Regional offices processing petitions, holding elections, and investigating unfair labor practice charges. Similarly, administrative law judges will continue to hold hearings and issue recommended decisions. Moreover, given Chairman Pearce's statement, the Board will continue to act and issue decisions under the presumption--correctly or incorrectly--that it has a quorum to act under New Process Steel. Thus, each new Board decision--especially precedent altering decisions--will only complicate matters further.
2. The Board's 2012 (and 2013) decisions still remain Board law. Not only will the agency continue to operate as normal, but it will continue to apply all 2012 and 2013 decisions as governing Board law as the Board is not required to follow Noel Canning in other cases. This includes the flurry of late year decisions affecting dues checkoff, discretionary discipline, and confidential witness statements. As a result, expect the Regional offices, the Office of the General Counsel, the ALJs, and the Board to continue to rely upon those decisions in making their determinations despite any objection by the parties as to their validity.
3. The D.C. Circuit is going to see a lot more cases, but they may not be decided any time soon. Given that the D.C. Circuit (at least for the time being) has provided a guaranteed mechanism for overturning any decision by the current Board, any party aggrieved by a Board order is likely to file with the D.C. Circuit (all petitions for review of final orders by the Board may be filed in the D.C. Circuit in addition to the circuit where the case arose). However, after Noel Canning, the D.C. Circuit announced that it is holding all cases involving a Board decision since January 4, 2012 in abeyance. From an enforcement strategy, will the NLRB start racing respondents to the courthouse by immediately filing petitions for enforcement in other circuits immediately after issuing decisions?
4. The Notice Posting litigation is unaffected by Noel Canning. As the Board issued the Notice Posting rules in August 2011 just prior to then-Chairman Liebman's departure, the Board had a quorum to act when it issued its rules requiring employers to post notices about employees' rights under the Act.
5. But Noel Canning could impact the "Quickie Election" rules litigation and other pre-2012 decisions . The Board's new election rules purportedly issued in December 2011 were supported by only Chairman Pearce and Member Becker, whose term expired December 31, 2011. However, Member Becker was a recess appointee appointed by President Obama in March 2010. As such, the argument can be made under Noel Canning that Becker was not appointed during an intersession recess and thus there was no quorum in December 2011 when the new election rules were purportedly passed. Moreover, if Becker's recess appointment was unconstitutional, the decisions by the Board after Liebman's term expired are also invalid (such as D.R. Horton involving mandatory arbitration and class claim waivers). Further, what becomes of the decisions where Becker was the deciding vote on a three-member panel even when Liebman was still there, and does it matter from a practical standpoint? In case you were wondering, all four Members at the time participated in Specialty Healthcare, so it is unaffected by Noel Canning.

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Class Waiver Ban Comes Before 5th Circuit: Abigail Rubenstein of Law360 ($$) reports that the Court of Appeals for the 5th Circuit entertained arguments yesterday as to whether employees can be required to sign arbitration agreements waiving their ability to bring class claims. Attorneys for petitioner D.R. Horton argued that the 5th Circuit should join a myriad of other courts that have rejected the National Labor Relations Board's ruling that employees have a right under federal labor law to bring class action claims.

“The intellectual gymnastics from the NLRB in avoiding the clear precedent from the Supreme Court in some instances and completely ignoring it in others flaunts that Supreme Court authority and cannot stand,” [Mr.] Chapman, [attorney for D.R. Horton] told the court.

The Board, however, argued that the whole point of labor law under the National Labor Relations Act is to allow for the pursuit of protected and concerted activity. Allowing employers to compel employees to sign class action waivers, the Board contended, would effectively gut the employees' ability to act for their mutual aid and protection.

Interestingly, at the suggestion of the Judge, neither side made much of the D.C. Circuit's ruling in Noel Canning, which invalidated President Obama's recess appointments to the Board. We will be watching this decision closely.

Van Drivers Protest Labor Conditions in Palm Beach: Lona O'Connor of the Palm Beach Post reports that a group of van drivers represented by the Amalgamated Transit Union (ATU) protested outside of the headquarters of Metro Mobility Management (Metro) in response to what they deem to be unfair labor conditions. Specifically, the drivers are complaining of low pay, 12-hour shifts, and difficult schedules.

Metro and the ATU have had run-ins in the past. In 2008, after the ATU won a certification vote to represent the van drivers, Metro refused to bargain with the union, which violated the National Labor Relations Act.

Meanwhile, complaints of bad service have hounded Metro for years. The county commission is set to decide whether to renew Metro's contract. We will keep you posted as the situation develops.

Chamber President Weighs in On Recess Appointment Debacle: Politico has published on op-ed written by Chamber of Commerce President Thomas J. Donohue addressing the fallout over the D.C. Circuit's invalidation of President Obama's recess appointments to the National Labor Relations Board. Donohue posits, with all of the uncertainty surrounding the current state of labor law, what could possibly happen next for regulated businesses.

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It was going to be hard to top 2011 in terms of unique and dynamic labor law developments. But 2012 may just have lived up to the task.

Seeking to ensure that the Board would have a quorum to operate during the year, on January 4, 2012, President Obama attempted the "recess" appointment of three members.  Despite the controversy swirling about these appointments, the Board continued apace to expand the rights of employees and unions under the National Labor Relations Act.  Among the more notable results were the invalidation of class waivers and mandatory arbitration agreements; the further diminution of the facility-wide presumption in organizing cases; and a number of decisions tilting the balance in collective-bargaining negotiations.  At the same time, the Acting General Counsel continued to pursue an expansive agenda -- issuing numerous new complaints and explanatory memoranda in social media cases.

The courts, however, dealt the Board a series of blows throughout the year, dismissing the Board's challenge to Arizona's secret ballot amendment; and invalidating the Board's rule-making on required notice-posting and "quickie elections".  But no court action carried as much import as the January 2013 Noel Canning decision by the Circuit Court of Appeals for D.C. which declared the President's "recess" appointments unconstitutional, and found that the Board lacked a quorum to act throughout 2012.

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 2012: A Year in Review." This brief summary highlights some of the most noteworthy developments in 2012. We hope you find it a helpful resource as we head into what is certain to be one of the most interesting years in labor law in some time.

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If you are responsible for labor or human relations at a unionized employer, your job just got tougher last month. In two decisions issued on back to back days in December, the National Labor Relations Board eliminated two long-standing, bright-line rules favorable to employers relating to their duty to bargain: 1) the ability to discipline represented employees without first bargaining with the union; and 2) the right to refuse to produce confidential witness statements to the union in response to information requests. As if elimination of those rules were not concerning enough for employers, the Board’s new law in these areas will create additional burdens for labor and human relations administrators in performing their day-to-day duties.  

On December 14, 2012, the Board in Alan Ritchey, Inc., 359 NLRB No. 40 (2013), reversed decade-old precedent and held that employers can no longer issue discretionary discipline unilaterally without bargaining with the union unless there is an agreement providing for a grievance procedure. Accordingly, where an employer’s disciplinary system is fixed as to broad standards, but discretionary as to what type of discipline will be imposed, the Board now requires that:

after the employer has decided (with or without an investigatory interview) to impose certain types of discipline, it must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to implement the decision. As explained below, at this stage, the employer need not bargain to agreement or impasse, if it does so afterward. In exigent circumstances, as defined, the employer may act immediately, provided that, promptly afterward, it provides the union with notice and an opportunity to bargain about the disciplinary decision and its effects. Finally, if the employer has properly implemented its disciplinary decision without first reaching agreement or impasse, the employer must bargain with the union to agreement or impasse after imposing discipline.

(See our previous post summarizing Alan Ritchey for more specifics regarding the bargaining obligations.)

As a result, unionized employers without an agreed upon grievance procedure must now determine to what extent they can exercise discretion in their disciplinary policies, and then bargain with the union regarding the exercise of that discretion whenever it seeks to discipline an employee. For example, presume that an employer has a no-fault attendance policy that proscribes certain discipline at various levels of attendance points, but the employer’s policies reserve the right for the employer to exercise discretion in the enforcement of its policies. If the employee has accumulated enough points to warrant a suspension under the attendance policy, the employer must now bargain with the union before suspending the employee, which will include responding to any information requests the union might serve seeking information regarding the consistency with which the employer has applied its policies and the level of discipline issued to other employees for similar infractions. Accordingly, this new bargaining obligation can delay the issuance of discipline and create significant additional work for labor and human resources administrators at a time when they are trying to direct their efforts towards negotiations for a new collective bargaining agreement.

Similarly, on December 15, 2012, the Board held in Piedmont Gardens, 359 NLRB No. 46 (2012), that the disclosure of witness statements in response to a union's request for information will now be governed by the balancing test articulated by the Supreme Court in Detroit Edison v. NLRB, 440 U.S. 301 (1979), that is used to determine when employers must produce confidential information to the union. Previously, the Board had a bright-line rule providing that employers had no duty to produce confidential witness statements produced during an investigation in response to a union's information request under Anheuser-Busch, 237 NLRB 982 (1978).

This decision is problematic for labor and human resources professionals, and thus their employers, for two reasons. First, the fact that employers might have to produce confidential witness statements to the union will likely discourage some employees from cooperating during investigations because they fear retribution by the union and/or their co-workers. Employers can no longer make assurances of confidentiality when asking an employee to submit a witness statement and thus cannot comply with the guidelines issued by the Equal Employment Opportunity Commission regarding confidentiality.

Second, labor/human resources administrators must now either become labor law professionals or frequently engage such professionals to determine, on a case by case basis, whether it must produce confidential witness statements in response to an information request. Even then, as Member Hayes highlights with a quote by former Board Member Brame, it will be difficult to chart the legally acceptable course: 

It would take the wisdom of Solomon and the time of the ages for the Board, on a case-by-case basis, to attempt to grade and classify all potential forms of employee misconduct and to determine how the gravity of the offense ranks in the majority’s subjective scale of various legitimate interests. Moreover, there is no correlation between the majority’s perceptions of the nature of the misconduct and the potential peril to an informer. When the informant gives up information that results in an employee’s dismissal, it does not matter if the discharge is because of workplace theft or drug use. The employee’s job is lost just the same and the resentment of fellow employees toward the informer is likely to be just as great.

An employee contemplating whether to provide confidential information should not be required to attempt to predict how the Board will apply its subjective balancing test . . . . Such a rule will have a chilling effect on informants and employees.

As such, it is clear that the jobs for some labor and human resources professionals just got a lot tougher as a result of both Alan Ritchey and Piedmont Gardens. It is not yet known whether either employer will file a petition for review challenging these decisions, but we will keep you posted on any developments in these cases as well as any other ALJ or Board decisions applying these new Board rules.

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Today Lafe Solomon, Acting General Counsel, National Labor Relations Board, released the annual "Summary of Operations" for Fiscal Year 2012. The report focuses mainly on the statistical accomplishments of the Board for FY 2012, and highlights that: 

• 93.9% of all initial representation elections were held within 56 days of the filing of the petition (up from 91.7% last year);
• Initial elections in union representation elections were conducted in a media of 38 days from the filing of the petition;
• 97% of the 37 10(j) petitions litigated in federal district court resulted in a satisfactory settlement or substantial victory;
• Regional offices settled 91% of the unfair labor practice charges that were deemed by the regional office to have merit (down from 93%);
• Regional offices won in whole or in part 90.1% of the unfair labor practice and compliance cases before administrative law judges (up from 87%); and
• $44,316,059 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines.

AGC Solomon also noted that the Agency exceed two out of three of its "overarching casehandling goals," closing:

• 84.5% of all representation cases within 100 days (target 85.2%),
• 72.7% of all unfair labor practice cases within 120 days (target 72.0%), and
• 83.8% of all meritorious unfair labor practice cases within 365 days (target 80.3%).

As he described 2011 in last year's report, AGC Solomon labeled 2012 as "another successful fiscal year enforcing the National Labor Relations Act," and "another year of excellent casehandling performance" in his introductory letter.

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The United States Court of Appeals for the District of Columbia Circuit vacated an order by the National Labor Relations Board finding that an employer unlawfully failed to bargain with a union when the union and the employer agreed that the parties were at impasse on union security and arbitration.

In Erie Brush & Manufacturing Corp. v. NLRB, Case. No. 11-1337 (D.C. Cir. Nov. 27, 2012), the employer and the union met on eight occasions in a 10-month period and reached agreement on all noneconomic issues except two: union security and arbitration of grievances.

The Union insisted on including union security and arbitration clauses in the contract. Erie was equally committed to an open shop and opposed to arbitration. During the meetings, Bridgemon [the union’s chief negotiator] repeatedly told Geslewitz [the employer’s chief negotiator] that the Union had no room to compromise on union security or arbitration, calling those issues “make or break on the whole contract” and saying that the Union “can’t work on these things” and “there wouldn’t be a contract without a union security clause.” Geslewitz was just as adamant, refusing to agree to a contract that contained union security or arbitration provisions.

Bridgemon, according to his own testimony, told Geslewitz that he felt the parties were at an impasse on union security and arbitration, and Geslewitz agreed.

…

Bridgemon suggested mediation, and Geslewitz said he would consult with Erie’s president on the prospect of mediation even though he saw no potential middle ground on those two issues.

….

Geslewitz wrote to Bridgemon that Erie would not agree to mediation because neither party was willing to compromise on union security or arbitration, rendering mediation futile.

More than a month later, the union responded and suggested that they negotiate economic issues and come back to the noneconomic issues. The employer asked whether the union’s positions on union security or arbitration had changed, “because otherwise further negotiations would be pointless.” After discussing it with the local union, the union’s chief negotiator advised the company that he had “some give on the arbitration issue” but not on union security, and declined to provide a proposal. The employer responded that it was still pointless to meet unless union security was on the table.

Over a month later, an employee delivered a petition to the employer stating that 18 of 21 employees did not want to be represented by the union. As a result, the employer withdrew recognition.

The union filed an unfair labor practice charge with the NRLB. The Board affirmed an administrative law judge’s decision finding that the employer unlawfully refused to bargain with the union and that the refusal to bargain tainted the employees’ decertification petition resulting in an unlawful withdrawal of recognition. Member Hayes, however, dissented, finding that because the parties were at a bona fide impasse on union security and arbitration, he would reverse the ALJ’s finding of unlawful refusal to bargain.

On petition for review, the court vacated the NLRB’s order concluding that the evidence “uniformly” supported the employer’s position that there was a bargaining impasse despite the fact that impasse existed on only two discrete issues:

Impasse on a single critical issue can create an impasse on the entire agreement. See CalMat Co., 331 NLRB 1084, 1097 (2000). A party asserting impasse based on a single issue must show that: first, a good-faith bargaining impasse actually existed; second, the single issue involved was critical; and third, “the impasse on this critical issue led to a breakdown in the overall negotiations.” Id. The Board does not dispute that Erie established the second CalMat factor: union security was a critical issue. See Board Decision at 2; Resp’t Br. at 26.

Reviewing the facts, the court concluded that the evidence overwhelmingly satisfied that three-part test:

The parties had negotiated over a period of ten months, and had agreed to discuss noneconomic issues before moving on to economic ones. At no point during the ten month negotiation did either party propose a compromise on union security or arbitration that was acceptable to the other party. The Board did not rely on any bad faith by the parties…and it did not question the importance of union security or arbitration. Both parties understood bargaining to be at an impasse on March 31: Bridgemon, the Union’s bargaining representative, explicitly stated that he viewed the negotiations as being at an impasse, and Geslewitz, the company’s representative, agreed.

The Board pointed to two pieces of evidence in its finding of no impasse. First, the Board took Bridgemon’s suggestion of mediation to mean that Bridgemon considered further bargaining on union security and arbitration potentially productive. But we have held that “a vague request by one party for additional meetings, if unaccompanied by an indication of the areas in which that party foresees future concessions, is . . . insufficient to defeat an impasse where the other party has clearly announced that its position is final.” TruServ, 254 F.3d at 1117. On March 31, Bridgemon offered no possibility of future concessions on union security or arbitration. In fact, quite to the contrary: Bridgemon explicitly stated that the parties were “at impasse” on union security and arbitration, told Geslewitz that he had no room to compromise on those issues, and suggested an arbitration proposal that Erie had already repeatedly rejected.

The also court noted that the Board cannot rely on a party’s “post-impasse conduct” to find no impasse, and that a negotiating agent’s bare promise to continue discussing with his principal the topics of negotiations does not imply any moderation in the party’s position.

Moreover, the court found that both parties considered union security “make or break” on the entire contract, thus it was a critical issue that “pervaded the negotiations” resulting in overall impasse. Meanwhile, the court expressly rejected the Board’s “intuitive believe that, upon further bargaining, each side would have made additional concessions”:

Such rank speculation cannot form the basis of a sound administrative finding, for we have emphasized that “each party, not the Board determines at what point it ceases to be willing to compromise.” … “You never know” is no substitute for substantial evidence.

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• Wal-Mart's Black Friday merchandising page
• "Wal-Mart Shrugs Off Threat of Black Friday Unrest" -- NBC Today
• "Viewpoint: Stakes are High for Striking Wal-Mart Workers" -- Sacramento Bee
• The UFCW is distributing this YouTube clip today via its Twitter feed.
• "CNN's Costello Pushes Walmart VP on Labor Practices" -- The Raw Story

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On October 31, 2012, the Acting General Counsel of the National Labor Relations Board issued two advice memos recommending the dismissal of unfair labor practice charges alleging the employers’ at-will disclaimers in their employee handbooks violated the National Labor Relations Act. In the first advice memo issued yesterday, (Rocha Transportation, NLRB Case No. 32-CA-086799 (G.C. Div. of Advice Memo., October 31, 2012)), the employer maintained an at-will policy in its Driver Handbook stating that:

Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

Similarly, the employer in the second advice memo (SWH Corporation, NLRB Case No. 28-CA-084365 (G.C. Div. of Advice Memo., October 31, 2012)), maintained the following at-will policy statement in its employee handbook: 

The relationship between you and Mimi’s Café is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with our without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

In both cases it was alleged that the at-will policies were overbroad and would reasonably chill employees in the exercise of their rights under the Act.

The acting general counsel concluded in both cases that the employers' employment at-will provisions "would not reasonably be interpreted to restrict an employee's Section 7 right to engage in concerted attempts to change his or her employment at-will status" since:

[t]he provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. Instead, the provision simply prohibits the [Employers’] own representatives from entering into employment agreements that provide for other than at-will employment.

In finding both provisions lawful, the Acting General Counsel distinguished American Red Cross Arizona Blood Services Region, NLRB Case No. 28-CA-23443 (Feb. 1, 2012), in which an administrative law judge found an employer’s at-will policy unlawful. In that case, employees were required to sign a form acknowledging their at-will employment status:

I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

According to the Division of Advice, American Red Cross “more clearly involved an employee’s waiver of his Section 7 rights than the handbook provisions here” because the employees, by signing the acknowledgement, had to agree that their at-will employment could not be changed in any way, and was thus a waiver of the employee’s right “to advocate concertedly…to change his/her at-will status.”

Given that employers have long utilized employment at-will provisions in employee handbooks as a defense to potential claims by employees that the provisions in the handbook create an employment contract, these advice memorandum provide much-needed guidance for employers regarding at-will disclaimers given the NLRB’s ruling in American Red Cross earlier this year. However, the Acting General Counsel noted that the law in this area remains unsettled, and has thus requested that the Regions submit all cases involving employee handbook provisions restricting modification of an employee’s at-will status to the Division of Advice.

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Last week the Sixth Circuit issued its decision in Montague v. NLRB, Case No. 11-1256 (6th Cir. Aug. 23, 2012), upholding the National Labor Relations Board's decision in Dana Corporation, 356 NLRB No. 49 (2010), finding that a pre-recognition framework agreement between Dana Corporation and the United Auto Workers did not violate the National Labor Relations Act. The specific issue before the court was:

whether--before employees officially recognize a union--a union and an employer may enter into a letter of agreement setting forth general terms, including provisions related to health care benefits and future collective-bargaining agreements, that are subject to further negotiation but may become binding if arbitration is necessary.

Background

The Letter of Agreement (LOA) entered into between Dana and the UAW included various provisions intended to manage the relationship between the parties if the majority of employees at a certain facility selected the UAW as their exclusive collective-bargaining representative. Specifically, Dana agreed to be neutral in the event of an organizing campaign, allow employees to meet on company property, provide the union access to employees during the workday, and provide the UAW with personal information about the employees targeted for unionization. In exchange, the union agreed to certain principles that were to be included in future collective bargaining agreements between the parties. For example, the LOA specified that any collective bargaining agreement must include healthcare costs reflective of the competitive reality of the supplier industry and products involved, minimum classifications, team-based approaches, importance of attendance to productivity and quality, flexible compensation, mandatory overtime when necessary, and other provisions.

The LOA further provided that if the parties did not reach agreement on any of the terms within six months, they would submit the unresolved issues to arbitration. The parties also agreed to a no strike/no lockout commitment until at least the first formal collective bargaining agreement.

Ultimately, the employees at the targeted facility rejected the UAW, and the LOA expired.

 The NLRB's Decision

The NLRB found 2-1 that the LOA did not grant recognition to a minority union or present a tentative contract with a union that had not yet achieved majority status--either of which would have been unlawful under well-established precedent. Rather, the Board stated that it permissible for the employer and the union to create a framework for future collective bargaining if the union is able to provide proof of majority status. As noted by the court,

The Board found support for its conclusion in the policy underlying the NLRA. "The ultimate object of the National Labor Relations Act, as the Supreme Court has repeatedly stated, is 'industrial peace.'" [...] The Board expressed its reluctance to put "new obstacles" in the way of voluntary recognition of a union (e.g., recognition of a union's majority status by authorization cards rather than by election), and further noted that "in practice, an employer's willingness to voluntarily recognize a union may turn on the employer's ability to predict the consequences of doing so."

Rejecting a categorical rule against pre-recognition framework agreements, the Board went on to conclude that the LOA, itself, was lawful under the NLRA because the LOA had no immediate effect on employees' terms and conditions of employment, and even its potential future effect was both limited and contingent on substantial future negotiations.

However, one Board member dissented, arguing that the LOA included "substantive contract provisions" and that there were "no meaningful factual or legal distinctions" between the LOA and an agreement found unlawful in an earlier Board decision. The dissent also rejected the majority's policy rationale,

arguing that even if employers and unions benefited from negotiations, "the legality of negotiating such terms must turn on the statutory rights of employees, not on the commercial interests of unions and employers."

 The Sixth Circuit's Ruling

Two individual employees petitioned for review of the NLRB's decision with the Sixth Circuit, which upheld the Board's decision while making clear that it did not find one position--i.e., the majority's or the minority's--more persuasive than the other:

The thoughtful majority and dissenting opinions of the Board members in this case show that reasonable minds could differ as to how the NLRA should be interpreted to further the underlying purposes of the NLRA in the context of employer negotiations with unions that do not have majority status. We must deny the petition for review, not because we find one position more persuasive than the other, but because Congress has given the Board the power to make industrial policy as long as it is doing so within the confines of the statutory language. [...] The Board "need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one." [...] Indeed the balancing of "conflicting legitimate interests" in pursuit of "the national policy of promoting labor peace through strengthened collective bargaining" is "precisely the kind of judgment that...should be left to the Board."

The court held that the Board's two findings--i.e., 1) that the LOA provides that the employer would not recognize the union prior to the union receiving a majority vote of the employees and 2) that the LOA was not a full collective-bargaining agreement but rather required substantial negotiations post-recognition--to be reasonable.

As the entity entrusted with maintaining "industrial peace," however, the Board was within its discretion to allow some substantive terms to be determined between the employer and union prior to recognition, as long as that agreement did not ultimately impact employees' choice regarding union representation.

We are not suggesting that there was any hesitation by the Sixth Circuit to deny the petition for review, but if there was, the court's opinion suggests that the fact that the employees ultimately rejected the UAW despite the LOA might have tipped the scales in favor of upholding the NLRB's decision:

Again, if employees felt hindered by this provision, they could reject any union that would make this concession on their behalf--and they ultimately did by not selecting UAW as their exclusive bargaining representative.

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A federal court in South Carolina today ruled that the National Labor Relations Board lacked authority to issue the notice-posting rule. Under the NLRB's notice-posting rule, all private-sector employers subject to the National Labor Relations Act must post a notice to employees informing them of their rights under the Act. Employers had until April 30, 2012 to comply with the Rule.

In Chamber of Commerce of the United States v. NLRB, Case No. 2:11-cv-02516-DCN (D.S.C.), District Court Judge David C. Norton relied upon the plain language and structure of the Act to invalidate the Rule.

Critical to Judge Norton's order was the fact that the Act as well as the NLRB's own materials and statements clearly demonstrate that the NLRB functions as a reactive agency:

Congress intended the NLRB to be a quasi-judicial body that “has two main functions: to conduct representation elections and certify the results, and to prevent employers and unions from engaging in unfair labor practices.” ... “In both kinds of cases the processes of the NLRB are begun only when requested.” ... The Acting General Counsel, Lafe Solomon, has explained that the “NLRB’s processes can be invoked only by the filing of an unfair labor practice charge or a representation petition by a member of the public. The agency has no authority to initiate proceedings on its own.”

With this understanding, Judge Norton examined the propriety of the notice-posting rule under Section 6 of the Act, which sets forth the NLRB's rule-making authority. Specifically, Section 6 states:

The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.

The court found that the NLRB lacks authority under both the plain language of Section 6 and the structure of the Act to issue the Rule because it was not "'necessary' to carry out other sections of the Act."

First, the plain language of Section 6 requires that rules promulgated by the Board be “necessary to carry out” other provisions of the Act. Defendants argue that the rule is “necessary to carry out” Sections 1 and 7 of the Act, but confuse a “necessary” rule with one that is simply useful. It can be said that the notice-posting rule “aids” or “furthers” the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is “necessary” to carry out any other provision of the Act.

Moreover, Judge Norton noted that given the NLRB's "reactive role in relation to employers covered under the Act," "[f]inding the challenged rule is 'necessary' to carry out other provisions of the Act would require the court to ignore 'the statutory language as a whole,' ... and allow the Board to create rules in any area in which Congress did not specifically withhold the Board's power."

With respect to the structure of the Act, Judge Norton noted:

Congress authorized the Board to regulate employers’ conduct in two essential areas: preventing and resolving ULP charges and conducting representation elections. It is clear from the structure of the Act that Congress intended the Board’s authority over employers to be triggered by an outside party’s filing of a representation petition or ULP charge.

It is in this context that the Board's Section 6 authority is elucidated.

...

Here, the notice-posting rule does not serve to “carry out” any existing duties under the Act, but instead places an affirmative obligation on employers prior to a charge or petition first being filed. Congress did not impose a notice-posting requirement on employers in the Act or commit this area of regulation to the Board. “Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked.” NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 499 (1960).

Defendants have not shown that Congress delegated authority to the Board through Section 6 to regulate employers in this manner.

The court also rejected the NLRB's argument that the Act's silence regarding a notice-posting allowed it to fill a statutory "gap" left by Congress. In addition to the statutory scheme, Judge Norton found that the legislative history of the Act supports a finding that Congress did not intend to impose an universal notice-posting requirement on employers, nor did it authorize the Board to do so. Indeed,

Congress has inserted at least eight additional notice requirements in federal labor laws since 1934, while the NLRA remained silent. ... Congress clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires.

Accordingly, the court found that the NLRB "stretch[ed] the basic meaning of a 'gap' in a statute."

Judge Norton's order contradicts, in part, District Court Judge Amy Berman's ruling in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), upholding the requirement for employers to post the notice. The plaintiffs in National Association of Manufacturers filed an appeal, and the NLRB will certainly appeal Judge Norton's order. Accordingly, we recommend that employers continue to monitor both cases and the NLRB's website closely as it may elect to postpone enforcement of the Rule pending further developments in these cases.

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On Monday the National Labor Relations Board filed its response to the plaintiffs/appellants' Emergency Motion for Injunction Pending Appeal and/or for Expedited Consideration with the Court of Appeals for the District of Columbia in National Association of Manufacturers v. NLRB, Case No. 12-5068 (D.C. Cir.). The National Federation of Independent Business (NFIB), the National Association of Manufacturers (NAM), and National Right to Work Legal Defense and Education Foundation filed the emergency motion asking the appellate court to enjoin the National Labor Relations Board from enforcing its notice-posting rule. Under that rule, all private-sector employers subject to the National Labor Relations Act must post a notice to employees informing them of their rights under the Act. Presently, employers must comply with the rule by April 30, 2012.

In its response, the NLRB asserts that the appellants' motion should be denied because they have not demonstrated a strong likelihood of success on the merits. Specifically, the NLRB asserts that the rule was a reasonable exercise of its authority, the notice poster is balanced as it explains employees’ right to engage in union activity and their right to refrain from supporting unions, and the Board's rule was supported by the administrative record of "studies, law review articles, and comments." The NLRB also asserts that the appellants will suffer no irreparable harm if the rule is not enjoined.

However, the NLRB contends that delaying the notice posting rule further will harm other parties because "the Board has concluded that there exists a widespread deficit in awareness of NLRA rights." The NLRB argues that "[w]hile it is undeniably true that the Act has existed for 75 years without such a rule":

appellants give short shrift to the employees of those employers who are unaware of their rights under the NLRA and who for too long have been uniquely disadvantaged by the absence of any requirement that these rights be brought to their attention through the reasonable, customary means of a workplace poster.

Because employers must comply with the NLRB's notice posting rule by April 30, employers should continue to monitor this case as well as the U.S. Chamber of Commerce's lawsuit against the NLRB, Chamber of Commerce of the United States v. NLRB, Case No. 2:11-cv-02516-DCN (D.S.C.), which also challenges the NLRB's notice posting rule and remains pending in federal court in South Carolina. Both the Chamber and the NLRB have filed motions for summary judgment and are awaiting a ruling.

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Yesterday, the United States Supreme Court declined to hear the employer's challenge in HTH Corp. v. Frankl, Case No. 11-622 (cert. denied March 26, 2012), to the National Labor Relations Board’s authority to delegate to its general counsel the power to file Section 10(j) injunction petitions in federal court once the Board lost a quorum of members.

The case stems from a petition filed by the Regional Director for Region 20 of the NLRB seeking an injunction under Section 10(j) of the National Labor Relations Act when the Board had only two members. In accordance with the Board’s 2007 delegation of litigation authority to its general counsel, the Section 10(j) petition was approved only by the NLRB’s General Counsel, not by the members of the Board. The employer opposed the petition on its merits but also moved to dismiss the complaint for lack of subject-matter jurisdiction asserting that the Regional Director’s failure to obtain the Board’s approval to file the petition deprived the district court of jurisdiction.

The circumstances surrounding the 2007 delegation of litigation authority to the General Counsel were the same as those addressed in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), in which the Supreme Court held that the Board could not delegate its powers to a three-member group with one vacancy, and thus had no authority to issue any decisions with less than three Board members. However, the Supreme Court in New Process Steel expressly declined to discuss the legality of the Board’s assignment of litigation authority to the General Counsel:

Our conclusion that the delegee group ceases to exist once there are no longer three Board members to constitute the group does not cast doubt on the prior delegations of authority to nongroup members, such as the regional directors or the general counsel. The latter implicates a separate question that our decision does not address.

In HTH Corp, the Ninth Circuit held that case-by-case pre-filing approval by the Board of Section 10(j) petitions is not mandated by the Act. Moreover, the court held that the Board’s 2007 delegation did not end when it had only two members:

New Process Steel instructs that the Act’s quorum requirement must be satisfied when the Board is acting directly through its members, but does not need to be satisfied for the Board’s earlier exercises and assignments of its authority, made with a proper quorum, to remain valid and in effect.

 

Given that distinction, the Board-member quorum requirement in § 3(b) of the Act has only limited pertinence with regard to § 10(j). As we developed earlier, § 10(j) assigns the Board a “power” but does not mandate the case-by-case involvement of the Board as a multi-member organization in exercising that power. Thus, with respect to the Board’s power to file petitions under § 10(j), it was sufficient that a quorum of the Board in 2007 decided to assign decisions as to individual petitions to the General Counsel.

The Ninth Circuit’s decision was consistent with decisions from the Fourth, Fifth, and Eight Circuits.

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Back on March 1, the National Association of Manufacturers asked "Where is the NLRB General Counsel Report [for FY 2011]?"  On its Shopfloor blog, NAM noted:

...Over the last ten years, the latest the report has been released was February 4th. Fiscal year 2012 began on October 1, 2011 and is nearly at its half-way point. Yet, the NLRB General Counsel has not let us know how the Board performed the year before.

Late last week, the Board answered, releasing  its annual "Summary of Activities" for fiscal year 2011.  The report focuses mainly on the statistical accomplishments of the Board for FY 2011.  As summarized by the report's introduction, elements of the report include that:

• 91.7% of all initial representation elections were held within 56 days of the filing of the petition;
• Regional offices settled 93% of the unfair labor practice charges that were deemed by the regional office to have merit
• Regional offices won in whole or in part 87% of the unfair labor practice and compliance cases before administrative law judges
• The NLRA’s case intake dropped by 5.9% overall from FY 2010, which represents a decrease of 5.1% in unfair labor practice charges and a decrease of 12.2% in representation cases.
• Case inventory rose from 4,063 cases in FY 2010 to 4,421 cases in FY 2011, an increase of 8.8%.

In his introductory note to Board staff, the Acting GC described 2011 as "another successful fiscal year enforcing the National Labor Relations Act," and "another year of excellent casehandling performance." 

For more perspective on the specific elements of the Board's 2011 performance, please review our annual report "Labor Law 2011: A Year in Review."

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Yesterday, the District Court for the District of Columbia denied the plaintiffs' request in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), for an injunction preventing the National Labor Relations Board from enforcing its notice posting rule pending their appeal of the court's ruling partially upholding the Rule.

In support of their motion, the National Federation of Independent Business (NFIB) and the National Association of Manufacturers (NAM) argued that employers would be irreparably harmed absent an injunction because they will be forced to choose between surrendering their First Amendment rights by posting the notice or facing penalties imposed by the Board if they choose not to post. In her order Judge Amy Berman Jackson rejected that claim because:

this Court's opinion struck down the part of the Rule that would have made failure to post an unfair labor practice. Instead, the Court made clear that the Board may only sanction employers for failure to post if it finds that the employer's action in a particular case "interferes with, restrains or coerces employees" in the exercise of their guaranteed rights. ... Furthermore, the Board's power to fashion sanctions is purely remedial, so employers who fail to post will not be subject to harsh punitive penalties.

The court also concluded that employers who comply with the Rule will not suffer irreparable harm:

If the Court of Appeals ultimately determines that the Board exceeded its authority in promulgating the Rule, the employer can take the notice down. And since the notice simply notifies employees of the rights that they are already guaranteed by law, any increased employee awareness that may result cannot be deemed "irreparable harm."

The court rejected the plaintiffs' argument for an injunction based on the First Amendment finding that it is their "weakest" argument and that they are unlikely to succeed on the merits of any appeal based on the First Amendment.

In conclusion, Judge Jackson noted that "[t]he Board has already delayed implementation of the Rule twice while the Court took the time to consider the matter closely, and the Court sees no reason why it should be delayed further."

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On Monday, March 5, the Coalition for a Democratic Workplace, the National Federation of Independent Business (NFIB) and the National Association of Manufacturers (NAM) filed a notice of appeal with the Court of Appeals for the District of Columbia challenging the district court's ruling upholding, in part, the National Labor Relations Board's notice posting rule.

In the order issued on Friday, March 2 in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), District Court Judge Amy Berman Jackson held both the NLRB had authority to issue a rule requiring private-sector employers to post notices informing employees of their rights under the Act, and that the NLRB could consider an employer's "knowing and willful" failure to post the notice as evidence of an unlawful motive. However, she struck down the portions of the NLRB's rule that would automatically deem an employer's failure to post the notice an unfair labor practice and that would toll the statute of limitations for unfair labor practice charges filed against employers that failed to post the notice.

That same day, Judge Jackson issued a separate decision in the case declining to entertain the plaintiffs' separate motions related to President Obama's more recent "recess appointments" to the Board. Judge Jackson declined to rule substantively on the motion deeming the alleged recess appointments a "political dispute" not at issue in the litigation.

The groups appealing Judge Jackson's rulings stated that they are appealing the March 2 orders on the basis that the NLRB does not have rulemaking authority, their First Amendment claims, and their challenge to the alleged recess appointments.

Because employers must comply with the NLRB's notice posting rule by April 30, the plaintiffs in the case also filed a request with the district court seeking an injunction prohibiting the NLRB from enforcing the rule while the plaintiffs' appeal is pending.

Meanwhile, the U.S. Chamber of Commerce's lawsuit against the NLRB, Chamber of Commerce of the United States v. NLRB, Case No. 2:11-cv-02516-DCN (D.S.C.), also challenging the NLRB's notice posting rule remains pending in federal court in South Carolina. Both the Chamber and the NLRB have filed motions for summary judgment and are awaiting a ruling.

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Today the U.S. District Court for the District of Columbia issued its opinion addressing the validity of the National Labor Relations Board's new 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. In ruling on the parties' cross motions for summary judgment, the court held that the NLRB:

• properly issued a rule requiring private-sector employers to post notices informing employees of their rights under the Act;
• cannot issue a rule automatically deeming an employer's failure to post the notice an unfair labor practice in violation of Section 8(a)(1) of the Act;
• cannot equitably toll the statute of limitations in unfair labor practice actions against employers who have failed to post; and
• can consider an employer's "knowing and willful" failure to post the notice as evidence of unlawful motive.

The last point is significant because it provides the NLRB with a powerful tool to find a violation in cases where the alleged unfair labor practice requires an unlawful motive. 

In analyzing the the validity of the NLRB's rule, the court examined its two sub parts separately. Subpart A requires all employers subject to the NLRA to "post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures." In upholding Subpart A, the court noted that Section 156 of the NLRA "expressly grants the Board the broad rulemaking authority to make rules necessary to carry out any of the provisions of the Act."

Therefore, the Court cannot find that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act. Neither the text of the statute nor any binding precedent supports plaintiffs' narrow reading of a broad, express grant of rulemaking authority.

Subpart B lays out the method by which the NLRB will enforce the notice posting provisions of the rule. Subpart B provides that an employer's failure to post the employee notice "may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the Act] in violation of NLRA Section 8(a)(1)...." Subpart B also provides that the Board may find it appropriate to toll the statutory six month statute of limitations for an employee who files an unfair labor practice charge if the employer has failed to post the notice, and that the Board may consider an employer's "knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue."

The plaintiffs argued, and the court agreed, that the NLRB lacked the authority to deem a failure to post to be an unfair labor practice under the Act. The NLRB claimed that an employer's failure to post the notice qualifies as an unfair labor practice charge under Section 8(a)(1), asserting that because "notice posting is necessary to ensure effective exercise of Section 7 rights, a refusal to post the required notice is at least an interference with employees' exercise of those rights." The court disagreed:

section 158(a)(1) prohibits employers from getting in the way - from doing something that impeded or hampers an employee's exercise of the rights guaranteed by section 157 of the statute. It does not prohibit a mere failure to facilitate the exercise of those rights. Yet, section 104.210 does not distinguish between a situation where an employer's failure to post was intended to or did exert influence over an employee's organizational efforts, and where the employer merely declined or failed to post the information publicizing those rights. It allows the Board to deem the failure to post to be an unfair labor practice in every situation.

Notably, however, the court stated that nothing in its decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it.

But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee's exercise of his or her rights.

The court rejected the rule's equitable tolling provision because "Congress did not leave a gap for the agency to fill with respect to the statute of limitations."

Finally, the court did uphold the portion of Subpart B providing that the Board may consider failure to post as evidence of an employer's unlawful motive because the NLRB had authority to issue the rule and the rule "does not make a blanket finding that will govern future individual adjudications or create a presumption of anti-union animus wherever an employer fails to post the provision.

It is unknown at this time if either side will appeal the court's ruling, so employers should continue to follow developments regarding the rule. Currently,  private sector employers are required to post the required notice in the workplace by April 30, 2012. We will update the blog once any new information becomes available.

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The Georgia State Senate Insurance and Labor Committee voted unanimously in favor of a bill that would prohibit mass and targeted picketing of private residences and require employers to post notices informing employees of their right to work without joining a labor union.

Picketing of Residences

Georgia Senate Bill 469 proposes to amend the Georgia code section relating to labor organizations and labor relations, which already prohibits mass picketing "at any place." The amendments would clarify that the prohibition on mass picketing includes private residences, and would prohibit any individual or organization from picketing a private residence:

that has or intends the effect of interfering with the resident's right to quiet enjoyment, or when such targeted picketing has or intends the effect of violence or intimidation.

The proposed prohibition comes on the heels of last year's well-publicized picketing by the Communications Workers of America of the residence of Verizon CEO Lowell McAdam (slide show here), as well as the Occupy movement's picketing outside the residences of General Electric's and Wells Fargo's CEOs. Fourteen Fortune 500 companies are headquartered in Georgia, and 32 Fortune 1000 businesses make Georgia their home base. Moreover, Atlanta is second only to New York and Houston in the number of Fortune 500 headquarters.

The bill would not apply to private residences that are also places of employment "when targeted picketing relates to or is targeted at such employment."

Notice of "Right to Work" Rights

In addition, perhaps inspired by the National Labor Relations Board's impending notice-posting rule, Senate Bill 469 also seeks to require private employers to:

post adequate notice informing employees of the rights under this Code section [i.e., the right to work without having to join a union or pay union dues and the right to decertify a union] at locations where notices are normally posted or, if no such normal location for posting exists, physically disseminate such notice to employees. A private employer may also, at its discretion, post such notices on the company's intranet or disseminate them via other electronic means of communication.

Finally, Senate Bill 469 would not allow employers to deduct union dues from an employee's wages unless the employee provides annual written authorization.

Potential Challenges

If Senate Bill 469 is ultimately enacted, it is likely to be challenged on constitutional and preemption grounds. However, it appears that the prohibition on targeted picketing of residences is likely to survive any constitutional challenge based on the First Amendment. The Supreme Court has held that municipalities can prohibit targeted picketing of residences without violating the First Amendment because "[e]ven protected speech is not equally permissible in all places and at all times." Frisby v. Schultz, 487 U.S. 474, 479 (1988). While opponents of the bill might claim that it is preempted by the National Labor Relations Act, the validity of that claim is questionable as it is well established that states can enact "right to work" laws, so it is doubtful that an ordinance requiring employers to notify employees of their "right to work" under state law is preempted by the Act.

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The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace last week filed a motion seeking summary judgment in their lawsuit against the National Labor Relations Board (NLRB) challenging the Board’s December 22, 2011 rule intended to expedite the union representation election process. The Chamber's lawsuit, filed in December and recently amended, argues that:

...the blatantly partisan purpose of this rule is to ensure that employers have no time to talk to their workers about unionizing, and that the only information workers will get will come from the union. According to the Chamber’s complaint, the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and free speech and due process constitutional rights.

The Chamber's February 3, 2012 motion, seeking summary judgment invalidating the rule, argues that the Board's rulemaking process was flawed in that:

• two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
• the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
• the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

On the same day, the Board also filed for summary judgment dismissing the suit. The Board's brief argues that the Chamber's suit is not ripe for adjudication; the agency is entitled to deference in rulemaking; the rule is consistent with all substantive provisions of the Act; and the Board "fully considered and appropriately rejected" all the Chamber's substantive arguments against the rule in the course of its rulemaking process -- which process was not "totally unjustified".

Employers must follow closely this litigation, and the other developments currently unfolding, as the implementation of this rule will change significantly the way representation proceedings are processed and the timeframe within which they will have to respond to them. We will post additional information here on the case and the broader issue as it becomes available.

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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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Days after oral argument was heard in the National Association of Manufacturers (NAM) suit to enjoin the rule, the National Labor Relations Board has agreed to postpone the effective date of its new rule requiring all employers to post notices advising employees of rights under the NLRA.  

The Board announced today that it has determined that:

postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  

The rule's effective date was previously postponed from November 14, 2011 to January 31, 2012.  Since that time, additional groups have filed suit seeking to invalidate the rule. 

More resources and commentary:

• "NLRB Final Rule Requires All Employers to Post Notice of NLRA Rights in the Workplace" -- Labor Relations Today (Aug. 25, 2011)
• "Move Along, Nothing to See Here" -- ShopFloor.org (NAM)
• "Union Election Rule Will Take Effect April 30, Labor Board Says" -- Bloomberg
• Related posts at the Connecticut Employment Law Blog and the Ohio Employer's Law Blog

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Earlier this month, Patrice Kunesh the Department of Interior's Deputy Solicitor for Indian Affairs sent a letter to National Labor Relations Board Acting General Counsel Lafe Solomon, urging the Board to exempt Indian tribes from coverage by the National Labor Relations Act.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed. 

Deputy Solicitor Kunesh writes:

…I seek an opportunity to advance the Department’s position on the applicability of the NLRA to Indian tribes, articulated by the Tenth Circuit Court of Appeals, that Indian nations acting within their jurisdictions are exempt from the NLRA. See Dobbs v. Anthem Blue Cross and Blue Shield, 600 F.3d 1275, 1284-84 (10^th Cir. 2010); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10^th Cir. 2002). As stated by the Tenth Circuit: “[R]espect for Indian sovereignty means that federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization. Dobbs, 600 F.3d at 1283.

Rather than advancing this position in a litigation context, I believe that there may be an opportunity to work together to address whether Congress intended the NLRA to apply to tribal government employers. It is undoubtedly within the NLRB’s power to consider whether its original interpretation of the government employer exemption, 29 U.S.C. §152(2), as implicitly exempting tribal governments acting within their territorial jurisdictions, correctly interpreted congressional intent, as Member Schaumber argued in his dissent in San Manuel.

This reaffirmation of Interior's view, and a request to resolve the issue with its fellow Executive agency outside of a "litigation context," comes as Rep. Kristi Noem's (R-SD) bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335), sits in Committee.  Rep. Noem's bill, which has eighteen co-sponsors including Rep. Dan Boren (D-OK), would  clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty.  Over the summer, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe.

It would certainly seem that a larger consensus is gathering among administrative agencies, federal courts and at least some lawmakers with which the Board's current interpretation (San Manuel) is at odds.

More commentary and resources:

• "Update in Saginaw Chippewa Case Against NLRB" -- Turtle Talk
• "Interior Argues NLRB Not Applicable to Indian tribes" -- Workplace Prof Blog
• H/T: @DanielSchwartz

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Last week, another National Labor Relations Board ALJ ruled in part for, and in part against, a Chicago area car dealership on a Board Complaint arising out of the employer's response to an employee's Facebook posts.  In Knauz BMW, 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 conduct for which he was fired did not constitute protected activity.

The employer's handbook policies included rules (a) prohibiting "Bad Attitude," (b) mandating "Courtesy," (c) prohibiting "Unauthorized Interviews", and (d) prohibiting employees from answering any "Outside Inquiries Concerning Employees."  The ALJ described them thus:

The allegedly unlawful provision of paragraphs (a) and (b) state: “A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraphs (c) and (d) prohibit employees from participating in interviews with, or answering inquiries concerning employees from practically anybody. 

The ALJ applied the standards set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). questioning primarily whether "employees would reasonably construe the language to prohibit Section 7 activity."  He concluded that (b), (c) and (d) all violated the Act as they "clearly would be understood to restrict and limit employees in the
exercise of their Section 7 rights."

The Charging Party in the case had posted a number of photos and comments on his Facebook account involving the BMW dealership and a sister Land Rover dealership.  He had posted a series of sarcastic and critical posts about the perceived inferior food served at a sales event at his dealership.  Around the same time, he posted photos he had taken of a vehicle accident arising out of a test drive at the sister dealership with similarly snide commentary.  At least fifteen or sixteen of his co-workers were Facebook friends with access to these posts and many responded to them.

The ALJ held that the commentary -- rife with mockery -- about the food at the sales event was protected, as the success or failure of such an event might have a direct impact on employees' sales commissions.  He also concluded, however, that the Charging Party was not terminated because of these posts, but rather because of the posts regarding the Land Rover accident.  That behavior, he decided, was not protected: 

It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

Concluding that he was terminated solely for that incident, the ALJ held that the terminated did not violate the Act.

This is the second ALJ decision on a Complaint arising out of employer response to employee social media use.  Earlier this month, in Hispanics United of Buffalo, a judge ruled that a non-profit violated the Act by terminating employees for their Facebook posts regarding a co-worker's complaints.

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Earlier this month, the National Association of Manufacturers filed suit against the National Labor Relations Board seeking to enjoin the Board's August 30, 2011 Final Rule requiring private-sector employers to post a notice to employees informing them of their statutory rights to pursue union representation.   

Late last week, the National Federation of Independent Businesses filed a similar suit against the Board:

According to NFIB’s lawsuit, the NLRB’s promulgation of the new rule is a gross overreach of its statutory authority under the National Labor Relations Act (NLRA). Moreover, the rule, which takes effect on November 14, 2011, will impact employers with no history of NLRA violations. According to NFIB’s estimates, the rule will impact up to six million private-sector businesses around the country.

The lawsuit asks the court to set aside the rule and declare that the NLRB’s action violates the NLRA.

Finally, this past Monday, the U.S. Chamber of Commerce, joined by the South Carolina Chamber of Commerce, also sued the Board in federal district court in South Carolina.  The Chamber's suit  argues:

• The NLRB lacks the statutory authority for to require employers to post the notice, to create a new unfair labor practice, or to further toll the statute of limitations;
• The NLRB acted arbitrarily and capriciously in drafting the notice—in particular, by refusing to refer to state right to work and other important rights;
• The NLRB violated the Regulatory Flexibility Act by refusing to conduct the required initial and final regulatory flexibility analyses and not stating a sufficient factual basis for failing to do so; and
• The NLRB ‘s new mandate violates the First Amendment to the U.S. Constitution by compelling an employer to espouse ideological views with which it may disagree

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The House of Representatives today passed The Protecting Jobs From Government Interference Act (H.R. 2587) which would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The bill, introduced by Rep. Tim Scott (R-SC), on July 19, 2011 passed the House by a vote of 238-186.

The bill is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co. with respect to the opening of its new South Carolina facility.  By its terms, if it passes, the Act would apply to "any complaint for which a final adjudication has not been made by the date of enactment."  Rep. Scott was quoted in the Examiner:

“Today’s vote is important for our entire nation, as well as for my home district in South Carolina, where the NLRB is currently pursuing an agenda which, if successful, would kill thousands of jobs.... By removing the NLRB’s ability to dictate where private industry creates jobs, we are preventing an unelected, presidentially appointed government board from pitting state against state, inserting themselves into the business decisions of private companies, and scaring away investment in our nation.”

The bill passed largely along party lines -- as it did previously in Committee -- so it is little shock that House Democrats were quick to denounce the bill in strenuous terms.  The Education and the Workforce Committee Democrats posted on their website YouTube clips of Reps. George Miller (D-CA) and Robert Andrews (D-NJ) speaking critically of the bill on the House floor.

A related bill (S. 1523), introduced by Sen. Lindsey Graham (R-SC) is pending in the Senate.  

The Boeing case is currently proceeding before an NLRB administrative law judge in Seattle.

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On August 30, 2011,the National Labor Relations Board published 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. By its terms, the Rule was to become effective November 14, 2011.  The National Association of Manufacturers (NAM), however, last Thursday filed suit in the District Court for the District of Columbia, seeking to enjoin the Rule, alleging that it is "in excess of the Board's statutory jurisdiction, authority, limitations and rights."

The introduction to the Complaint tracks the language of Section 706(2)(C) of the Administrative Procedures Act, 5 U.S.C.§§ 701 et seq., which allows a reviewing court to set aside agency actions found to be so.  The Complaint highlights the Final Rule's identification of authority as Section 6 of the NLRA, which provides:

The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act.

NAM's pleadings argue that the Board's Final Rule exceeds this authority in at least four (4) specific ways:

1. In that neither Section 6 nor any other sections of the Act expressly grant the Board the authority to require the posting;

    

2. in that neither Section 6 nor any other sections of the Act grant the Board the authority to assert jurisdiction over, or require anything of, any employer absent the filing of a representation petition or unfair labor practice charge;

    

3. in that the Final Rule purports to create a new unfair labor practice -- while unfair labor practices are otherwise expressly enumerated and described in the statute; and

    

4. in that the Final Rule purports to extend the express six-month statute of limitations for filing charges in a manner inconsistent with the express exceptions set forth in the statute.

NAM's suit requests that the District Court enter judgment against the Board declaring that it exceeded its authority by promulgation of the Final Rule.  Additional relief requested includes preliminary and permanent injunctions against implementation and enforcement of the Rule. 

Employers should follow developments in this case, as absent an injunction, most private sector employers would be required to postthe required Notice in the workplace as of November 14, 2011.  No further action has been scheduled by the Court as of this moment, but we will update the blog accordingly as additional information becomes available.

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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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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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Just over a week after the National Labor Relations Board held two days of hearings on its proposed rule to shorten the time between the filing of a petition and the conduct of a representation election, Senator Jim DeMint (R-SC) introduced “The Fair Representation in Elections Act of 2011” (S. 1425). The bill would guarantee that no representation election is held within forty (40) days after the filing of a petition, and until the Regional Director has resolved all jurisdictional, unit determination and eligibility issues.

When the NLRB announced its intent to change election procedures earlier this year, it claimed that "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, as many speakers opined during the July 18 and 19 hearings, the proposed amendments to the NLRB's Rules and Regulations will also have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

At least six (6) other Republican Senators joined as original co-sponsors of DeMint's bill which is obviously directly at odds with the Board's efforts in this area.

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The second episode of a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast airs this morning.  Following up on last Friday's episode, I join Jon Hyman (Ohio Employer's Law Blog; @jonhyman), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of issues covered in our new book -- now entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

Both installments of the podcast are also available for on-demand listening at The Proactive Employer and via iTunes.

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The House Committee on Education and the Workforce passed a bill yesterday that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The Protecting Jobs from Government Interference Act (H.R. 2587), introduced by Rep. Tim Scott (R-SC), is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co.  According to the WSJ's Melanie Trottman:

The bill passed the House Education and the Workforce Committee on a 23-16 party-line vote, But it’s unclear when the full House might consider it, and it’s not likely to pass the Democratic-controlled Senate.

Republicans say the NLRB, an independent government agency that’s controlled by Obama administration appointees, has gone too far and needs to be stopped with legislation.

“Republicans refuse to allow federal bureaucrats to reverse the business decisions of employers,” Committee Chairman John Kline (R., Minn.) said at the committee meeting Thursday. The bill, he said, “takes a critical step to provide employers with the certainty they need to put Americans back to work, right here at home.”

Committee Ranking Member Rep. George Miller denounced the effort in a statement, calling it "a very reckless and partisan bill to destroy workers' rights."

More information and commentary:

• "House Republicans advance bill to curb authority of labor relations board" -- The Hill
• "Panel approves Scott's bill: Measure would strip some power from NLRB, which has sued Boeing over new 787 plant" -- Post and Courier
• "NLRB General Counsel defiant as subpoena showdown looms" -- In These Times
• "House Republicans put Boeing over workers rights in bill to cripple NLRB" -- AFL-CIO Now blog
• "On party line, House panel OK's bill to curb NLRB" -- Washington Times

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Regular readers of the blog are familiar with the intensity with which the National Labor Relations Board has recently pursued complaints against employers arising out of employee use of social media.  I recently had the opportunity to contribute a chapter on this topic to an upcoming Thompson publication, HR and Social Media: Practical and Legal Guidance, which should be on bookshelves within days. 

In advance of the publication, you should tune in for a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which I join the book's editor, Jon Hyman (Ohio Employer's Law Blog; @jonhyman), as well as Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of related issues.

Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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Monday and Tuesday next week, the National Labor Relations Board will hold its public hearings on its proposed rulemaking to shorten the time between the filing of representation petitions and the resulting elections.  Earlier, the Board announced the line-up of speakers selected to speak during the two day hearings.  The impressive list of speakers includes numerous former Board members, prominent labor attorneys, union officials and employer representatives.  The two Tuesday sessions conclude with remarks by Professors Dorian Warren and Kate Bronfenbrenner, respectively -- recent publishers of a study widely cited in support of the Board's efforts here.

The hearing will be webcast in its entirety at the Board's website.

More resources and commentary:

• "Time to Cut, Cap & Balance National Labor Relations Board" -- Bret Jacobson op-ed
• "NLRB's Proposed Rules Would Speed Up Union Election Process" -- Day Pitney on Martindale.com
• "Congressional hearing finds fault with proposed rule to shorten NLRB election period" -- Wolters Kluwer

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On Monday, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe. Relying on "a deep body of Tenth Circuit law expressing extreme deference to tribal sovereignty," the district court found that it had jurisdiction to enjoin the NLRB from proceeding with its hearing and that the Chickasaw Nation "is substantially likely to prevail on the merits of its claim for a declaratory judgment that it is not subject to the provisions of the NLRA."

The Chickasaw Nation holds a series of treaties with the United States and is governed by its citizen-elected government in accordance with the Chickasaw Nation Constitution. Through the Chickasaw Nation Division of Commerce, it operates gaming facilities on tribal trust property. Revenues generated by the Nation's Indian Gaming Regulatory Act (IGRA) gaming are used exclusively by the Nation to fund Tribal government operations or programs, or to provide for the general welfare of the Nation and its citizens, consistent with the requirements of IGRA. These functions and purposes include but are not limited to healthcare, education, law enforcement, youth and family services.

In granting the Chickasaw Nation's motion, the district court noted:

Because of the extraordinary number of tribes located within its jurisdiction, the Tenth Circuit is uniquely experienced in the application of the canons of Indian law. The Tenth Circuit has clearly held that "federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization." ... Such Tenth Circuit authority is in accord with the United States Supreme Court's holding that before a treaty right will be abrogated, there must be a "clear and plain" expression of Congress' intent to do so.

It is undisputed that the National Labor Relations Act makes no explicit reference to Indian tribes.

The district court acknowledged the District of Columbia Circuit's decision in San Manuel Indian Bingo & Casino, 475 F.3d 1306 (D.C. Cir. 2007).  In that case, the D.C. Circuit ruled that the NLRB does have jurisdiction over tribally owned businesses based upon a statement of questionable significance from a 1960 Supreme Court case that "a general statute in terms applying to all persons includes Indians and their property interests." Noting that the Tenth Circuit "firmly disavowed" the reasoning employed in San Manuel because the 1960 Supreme Court decision involved proprietary interests rather than sovereign interests, the district court found that it had jurisdiction to temporarily enjoin the NLRB from proceeding with its hearing against the Chickasaw Nation.

The district court's order comes on the heels of Rep. Kristi Noem's (R-SD) bill introduced on June 23, 2011, that seeks to clarify that the NLRB does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty. Prior to 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA, but that changed with the NLRB's San Manuel decision affirmed by the D.C. Circuit as noted above. Representative Noem's proposed legislation is intended to reverse the San Manuel decision.

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On Thursday, Rep. Kristi Noem, (R-SD), introduced legislation to clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty. The bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335) was immediately referred to committee. The text is not yet available from the Government Printing Office.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed.  Rep. Noem has announced that this bill is intended to reverse that decision, but also suggests that beyond the jurisdictional issue, it is intended to limit labor's influence. A statement accompanying her introduction of the bill asserts:

The legislation stands to defend tribal sovereignty and promote economic opportunities on reservations lands by eliminating ambiguity in existing federal law.

“As a matter of sovereignty, the tribes don’t need big labor meddling in their affairs,” said Rep. Noem. “By removing this ambiguity in the law we can promote economic development on tribal land because businesses, large and small, need more certainty before they can grow.”

The bill is co-sponsored by five other Republicans, including House Health, Education, Labor & Pensions Committee Chair Rep. John Kline (R-MN) and Presidential candidate Rep. Ron Paul (R-TX).

More commentary and resources:

• "Noem bill would ban National Labor Relations Board from tribal businesses" -- Mitchell Republic
• "Rep. Noem wants Tribal Sovereignty protected" -- KOTA-TV
  
• "Noem seeks to restrict NLRB jurisdiction, Big Labor from tribal businesses" -- Sioux City Journal's "Politically Speaking" blog
• Turtle Talk blog's "NLRB" posts
• Native American Rights Fund's Supreme Court Project -- San Manuel

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Just two months after the Supreme Court's decision in AT&T Mobility v. Concepcion, in which the Court held that the use of class arbitration waivers in consumer contracts are permissible even when they conflict with state law, the National Labor Relations Board has invited interested parties to file briefs regarding whether an employer violates Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing an arbitration agreement with its employees that denies the arbitrator any authority to fashion the proceeding as a class or collective action.  On June 16, 2011, the Board issued a Notice and Invitation to File Briefs on this issue in the case of D. R. Horton, Inc., Case No. 12-CA-25764.

Exactly one year earlier, on June 16, 2010, Ronald Meisburg, the NLRB's General Counsel at the time, issued a guideline memorandum for unfair labor practice charges involving employers' mandatory arbitration policies. In the memorandum, the General Counsel concluded that so long as the arbitration agreement does not require the arbitration of claims under the National Labor Relations Act:

[e]mployers...may require individual employees to sign a...waiver of their right to file a class or collective claim without per se violating the Act. So long as the wording of these agreements makes clear to employees that their right to act concertedly to challenge these agreements by pursuing class and collective claims will not be subject to discipline or retaliation by the employer, and that those rights— consistent with Section 7—are preserved, no violation of the Act will be found.

However, in the Board's recent Notice in the D. R. Horton  case, the NLRB asks interested amici to file a brief addressing the following issue:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

As such, it appears that the Board may not agree with the former General Counsel's analysis, and may find that arbitration agreements precluding class or collective action arbitrations violate Section 8(a)(1) of the Act.

The deadline for amici briefs is July 20, 2011. The parties may then file responsive briefs on or before August 3, 2011.

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On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Board's Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board's preemption theory has significant merit under these circumstances.  Other witnesses at that hearing encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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Last week in Supply Technologies, LLC, Case No. 18-CA-19587 (May 31, 2011), Administrative Law Judge George Alemán found that the employer’s implementation of an alternative dispute resolution program unlawfully interfered with its employees’ right of access to the Board’s processes under Section 7 of the National Labor Relations Act.

The decision noted that the alternative dispute program did not explicitly restrict employees’ Section 7 activity, but a policy may still violate the NLRA if "employees would reasonably construe the language of the rule or policy to prohibit Section 7 activity." In drawing his conclusion the judge was required to "give the rule or policy in question a reasonable reading, and…refrain from reading particular phrases in isolation or presuming improper interference withemployee rights."

In this particular case, the employer's documents explained that the program's grievance arbitration procedure was to be the sole method for employees to "resolve all of their disputes, controversies, and claims," including "claims for discrimination, harassment, or retaliation" -- with the exception of workers compensation claims, unemployment claims, and criminal claims. Although the program provided that an employee could "still file a charge or complaint with a government agency" and was "free to cooperate with a government agency that might be investigating a charge or complaint," the program required the employee to "waive[] any right [he/she] might have otherwise had to any remedy that the agency might try to obtain on [his/her] behalf (to the extent this is permissible under law.)"

Finding these statements conflicting and ambiguous, the ALJ held that the program’s waiver requirement rendered meaningless whatever rights employees purportedly had under the program to file a charge with the NLRB. While there appeared to be some effort to include a disclaimer in the parenthetical quoted above, this language did not appear in other related documents setting forth the terms of the program.  As a result, the ALJ resolved the ambiguities against the employer as promulgator of the program, and determined that it had a chilling effect on employees’ willingness to exercise their Section 7 rights to file a charge with the Board.

Accordingly, employers should be mindful when creating and/or reviewing alternative dispute programs to ensure that they do not expressly limit employees’ right of access to the NLRB and its processes.  Moreover, they should eliminate any ambiguity or inconsistencies in their applications, forms, acknowledgments or other related documents by which employees might reasonably construe the program to prohibit Section 7 activity.

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In today's Washington Post, columnist Harold Meyerson chronicles frustration with the state of the labor movement in America and the resulting shift in the organizing strategy of the AFL-CIO and the SEIU.  In "Labor's Hail Mary Pass," he asserts this shift "reflects a belief that the American labor movement may be on the verge of extinction and must radically change its game."

After highlighting the failure of successive administrations to overhaul the 1935 National Labor Relations Act, he discusses the new strategic approaches these prominent labor organizations are taking in the face of dwindling private-sector union representation:

While some unions still wage more conventional organizing campaigns, the campaign that best captures the desperation of American labor today is that of the SEIU. Perhaps the best-funded and most strategically savvy of American unions, SEIU has embarked on a door-to-door canvass in the minority neighborhoods of 17 major American cities. The goal isn’t to enroll the people behind those doors in a conventional union but, rather, into a mass organization of the unemployed and the underpaid that can turn out votes in 2012 and act as an ongoing pressure group for job creation and worker rights during (presumably) Barack Obama’s second term.

“We realized we could organize one million more people into the union and it wouldn’t in itself really change anything,” SEIU President Mary Kay Henry told me earlier this year. “We needed to do something else — something more.”

The SEIU’s program — like its semi-counterpart in the AFL-CIO’s Working America program, a door-to-door canvass in white working-class neighborhoods — will surely help Democatic candidates, despite the frustrations that nearly all labor leaders feel toward the party. But, like Working America, it signals a strategic shift by American labor, whose ranks have been so reduced that it now must recruit people to a non-union, essentially non-dues-paying organization to amass the political clout that its own diminished ranks can no longer deliver. Since labor law now effectively precludes workplace representation, unions are turning to representing workers anywhere and in any capacity they can. It’s time, they’ve concluded, for the Hail Mary pass.

Read the entire piece here.

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Two days after issuance of the complaint in Hispanics United of Buffalo, Case No. 3-CA-27872, the National Labor Relations Board issued another complaint against a company for a termination arising out of employee use of social media.  In Karl Knauz Motors, Inc., Case No. 13-CA-46452, the Board alleges that a car dealer unlawfully fired a salesperson for Facebook comments critical of the employer.

Paragraph IV of the complaint reads simply:

(a) On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees' concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

(b) On or about June 22, 2010, Respondent discharged Charging Party Becker.

(c) Respondent engaged in the conduct described above in paragraph IV(b) because Charging Party Becker engaged in the conduct described above in paragraph IV(a) and to discourage employees from engaging in these or other concerted activities.

This is just the latest in a recent string of cases handled by the Board arising out of employer efforts to control employee social media use which might impact its interests.  Recognizable patterns are starting to emerge in the Board's treatment of these cases:

• The Board will take an aggressive approach toward workrules and policies -- including social media policies -- which are arguably "overly broad," or might be interpreted to restrict employees' in the exercise of protected, concerted activity.
• The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.
• Simple personal attacks posted off-the-clock, outside the workplace -- even offensive or profane insults -- may retain the protection of the Act if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged ULP's. 

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.

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Yesterday, Senator Lamar Alexander (R-TN) took to the floor of the Senate to introduce the "Jobs Protection Act" (S. 964).  The bill, co-sponsored by Senators Jim DeMint (R-SC) and Lindsay Graham (R-SC) and thirty-one other Republican Senators, would by Sen. Alexander's description:

• clarify that the NLRB would not be able to order an employer to relocate jobs from one location to another.

• guarantee an employer the right to decide where to do business within the United States.

• protect an employer’s free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination claim

The text of the bill, currently identified as "A bill to amend the National Labor Relations Act to clarify the applicability of such Act with respect to States that have right to work laws in effect" is not yet available online.  Senator Alexander last week, however, submitted a proposed amendment to a small business bill intended to accomplish the same stated intentions.  The Senator's comments today suggest that the stand-alone legislation may contain additional or broader language than the amendment previously submitted.  We should know shortly.

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The National Labor Relations Board this afternoon filed suit against the State of Arizona in the federal District Court for the District of Arizona.  Consistent with its previous announcement of its intent to do so, the Board is seeking a Declaratory Judgment proclaiming Arizona Constitution Article 2 § 37 pre-empted by the National Labor Relations Act. 

Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

After citing sections of the NLRA which pertain to the designation or recognition of a union representative, the Board's Complaint asserts:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA, 29 U.S.C. §§ 157 and 159, or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA, 29 U.S.C. § 158(f).

Moreover, argues the Board, the provision ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Following an earlier exchange of positions between the Board and four states on this issue, several witnesses at a February 11, 2011 hearing before the House Committee on Education and the Workforce encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

The State Attorneys General responsible for enforcing their states' secret ballot protection measures responded strongly to the initial threats by the Acting General Counsel to initiate litigation.  In the face of politically charged reactions to other recent choices, the Acting General Counsel is showing no signs of embracing a less aggressive approach going forward.

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During floor debate on the SBIR/STTR Reauthorization Act (S. 483), Senator Lamar Alexander (R-TN) announced that he, Senator Jim DeMint (R-SC) and Senator Lindsay Graham (R-TN) would be introducing a bill entitled the "National Right to Work Protection Act."  Sen. Alexander introduced the proposal thus:

I rise today to talk about a piece of legislation which will be both a bill that Senator Graham and Senator DeMint and I will introduce tomorrow and an amendment that I have filed to the small business bill on behalf of the three of us.

We are calling it the Right to Work Protection Act, and it is our intent to preserve the right of each State to make a decision for itself about whether it will have a right-to-work law and have an ability to enforce it. ...

The text of the stand-alone bill is not yet available online, but the language submitted as Amendment SA 303 reads as follows:

 SEC. __. PROTECTION OF RIGHT TO WORK.

    (a) Applicability of NLRA to State Right to Work Laws.--Section 14 of the National Labor Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and inserting the following:

    ``(b) Nothing in this Act shall be construed to limit the application of any State law that prohibits, or otherwise places restraints upon, agreements between labor organizations and employers that make membership in the labor organization, or that require the payment of dues or fees to such organization, a condition of employment either before or after hiring.''.

    (b) Applicability of Railway Labor Act to State Right to Work Laws.--Title II of the Railway Labor Act (45 U.S.C. 181 et seq.) is amended by adding at the end the following:

   ``SEC. 209. EFFECT ON STATE RIGHT TO WORK LAWS.

    ``Nothing in this Act shall be construed to limit the application of any State law that prohibits, or otherwise places restraints upon, agreements between labor organizations and carriers that make membership in the labor organization, or that require the payment of dues or fees to such organization, a condition of employment either before or after hiring.''.

Presumably the bill will be identical.  Senator DeMint previously introduced a National Right to Work bill (S.504) along with seven co-sponsors.  That bill, which would prohibit requiring union membership or dues payment as a condition of employment nationwide, has been referred to the Senate HELP Committee.

More commentary:

• "NLRB's Complaint Against Boeing Inspires Legislation" -- NAM's Shopfloor.org blog
• "Graham, DeMint, Alexander Propose Law to Protect Right to Work States" -- Charleston Regional Business Journal
• "Right to Work: Senate Republicans Pick Fight With Labor Board" -- Huffington Post
• "GOP Senators Respond to NLRB's Boeing Decision" -- The Hill (blog)

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Steven Greenhouse writes in the New York Times that the National Labor Relations Board plans to proceed with lawsuits against two of the four states it threatened earlier this year over state constitutional amendments to ban union recognition by card-check.  On January 14, 2011, Acting General Counsel Lafe Solomon advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections.  In response the states argued that the amendments support the current federal law and did not disrupt the federal regulatory scheme.  

In February, the Acting General Counsel replied to the states indicating that the Board would refrain from bringing suit while they discussed whether they could resolve the issue "without the necessity of costly litigation."  Now, Greenhouse reports the Board has indicated it will soon file federal lawsuits against Arizona and South Dakota seeking to invalidate the amendments: 

In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.

The Board has suggested it might proceed against the other two states at a later date.  Greenhouse includes reaction from Arizona and South Dakota to the announcement: 

In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”

At a February 11, 2011 hearing before the House Committee on Education and the Workforce, several witnesses indicated that any preemption dispute over this issue could be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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Senator Jim DeMint (R-SC) has introduced a National Right to Work bill in the Senate, joined by seven Republican original co-sponsors.  In a statement issued earlier today, Senator DeMint identified Senators Tom Coburn (R-OK), Orrin Hatch (R-UT), Mike Lee (R-UT), Rand Paul (R-KY), James Risch (R-ID), Pat Toomey (R-PA) and David Vitter (R-LA) as co-sponsors of the National Right to Work Act.  

"Right-to-Work" laws generally prohibit "union security" agreements -- or contract provisions between unions and employers making membership or payment of union dues or fees a mandatory condition of employment.  A union security agreement is generally a permissible exception to the National Labor Relations Act's prohibition against discrimination based on union membership or support.  The 1947 Taft-Hartley amendments to the Act, however, added subsection 14(b), allowing states to pass "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Senator DeMint's bill is not yet available, but presumably it would codify in the NLRA language similar to any one of the various state provisions which outlaw mandatory dues provisions.  UPDATED (6:00 pm): The National Right to Work Act would strike the provisions of Section 8(a)(3) and Section 8(b) of the NLRA, and Section 2(11) of the Railway Labor Act, which exempt "union security" agreements from prohibitions against discrimination based on union membership or support.

In introducing the bill, the Senators point to a recent poll by the National Right to Work Foundation which reported:

Eighty percent supported the Right to Work principle that union membership and dues payment should be voluntary and not required as a condition of employment.

Senator DeMint's statement asserts:

“No American should be forced to join a union and pay dues to get a job in this country,” said Senator DeMint. “Many Americans are already struggling just to put food on the table, and they shouldn’t have to fear losing their jobs or face discrimination if they don’t want to join a union. Forced-unionism shields unions from member accountability and has a detrimental effect on the economy. In states where companies are forced to hire only union workers, businesses have struggled to compete while they deal with counterproductive work rules.”

Conversely, in previous sessions of Congress, Rep. Brad Sherman (D-CA) introduced legislation to strip Section 14(b) out of the NLRA, nullifying state Right-to-Work laws.  When he introduced the most recent version, H.R. 6384, in October 2010, the Congressman explained his position thus:

“...Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

UPDATED:  A copy of Senator DeMint's proposed bill is here.

(H/T: Senatus blog)

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On February 11, 2011, the House Committee on Education and the Workforce held a hearing entitled "Emerging Trends at the National Labor Relations Board."  Witnesses at that hearing were highly critical of the recent activity of the Board.  That afternoon, NLRB Chairwoman Wilma Liebman issued a statement declaring that the agency was merely "coming back to life after a long period of dormancy."

Late last week, Chairman Liebman and Acting General Counsel Lafe Solomon submitted separate written statements for inclusion in the hearing record.  Acting GC Solomon's letter focuses on his numerous initiatives announced by GC Memoranda the past few months.

Chairman Liebman's statement takes exception to the testimony of the management attorneys on the panel, and continues her defense of the agency's direction thus:

What are the "emerging trends" at the Board?  I think there are three.

First, greater productivity in decision-making, reflecting the Board's new quorum and with it, the ability to decide cases and avoid deadlock.  Second, greater transparency and public participation in its decision-making -- perhaps at the price of greater controversy, but with a corresponding gain in the fairness and quality of the Board's decision-making process.  Third, a willingness to take carefully considered steps to keep the National Labor Relations Act vital, as exemplified in the Board's unanimous decision to begin awarding compound interest on backpay awards to employees victimized by unfair labor practices -- more than 20 years after the Board was first urged to adopt that remedial change.

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As we reported yesterday, Rep. Tom Price (R-GA) introduced an amendment to H.R. 1, the Full-Year Continuing Appropriations Act  to defund the National Labor Relations Board for the remainder of the 2011 Fiscal Year.  In response to an inquiry about this proposal, Rep. Price told Labor Relations Today:

The spending spree in Washington has put our nation on a perilous path to fiscal ruin.  House Republicans understand we need to cut spending immediately to help get our economy growing and more Americans back to work.  Every step we can take to responsibly rollback the cost of government is important.  By striking $233 million in funding for the National Labor Relations Board, we can save taxpayer dollars and help protect American job creators from an out-of-control agency bent on installing ‘card check’ (Secret Ballot Destruction Act) via regulations and circumventing the will of the American people.

The House Clerk's minutes of the Floor proceedings overnight indicate that following debate on the Amendment, the Chair announced approval by a voice vote.  Rep. George Miller (D-CA), Ranking Member of the Committee on Education & the Workforce, then demanded a voice vote, which resulted in postponement of further proceedings:

12:01 A.M. - Amendment offered by Mr. Price (GA).

An amendment numbered 410 printed in the Congressional Record to eliminate funding for the National Labor Relations Board.

DEBATE - The Committee of the Whole proceeded with debate on the Price (GA) amendment under the five-minute rule.  

12:15 A.M. - POSTPONED PROCEEDINGS - At the conclusion of debate on the Price (GA) amendment, the Chair put the question on adoption of the amendment and by voice vote, announced that the ayes had prevailed.  Mr. George Miller (CA) demanded a recorded vote and the Chair postponed further proceedings on the question of adoption of the amendment until a time to be announced.

It appears that late this morning, the House took a recorded roll call vote (No.75) and the amendment failed.

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The House continues its consideration of H.R. 1, the Full-Year Continuing Appropriations Act for FY2011.  This bill, if passed, will make appropriations for the continuing operation of the various federal government agencies through September 30, 2011.  As reported by The Hill several hundred additional amendments have recently been introduced, which are taking up considerable time in the debate.

Among the amendments introduced is C.R. 578, introduced by Rep. Tom Price (R-GA), to defund the National Labor Relations Board, as follows:

At the end of the bill (before the short title), insert the following:

Sec. __. None of the funds made available by this Act may be used to pay the salaries and expenses of personnel to carry out and implement the National Labor Relations Act (29 U.S.C. 151 et seq.)

Indeed, there are several hundred similar proposals to defund this or that amongst the offered amendments to H.R. 1, and many will fall victim to political horse-trading and debate as the Republicans and Democrats work to finalize a bill to continue funding Department of Defense appropriations, among other things.  Yet on the heels of last Friday's House Committee hearing on the new "aggressive" tone of the National Labor Relations Board, and the Board Chairman's assertive response, this would seem to provide a harbinger of things to come with respect to Congressional oversight of the agency.

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The National Football League today filed an unfair labor practice (ULP) charge against the NFL Players Association, alleging that the union has failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act.   The text of the charge, filed at the Regional Office for Region 2 in New York City, accuses the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."

More specifically, the charge describes the union's alleged unlawful conduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct  indicating a lack of "intent to reach agreement through good faith collective bargaining."

The charge continues, to spell out the heart of the NFL's concern -- the NFLPA's long apparent strategy of coordinating a decertification in order to obtain a strategic advantage:

These tactics have been and are integral to -- indeed, they are in preparation for -- the NFLPA's announced strategy to run out the clock and, after the CBA expires on March 3, purport to "disclaim interest" as the representative of the NFL players, a strategy utilized by the Union in a prior negotiation and one that the NFLPA often has threatened to resort to in this negotiation should it be deemed more advantageous to the players than the collective bargaining process that the Union is obligated by law to follow.  On the false premise that the bargaining relationship would effectively be terminated as a result of its sham dislaimer, the NFLPA has made plain that it will then seek (i) to enjoin, as a supposed antitrust violation, any effort by the League/Clubs in support of their bargaining demands to exercise their rights under federal labor law lawfully to lock out the players, and (ii) once again to achieve a favorable agreement with the NFLMC through the threat, commencement and subsequent settlement of antitrust litigation, rather than through the give and take of good faith collective bargaining contemplated by the Act and enforced by the National Labor Relations Board.

As evidence, the NFL suggests the Board view the NFLPA's statements and conduct over the course of the last 20 months. 

One of the interesting results of this filing is that, pursuant to the NLRB's "blocking charge" rule, the agency will likely not process a decertification petition filed by the players now, until after it has fully investigated this charge.  As a result, if the NFLPA intends to continue with its antitrust leverage strategy, the union itself will have to "disclaim interest" in representing the employees -- essentially, it must walk away from the players.  It is the union's ability to properly do this that the league is attacking in this charge.  According to Chapter 8 of the NLRB's Outline of Law and Procedure in Representation Cases:

To be effective, [a disclaimer] must be clear and unequivocal and made in good faith. Retail Associates, 120 NLRB 388, 391–392 (1958); Rochelle’s Restaurant, 152 NLRB 1401 (1965); and Gazette Printing Co., 175 NLRB 1103 (1969).  In International Paper, 325 NLRB 689 (1998), the Board characterized the request as being one of “sincere of abandonment with relative permanency.”

Thus, a union’s bare statement is not sufficient to establish that it has abandoned its claim to representation if the surrounding circumstances justify an inference to the contrary. 3 Beall Bros. 3, 110 NLRB 685, 687 (1955).  Its conduct, judged in its entirety, must not be inconsistent with its alleged disclaimer H. A.  Rider & Sons, 117 NLRB 517, 518 (1957).  McClintock Market, 244 NLRB 555 (1979), and Ogden Enterprises, 248 NLRB 290 (1980).  Windee’s Metal Industries, 309 NLRB 1074 (1992).

In assessing the effectiveness of any disclaimer by the NFLPA, the NLRB will indeed study carefully the union’s conduct over the last several months in bargaining, and perhaps more importantly, how it conducts itself after the supposed disclaimer.  Any effort by the union and its current leadership to continue to drive the players' negotiating strategy will surely undermine its position on these allegations.

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Our take on the American Medical Response, Inc. settlement, which continues to attract attention, should be no surprise to regular readers of this blog.  I spoke a bit last week to Business Insurance (subscription required) about some "take-aways":

"Though there was no decision in this case, I think employers need to recognize that the NLRB-issued complaint shows a change,” said Seth Borden, New York-based partner in McKenna Long & Aldridge L.L.P.'s labor practice. “Three or four years ago, it was very likely the board would not have filed this complaint, and it shows a marked change in direction in how it views social media,” he said.

Fellow labor attorneys Sara Begley and Eric B. Meyer provided helpful insights as well.

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Following this morning's House Committee hearings on the National Labor Relations Board's recent activity, NLRB Chairwoman Wilma Liebman has issued this statement:

This morning, a subcommittee of the House Education and The Workforce Committee held a hearing on "Emerging Trends at the National Labor Relations Board". In response to requests for comment, Chairman Wilma Liebman issued the following statement:

"The most significant ‘emerging trend’ at the NLRB is that the agency is coming back to life after a long period of dormancy. After more than two years without a quorum due to chronic vacancies, the Board now has four members and has been tackling many of the difficult cases that languished for years. We are actively seeking input from practitioners and from the public, by inviting briefs for important cases that are under review, and by using the process of federal rulemaking to seek comments on one potential rule change intended to inform American employees of their statutory workplace rights. 

 It is unfortunate that the work of the Board is often viewed through a partisan lens, but that has been the case for decades. We simply intend, to the best of our ability, to continue to apply the law and carry out the agency’s statutory mission fairly and openly.  I look forward to working with Congress in the months ahead to demonstrate our adherence to that goal, and I welcome a serious dialogue about these important issues."

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If you missed the hearings held this morning by the House Committee on Education and the Workforce, and weren't able to follow our live-Tweet stream of the proceedings, you can watch the archived webcast here.

In his opening statement, Chairman Rep. Phil Roe (R-TN) introduced the hearing thus:

That is why today’s discussion about the National Labor Relations Board is so important. The NLRB was created more than 75 years ago to perform two functions: first, to determine by free democratic choice whether workers desire union representation and if so, by which union; and second, to prevent and remedy unfair labor practices by employers and unions. 

The board serves as a quasi-judicial body. Its five members are chosen by the president, and the majority of members share the president’s views on labor policy. As a result, the board has generated a lot of debate over the years. However, that debate has recently been elevated to new heights since the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach. 

Numerous actions by the board suggest it’s eager to tilt the playing field in favor of powerful special interests against the interests of rank-and-file workers.

The statements of witnesses Philip Miscimarra of Morgan Lewis; G. Roger King of Jones Day; former General Counsel Arthur Rosenfeld; and NYU Professor Cynthia Estlund are available online.

As one can see from the witness statements and our live-Tweet transcript of the question and answer portion, there was much discussion at today's hearing about:

• The Acting General Counsel's initiatives promoting extraordinary remedies and pursuit of 10(j) preliminary injunctions;
• The Board's proposed rule-making to require all employers to post workplace notices;
• The pre-emption dispute between the AGC and four states regarding their state constitution secret ballot amendments;
• How passage of the Secret Ballot Protection Act would resolve that pre-emption dispute;
• The Board's recent trend of soliciting amicus briefs; and
• various other recent decisions of the Board.

We will continue to follow and report on these trends and developments as they unfold.

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In about an hour, the House Committee on Education and the Workforce will gavel in its hearing, "Emerging Trends at the National Labor Relations Board."  We will be "Tweeting" real-time updates from the hearing on our Twitter feed, @LRToday, and updating this blog feed regularly.

In advance of the hearing, here is some of the press coverage of today's proceedings:

• "Capitol Hill Happenings: Today in Congress" -- Fox News
• "A Backlash Looms For The Federal Labor Board" -- BusinessWeek
• "Labor board flexes muscle, to chagrin of business" -- Washington Post
• "What to Expect From President Obama's NLRB" -- Part 1 & Part 2

 UPDATE:  Re-cap of the hearing can be found here.

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Further proof that all things "Facebook" capture the public's attention nowadays, the Regional Director for Region 34 of the National Labor Relations Board appeared on a rock radio station's morning program today to discuss the Board's settlement of the American Medical Response case.  Monday night, Regional Director Jonathan Kreisberg approved the case settlement which included a traditional required Notice posting, commitments from the employer to revise its "Blogging and Internet Posting Policy," and an non-admission of liability clause. 

Appearing on Springfield, Mass. station WAQV Rock 102's "Bax and O'Brien" show earlier, the Regional Director discussed the case and provided this takeaway for employers:

It doesn't really set a precedent because it's not a final decision, it's not an order.  But the policy and practices under the Act are that if a case comes to us with a rule such as this, that under the existing law it would likely be found to be overly-broad and bad.  We can't go out and police -- we don't police companies.  That's not our job, it's not our authority.  We can only react when someone comes to us and files a charge, and then we investigate and make a decision. 

As we indicated Monday night, we expect additional cases in Region 34 and elsewhere to further define the parameters of what the Board considers and overly-broad Social Media policy.  Chairman Liebman has long indicated that she believes the Board must take a more prohibitive view of employer policies that might potentially be construed to impact protected activity.  Employers would be well advised to review their policies now for compliance with the law.  With all the publicity that this case garnered in the mainstream media, employers can count on the fact that somewhere, someone else is already doing so.

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On the eve of trial, the National Labor Relations Board tonight announced a settlement in American Medical Response of Connecticut, Inc., 34-CA-12576 -- a/k/a/ the "Facebook firing" case.  The hearing in the case was postponed once before and scheduled to begin tomorrow, but per the Board's press release, the parties have resolved the matter:

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The termination of the employee for undeniably vulgar commentary about her supervisor, on the one hand, and the alleged Weingarten violation in the denial of union representation, on the other,  were the "grey" facts that muddied the analysis of this case.  It would seem for now that we have been denied a concrete sense of the Board's developing approach to social media cases.

But we might not have to wait for long.  On February 4, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company at the Regional Office for Region 34.  Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No. 34-CA-12906 contains no specific allegations that the company improperly disciplined any particular employee.  Rather, this charge alleges that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" policies in its employee handbook, including a policy against:

The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.

Region 34 and the General Counsel's treatment of what appear to be simpler facts in this case should provide a good deal more guidance about how the NLRB will evaluate social media policies in the future.

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The Acting General Counsel of the National Labor Relations Board has responded to the joint letter by the Attorneys General of Arizona, South Carolina, South Dakota and Utah proclaiming their intent to defend their state constitutions against any NLRB litigation to invalidate recent secret ballot amendments.

On Friday, January 14, 2011, the Acting GC advised the Attorneys General of these four states that he believed the National Labor Relations Act preempted their states' constitutional amendments to require the use of secret ballots in union representation elections.  He requested a response from the states within two weeks, and threatened a federal lawsuit unless the states stipulated that their secret ballot provisions were unconstitutional.

Last week, the states sent a letter back rejecting the Board's assertion and refusing to "stipulate to the unconstitutionality" of the state amendments.  The AGs' letter defended the significance of secret ballots in union representation elections, and urged the Board to reconsider its threat to litigate.

By letter yesterday, the Acting GC advised the four states:

As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation.  My staff will shortly be in contact with the staff members you have designated to explore this issue further.

Employers in all fifty states should continue to follow these developments.  The results of these discussions should reveal a bit more about the extent to which the Board will seek to elevate alternative methods of designating a union representative.

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On Friday, the National Labor Relations Board published a decision holding that an employer violated Section 8(a)(1) of the Act for terminating an employee before she engaged in protected "concerted activity."  In Paraxel Industries, LLC, 356 NLRB No. 82 (Jan. 28, 2011), the ALJ had concluded that there was no violation of the Act when the employer fired employee Theresa Neuschafer because she had not consulted with other employees about her workplace complaints, nor had any other employee encouraged her to speak up her issues.   The Board, however, reversed, holding that the employer's termination was a "pre-emptive strike to prevent her from engaging in activity protected by the Act.”

The Charging Party was an individual Licensed Practical Nurse (LPN).  She asked a co-worker, who had recently returned to work after having quit earlier, about her wages.  The co-worker lied, leading Neuschafer to believe that the co-worker and spouse who worked with them were paid a higher wage rate, in part because they were South African like certain key management personnel.  Neuschafer complained to her immediate supervisor about her wages, remarking that perhaps everyone should quit and come back with a raise.  Higher management later interviewed Neuschafer who reiterated her complaint, but indicated clearly that she had not discussed the issue with any co-workers.  She was subsequently terminated.

In concluding that her termination violated Section 8(a)(1) of the Act, the Board reasoned:

Neuschafer’s discharge had the obvious effect of restricting her own further protected discussions of wages and possible discrimination with other employees, thus interfering with her Section 7 rights. As discussed above, the discharge also had the effect of keeping other employees in the dark about these matters, thus preventing them from discussing, and possibly inquiring further or acting in response to, substandard wages or perceived wage discrimination. We therefore find that the Respondent’s discharge of Neuschafer violated Section 8(a)(1) of the Act.

The Board expressly declined to determine whether or not her behavior constituted "protected, concerted activity."  But in this holding, the Board has clearly and broadly expanded the range of conduct protected by the National Labor Relations Act.  Nearly any individual complaint by an employee might possibly, maybe, potentially one day provide the basis for concerted behavior if enough employees subsequently become aware of it so that perhaps one more employee discovers -- or subsequently decides -- he or she may share a similar concern.

To be sure, there were troubling facts alleged in this case with regard to activity protected by other federal employment statutes -- most notably, Title VII's anti-retaliation provisions.  But now an employer who terminates an employee who has in the past complained about a particular individual work issue may also face 8(a)(1) exposure -- notwithstanding the fact that the employee never took any concerted action regarding the issue.

Other resources and commentary:

• David Foley's creative case animation and commentary at his LaborRelated blog
• "Huge Expansion of 'Protected, Concerted Activity'?" -- Workplace Prof Blog
• Meyers Industries, 268 NLRB No. 73 (1984)  -- cited by Member Hayes in dissent: 

"I note that finding a Sec. 8(a)(1) motivational discharge violation in the absence of any actual concerted activity is unprecedented, and, at the very least, in tension with Meyers Industries, supra. I have serious reservations about this finding and the potential breadth of its application in future cases."

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This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – Arizona, South Carolina, South Dakota and Utah – that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

More commentary, resources:

• "State Constitutional Amendments Conflict with NLRA" -- NLRB Fact Sheet
• "NLRB: Federal Law Pre-Empts State Secret-Ballot Amendments" -- AFL-CIO Now blog
• "NLRB: State Secret Ballot Measures Are Pre-Empted" -- Workplace Prof Blog
• "Obama Admin Bullies States Over Card Check Rules" -- Washington Examiner "Beltway Confidential"

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As 2010 draws to a close, the National Labor Relations Board shows no signs of slowing down.  On the heels of yesterday's announcement by the Acting General Counsel that Regional Offices should seek unique and broader remedies in organizing cases, the Board today has submitted to the Federal Register a Notice of Proposed Rulemaking.  The proposed rule would require all covered employers to notify employees of their rights to organize and bargain collectively by posting a notice in their workplace.

The Board's submission states that the Board:

believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.

Failure to post the notice would be considered an unfair labor practice by the Board -- presumably within the language of Section 8(a)(1) of the Act.  This proposed notice is similar to one finalized earlier this year by the U.S. Department of Labor for federal government contractors.  The proposed poster, set forth in the Appendix to the Notice of Proposed Rulemaking, 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 proposed notice continues, listing several examples of unlawful behavior under the NLRA.  The Board's submission includes the dissenting view of Member Brian Hayes, which questions the Board's authority to impose such a requirement, and sanctions for non-compliance.  Public comments on the proposed rule may be filed with the Board's Executive Secretary within sixty (60) days of publication in the Federal Register, expected later today.  

Interestingly, the Board acknowledges that this rule was originally proposed in a petition to the NLRB by Charles Morris, Professor Emeritus of Law, Southern Methodist University, in 1993.   Professor Morris is known for a number of novel legal theories in support of expanding collective-bargaining rights under the NLRA.  Most recently, the arguments outlined in his book, "The Blue Eagle at Work" provided the foundation for a United Steelworkers effort before the Board in furtherance of minority union bargaining rights.   

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Last week, the National Labor Relations Board posted a Notice and Invitation to File Briefs in Case 30-CA-17185, Roundy’s Inc. and Milwaukee Building and Trades Council, AFL-CIO.

On November 12, 2010, the Board issued a Supplemental Decision and Order finding that the Employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting Council representatives from handbilling in front of 23 of its 26 stores. In so holding, the Board determined that the employer had only a non-exclusive property right to the areas where the union representatives were handbilling.

The Board severed the allegations concerning two additional store locations where the employer did possess an exclusive property right. In connection with these two locations, the General Counsel has alleged that the employer violated Section 8(a)(1) because it prohibited union access at those locations while allowing other individuals and organizations to use its premises for non-business-related activities. Thus, under the holding in Sandusky Mall Co., 329 NLRB 618, 623 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001), the General Counsel argues that this discriminatory denial of access violates the Act.

The Board has invited the parties and interested amici to address the continuing viability of the Sandusky Mall standard, or preferable alternatives thereto. This in itself is noteworthy as increased union access to private employer property has been one of the more prominent developments sought by pro-labor elements following the apparent demise of the Employee Free Choice Act. It is obviously an area where a sympathetic Board majority can effectuate change in the absence of legislative action.

But the third question posed by the Board is also intriguing:

3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?

Most people associate the Register Guard case with the permissible scope of an employer’s e-mail and internet usage policy as it pertains to union activity. As we have noted previously, repeatedly and recently, Chairman Liebman and the current Board are likely to overturn that portion of the Register Guard holding at their earliest opportunity. But Register Guard also announced what many saw at the time as a departure from the Board’s standards in analyzing discriminatory application of any workplace policy. The Board announced:

[A]n employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.[] For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Court of Appeals for the D.C. Circuit, however, refused to enforce that portion of the Board’s Order. The Board’s solicitation of positions on this reasoning, however, indicates a clear desire to restate Board law on this point. So, the ultimate holding in the Roundy’s case may have application to a far broader range of allegations of discriminatory conduct by employers against union activity.

Briefs not exceeding 25 pages in length may be filed with the Board in Washington, D.C. on or before December 13, 2010.

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Back in August, the Board granted review in Lamon Gasket Co., a case that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract.

Dana was part of a series of rulings issued in the closing weeks of then Chairman Battista's term.  Many of these decisions split as 3-2 votes, and modified existing Board law.  Each contained a strong dissent by current Chairman Liebman.  Dana and the others provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairman Liebman testified at one such hearing, and has reiterated her views consistently many times since.   Back in April 2010, after President Obama announced his nominees for the Board, we suggested that Dana would be among the first decisions of the prior Board revisited.

And so it has been.  Some fourteen amicus briefs have been filed, following Board invitation, by parties including the AFL-CIO, the U.S. Chamber of Commerce, Senator Orrin Hatch (R-UT), the National Association of Manufacturers (NAM), the SEIU, and Congressmen John Kline (R-MN) and Tom Price (R-GA).  The arguments for and against expressed in these briefs shape up essentially as one might expect from a referendum on the Employee Free Choice Act's card-check provisions.  Those in favor of preserving the Dana holding argue that it is the only way to ensure that employees have a free and fair opportunity to vote for or against union representation in a secret ballot election.  Those who would have Dana overturned, argue that the Board has long recognized the principle of voluntary recognition by other means and that the "open period" for decertification announced by Dana only creates delay in the bargaining process, serving to frustrate the will of the majority of employees.

Then-Member Liebman's dissent in Dana provides a clear indication of where this Board is likely to go in Lamon Gasket:

The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

What will be more interesting and important to watch is the political fall-out of the Board's reinforcement of voluntary recognition, and what impact that will have on the labor law debate over the role of the secret ballot.  Stay tuned...

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Last week, amid a flurry of late-session proposals, Rep. Brad Sherman (D-CA) introduced H.R. 6384, "To repeal a limitation in the Labor-Management Relations Act regarding requirement of labor organization membership as a condition of employment."  Put more simply, the bill would nullify the right of states to enforce "right to work" statutes. 

The 1947 Taft-Hartley amendments to the National Labor Relations Act added subsection 14(b), allowing states to pass these "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Rep. Sherman's bill is unavailable at the GPO at this time, but he introduced a similar bill in the 110th Congress.  H.R. 6477, introduced in July 2008, states only:

Section 14(b) of the Labor Management Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b). 

We might safely assume that H.R. 6384 will be similarly pithy.  Regarding the introduction of this measure, the Congressman issued a statement including the following explanation:

“I do not believe that there should be a right to be treated unfairly or to endure unnecessary restrictions. Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

At the time of this posting, there were 17 Democrat co-sponsors of Rep. Sherman's bill -- up from 8 co-sponsors for his 2008 effort.

More commentary:

• "BREAKING: Democrat Introduces Legislation to End Right-To-Work States" -- LaborUnionReport at RedState.com
  
• "U.S. House Representatives Attempting to Repeal Right to Work Laws" -- National Right to Work Committee
• "Right to Work for Less" -- AFL-CIO Legislative Action Center

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NLRB Acting General Counsel Lafe Solomon has announced an initiative to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign. According to the announcement:

…in all cases found meritorious the General Counsel’s office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. In addition, new timelines and procedures have been created to speed up the process.

In a General Counsel Memorandum released along with his announcement, Mr. Solomon explains his motivation for this decision thus:

An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it “nips in the bud” all of the employees’ efforts to engage in the core Section 7 right to self-organization.

Under Section 10(j) of the Act, the Board is authorized to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation. The guidelines promulgated under this new initiative direct the Regional Offices to identify potential Section 10(j) organizing campaign discharge cases “as soon as possible after the filing of the charge” and establish coding instructions to facilitate the Board’s tracking of such cases. Pursuant to the “optimal timeline” set forth in the guidelines:

• Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases.
• Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
• If charging party’s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue be submitted to the Regional Office within 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge.
• A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.

NLRB Chairman Wilma Liebman said in a statement that the Board has also revisited its procedures for requests to pursue injunctive relief: “The Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.”

This is the latest in a series of developments expanding or seeking to expand the Board’s use of injunctive relief. Last month, we highlighted a preliminary injunction issued by a federal court in California requiring a bottler to recognize and bargain with the Teamsters pending resolution of unfair labor practice charges. In that blog post we also noted

Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases. Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

With Mr. Solomon’s announcement, it appears that the current Board will indeed be more aggressive in this regard in a wider variety of “nip-in-bud” cases.

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Today's National Law Journal carries a piece by yours truly regarding the potential labor law implications of the growth of social media use in the workplace.  Many astute observers have written on the intersection of social media with employment and privacy law.  Today's NLJ piece focuses on traditional labor law principles:

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

You can read the entire piece here.

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Workplace Prof Blog today highlights a piece by professor/blogger Paul Secunda in CCH Employment Law Daily regarding a state “captive audience speech law.”  While these bills have been proposed in various states, the particular object of Professor Secunda’s presdcritique is 2009 Wisconsin Act 290, enacted on May 12, 2010.  The Act amended Wisconsin’s employment discrimination laws to add protections against discrimination on the basis of an employee’s

…declining to attend a meeting or to participate in any communication about religious matters or political matters.

Earlier this month, the Metropolitan Milwaukee Chamber of Commerce filed suit in federal court seeking to have the law declared unconstitutional.  According to his blog’s excerpt of the CCH piece, Professor Secunda believes the law should be upheld:

A finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship….”   Indeed, a number of well-known exceptions exist to the Machinists preemption doctrine, in the area of state police powers and the regulation of property rights. Under this line of cases, traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption.

There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Consistent with Section 8(c) of the NLRA, employers can still inform employees of their views of unionization, but may not force employees into mandatory meetings to hear those views under Wisconsin’s Act 290.

We have previously identified arguments by proponents of labor law reform that the law should allow greater union access to private employer property, or to restrict employers' exclusive use to address union representation.  These state statutes and the attendant litigation are the current front lines of that debate.

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On Friday, August 20, 2010, a District Court Judge for the Eastern District of California issued a preliminary injunction pursuant to Section 10(j) of the National Labor Relations Act. The order, in Garcia v. Sacramento Coca-Cola Bottling Co., 2:10-cv-2176 (Damrell, U.S.D.J.), requires the employer to recognize and bargain with Teamsters Local 150 pending the outcome of refusal to bargain charges filed at Region 20 of the NLRB.

The employer is a soft drink distribution franchisee. For over forty years, the production and maintenance employees were represented by an “in-house” union, the SCCBE. The employer and SCCBE were parties to a collective-bargaining agreement in effect from November 1, 2009 through October 31, 2013.   During early 2010, new officers of the union helped facilitate an affiliation with Local 150, which was apparently approved at a union meeting.

Subsequently, a significant number of employees protested the affiliation – including by signing a “disaffiliation petition” presented to the employer. The employer refused to recognize Local 150 and refused to hear grievances filed by Local 150. Accordingly, the union filed unfair labor practice charges alleging violations of Section 8(a)(1) & (5) of the Act. The Region issued a Complaint against the employer on or about June 20, 2010, and proceeded to file a petition in the District Court seeking injunctive relief under Section 10(j) of the Act.

To obtain interim injunctive relief under Section 10(j), the Board must demonstrate that it is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. The Court’s decision to issue an injunction here applies this standard to the specific facts of the case before it – a mid-contract refusal to recognize a new union following an affiliation vote. But it restates a broad view of “irreparable harm” that future Courts might find equally applicable in “first contract” or organizing cases. Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases.   Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

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Earlier this week, the National Labor Relations Act celebrated its 75th anniversary.  Secretary of Labor Hilda Solis marked the occasion by calling for an expansion of collective bargaining in the Huffington Post:

Collective bargaining helped create our middle class. Working people were able to share in the gains of their productivity and labor and management together forged creative solutions to create the powerful engine of the American economy we all are proud of.

In order to rebuild the middle class today, we need to level the playing field for all working people and update our labor laws to fit the 21st century workplace. That's why the President and I support the Employee Free Choice Act - which would update the NLRA so workers can form unions if they choose to without fear or pressure. In addition, millions of workers are not covered by the NLRA including public sector workers, farm workers, domestic workers, and more - so other laws, like the Public Safety Cooperation Act would ensure that firefighters and other public servants have a voice on the job, too.

Some people say that given the state of the economy, we can't afford unions right now. They've got it backwards.

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Yesterday's BNA Daily Labor Report (subscription required) repeated a comment Senator Tom Harkin (D-IA) made this week on a liberal talk show regarding the Employee Free Choice Act's prospects:

Harkin told the Bill Press radio show that he is “still trying to maneuver” in an effort to get the necessary 60 votes to move the bill through the Senate.

 

“To those who think it's dead, I say think again,” Harkin said, adding “…a lot can happen before Election Day, or maybe in lame duck too.”

The piece then chronicles the Senator's past statements about the bill's fate, which BNA suggests tend to depend on the audience to which they are made:

Harkin made the comments about a week after telling the United Auto Workers that he would fight for the legislation “for as long as it takes” (114 DLR C-1, 6/16/10).

 

In May, however, Harkin acknowledged to a legal conference, where participants were largely against the bill, that he still does not have enough votes to pass the bill as written (92 DLR A-8, 5/14/10). Also, just days before that, he told the International Association of Machinists that he had “no higher priority” than getting EFCA signed into law (90 DLR A-7, 5/12/10).

It remains nearly impossible for EFCA in its current form to pass a Senate filibuster in the current Congress.  In a previous statement on the bill, Senator Harkin asserted that he had the 60 votes needed on an undisclosed alternative bill -- but that was prior to the passing of the late Sen. Ted Kennedy (D-MA) and his replacement in the Senate by Sen. Scott Brown (R-MA).  As partisan lines have been drawn sharper since then, it may be questionable whether even some modified version of the bill could pass between now and the next Congress.  

In the run-up to the 2010 midterm elections, however, EFCA is certain to keep labor law reform in the news.

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The United States Supreme Court today handed down its long-awaited decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.  The Court ruled that for 27 months, beginning in December 2007 and ending when President Obama's March 2010 recess appointments were sworn-in, Chairwoman Wilma Liebman and Member Peter Schaumber alone were not authorized to act on behalf of the Board.  This decision calls into question the status of some 600 decisions handed down by the "two-member Board" during this time.

The 5-4 decision describes its holding thus:

The first sentence of [29 U.S.C.] §3(b), the so-called delegation clause, authorizes the Board to delegate its powers only to a "group of three or more members." This clause is best read to require that the delegee group maintain a membership of three in order for the delegation to remain valid.

The majority opinion posits that ""had Congress intended to authorize two members to act on an ongoing basis, it could have used straightforward language."   Justice Stevens' opinion acknowledges the Board's "understandable desire to keep its doors open," and "the costs that delay imposes on ...litigants."  Still, the majority concluded that until Congress decides to amend the law, it's clear language requiring delegation "to no fewer than three members" must prevail. 

Justice Kennedy filed a dissent on behalf of four Justices, arguing:

...the objectives of the statute,which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Additional commentary:

• "Supreme Court rules two-member NLRB lacked authority to issue decisions" -- NLRB Press Release
• New Process Steel v. National Labor Relations Board -- SCOTUS Wiki
• "Supreme Court Rules on NLRB, Texting and Judicial Takings" -- The BLT
• "Supreme Court Rules NLRB Needs 3-Member Quorum for Rulings" -- ShopFloor.org
• "Supreme Court Ruling Wipes Out 600 NLRB Decisions" -- FireDogLake
• "NLRB Loses Two-Member Board Case (New Process Steel)" -- Workplace Prof Blog

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NMB agrees to delay implementation of Election Rule:  Two weeks ago, the National Mediation Board (NMB) announced a change in the way votes would be tallied in future union representation elections under the Railway Labor Act.  Last week, an association of airlines filed suit in federal court seeking injunctive relief against the implementation of the Rule.  At a status conference in court this week, the NMB agreed to hold implementation of the Rule at least until June 30, 2010.

Reid Public Safety Employee Amendment to Supplemental Withdrawn:  Tuesday, Senate Majority Leader Harry Reid (D-NV) proposed to attach the Public Safety Employer-Employee Cooperation Act of 2009 to the pending Emergency Appropriations Supplemental.  The Public Safety Employer-Employee Cooperation Act, introduced with bipartisan support earlier in the Congress by Sen. Judd Gregg (R-NH) would ensure the extension of collective-bargaining rights to public safety employees employed by all states and localities.   Senator Reid's move prompted CQ Today to predict that "the amendment would be considered 'non-germane' and would no longer be in order if the Senate votes Thursday in favor of Reid’s motion to limit debate on the bill."  Last night, the Amendment was indeed withdrawn and the Supplemental was passed 67 to 28.  The stand-alone version of the bargaining bill remains pending, however, in both the House and Senate.

NLRB Would Assert Jurisdiction Over New York Racino:   The Board this week issued an Advisory Opinion requested by the New York State Employment Relations Board (NYSERB) in Yonkers Racing Corp. d/b/a Empire City at Yonkers Raceway, 355 NLRB No. 35 (May 24, 2010).  From 1899 until 2008, the employer operated a horse racetrack in Yonkers, New York.  In 2008, like many other racetracks are doing nowadays, the employer opened a casino on its premises.  Two unions filed petitions with NYSERB seeking to represent particular units of employees.  They did so because traditionally the NLRB asserts jurisdiction over casinos which meet the appropriate commerce threshholds, but declines to assert jurisdiction over racetracks -- leaving the issues to state agency resolution.  NYSERB sought the Board's advice on the issue, and the Board held:

We agree with the Employer that, as a result of the changes resulting from the addition of its casino gambling operations, the enterprise is no longer primarily a racetrack, and that the Board’s policy of declining jurisdiction over racetracks no longer applies to it.  In two recent published cases, the Board considered combined casino and racetrack operations with histories similar to that of the Employer’s enterprise. In each case, the Board found that although the enterprise began life as a racetrack and added casino operations later, the revenue and employment generated by the casino so overshadowed those generated by the horseracing operations the enterprise was no longer “essentially a racetrack,” Prairie Meadows Racetrack & Casino, 324 NLRB 550, 551 (1997), and “the racetrack was dependent on the casino, not the other way around.” Delaware Park, 325 NLRB 156, 156 (1997). 

Racing employers accustomed to state agency jurisdiction in addressing labor relations matters should take note of these developments as they embark upon consideration of casino expansion.

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As we've reported at our sister blog, EFCA Report, the early results are in from yesterday's primary contests, and this morning's talking points focus on the general anti-incumbent trend.  But others, including NAM's ShopFloor.org, have also noted it was a "Tough Night for the Card Check Crowd."

Suffering a major primary defeat was a figure central to the long-winding evolution of the Employee Free Choice Act --  five-term Democrat-turned-Republican-turned-Democrat Senator Arlen Specter of Pennsylvania. 

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In our Weekend Round-Up this past weekend, we noted that the House Education and Labor Committee had held a hearing on April 30, 2010 in Berkeley, California for the expressed purpose of:

exploring the challenges in first contract labor negotiations by examining the difficulty of reaching a first contract agreement in negotiations between the University of California and its post-doctoral scholars’ union.

The prepared testimony of the witnesses was previously posted online.  Earlier today, the Committee made available an mp3 file of the hearing. 

While the Employee Free Choice Act itself was not an overt focus of the hearing -- NAM's ShopFloor.org blog pointed out "negotiations concerning state employees are governed by state labor laws, not the National Labor Relations Act" --  it cannot be lost on any that "Facilitating Initial Collective Bargaining Agreements" has long been one of the express goals of that proposed legislation.  We might reasonably expect some of the testimony from this hearing to be cited if and when the Congress takes up amending the NLRA again in the future in whatever form.

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The subscription-based BNA Daily Labor Report notes today that attorneys for the National Labor Relations Board and New Process Steel LP have submitted their supplemental briefs to the U.S. Supreme Court addressing the affect of the recent NLRB recess appointments on the pending case challenging the authority of a two-member Board to issue rulings. 

The case, New Process Steel v. NLRB, U.S., No. 08-1457, was argued before the Court on May 23, 2010, four days before President Obama made two recess appointments.  On April 16, 2010, the Court ordered supplemental briefing on the impact of those recess appointments.

The NLRB's website has posted a special page for materials related to the case, but has not yet included the most recent filings.  SCOTUS Blog, however, has a summary of the arguments and links to the documents filed: 

Solicitor General Elena Kagan, in her new brief, laid out a potentially chaotic situation if the membership issue is not resolved.  Somewhere near 700 other cases have been decided by only two members, and the Board insists that it is entitled to have its rulings in those cases enforced in court.   Some 500 cases have not even been challenged in court yet, Kagan added.   And, she said, it is unclear — until the Court resolves the issue — whether the Board legally could re-ratify all of the previously decided cases in one grand order.

Moreover, both Kagan and the lawyers for New Process Steel noted the difficulties the Board has had in achieving full membership in recent years, and suggested that it might resort to two-member decisions in the future if that situation arises again.

Whether the Court agrees with the lawyers that the case remains a live controversy is unclear at this point, but that seems very likely to be its reaction.  A case argued as recently as late March, however, is not likely to be decided for several more weeks.  With the completion of oral arguments in pending cases, as of Wednesday, the Court will then begin a push to decide all of the remaining argued cases before recessing for the summer in late June or early July.

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For approximately twenty-eight months, beginning in December 2007, only two of the five seats on the National Labor Relations Board were filled.  On March 23, 2010, the United States Supreme Court heard oral argument in New Process Steel v. National Labor Relations Board, Case 08-1547, regarding the issue of whether the Board could so function.  Subsequently, on March 27, 2010, President Obama filled two of the vacancies with the recess appointments of Craig Becker and Mark Gaston Pearce.

Today, for the first time in over two years, a three-member panel of the National Labor Relations Board issued a decision.  Chairwoman Liebman, Member Schaumber and Member Pearce issued a unanimous Decision and Determination of Dispute in the matter of Electrical Workers Local 71 (Capital Electric Line Builders, Inc.), 355 NLRB No. 24 (April 16, 2010).  In the case, the Board found that there was a jurisdictional dispute, within the meaning of Section 10(k) of the National Labor Relations Act, between IBEW Local 71 and Laborers Local 534, arising out of work in Butler County, Ohio.  Applying fairly settled standards, the Board awarded the work in dispute to the IBEW.

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