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

5th Circuit Nixes Board Ruling: Daniel Wilson of Law360 ($$) writes that this past Monday, the 5th Circuit Court of Appeals reversed a National Labor Relations Board decision that had held that a trade group had unlawfully discriminated against union members. The 2-1 decision by the 5th Circuit explicitly held that the Board's decision violated due process because the Board changed its theory of liability at the appeals stage.

By facing a wider theory of liability than it had reasonably expected, involving different standards of proof than the theory it had prepared to defend against, IECH had been placed in a “no-win” situation, the panel majority ruled.

A short dissent noted that the trade group had waived its defenses by not seeking reconsideration of the Board's decision. Neither party immediately responded to requests for comment.

CWA to Launch Attack Ads on Cablevision: Laura Kusisto of the Wall Street Journal reports that starting tonight, the Communications Workers of America (CWA) is planning to kick off a massive public relations campaign in newspaper and television ads in support of its workers' dispute with Cablevision. Interestingly, the dispute has garnered a great deal of attention from New York City's mayoral candidates, with most major Democratic candidates rallying around the union.

The dispute began not long after Cablevision workers voted to unionize in early 2012. This past winter, 22 workers lost their jobs when they attempted to strike. However, a Cablevision spokesman noted in a short statement that all of the terminated strikers have been rehired.

This dispute is already ugly and is getting louder very quickly. We will certainly keep you posted as the parties work through their issues.

Kansas Teachers Vote to Decertify: James Sherk and Michael Cirrotti of The Foundry report that teachers in Deerfield, Kansas have voted to no longer be represented by the Kansas National Education Association (KNEA) for the purpose of collective representation. The teachers had to cut through a lot of red tape in order to even hold a decertification vote, but they believe it was worth it.

 “The desire is for teachers to participate at the [bargaining] table, to have free access to information,” [a leader of the decertification campaign] said. “In our little school district, there’s no reason we can’t sit down at the table and work out our issues.”

A spokesperson for the National Education Association did not comment for the story. This story is noteworthy primarily because public-sector teachers rarely attempt to decertify. Despite middling levels of discontent regarding public-sector unions in general, this decertification vote most likely does not signal the start of a trend. However, we will certainly be watching this issue and will keep you posted.

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Earlier today, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court decision invalidating the National Labor Relations Board's August 2011 rule which would require most private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act.  In so doing, the 4th Circuit joins the D.C. Circuit which had earlier struck down the rule.  Today's decision in Chamber of Commerce et al. v. National Labor Relations Board et al., No. 12-1757 (4th Cir. June 14, 2013), however, went further than the earlier decisions, asserting express limitations on the authority of the Board.

The rule, announced by the Board two years ago, required employers 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...

Failure to post the notice would be an unfair labor practice under Section 8(a)(1) of the NLRA. The Board also intended failure to post the notice to the toll the six-month statute of limitations for unfair labor practice charges.  Shortly after the rule was promulgated, employer groups filed suit challenging it, and the Board postponed implementation. In March 2012, the D.C. 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. Weeks later, the South Carolina District Court ruled that the Board did not have the authority to issue the notice-posting rule.  Earlier this year, the D.C. appeals court vacated the rule, finding it violated employers' free speech under Section 8(c) of the National Labor Relations Act, and violated the Act's limitations period in Section 10(b).

In today's decision, the Court did not address those arguments, instead simply holding that Congress never intended to allow this kind of proactive rulemaking by the Board:

...the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition.

The Court noted that a number of other federal labor statutes compel posting of employee notices like the Board tried to implement here. The critical distinction, however, is that these statutes -- including the Railway Labor Act, Title VII of the Civil Rights Act of 1964, the Occupational Health and Safety Act, Americans with Disabilities Act, and Family and Medical Leave Act, among others -- contain explicit statutory provisions allowing therefor.

Given the current political controversy swirling about the Board, and its current status and composition, it is questionable whether any official action will be taken with respect to the rule any time soon.  Unless we hear otherwise, employers should presume, at the very least, the Board's self-imposed stay of implementation will remain in effect.

More coverage and commentary:

• "Pro-Union Poster Rule Rejected by Second Appeals Court" -- Bloomberg BusinessWeek
• "Fourth Circuit Strikes NLRB Poster Rule" -- BLT: Blog of Legal Times
• National Chamber Litigation Center (NCLC) case page

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 Board Holds That PLU Faculty Can Unionize: Gabriel Spitzer of NPR reports that the National Labor Relations Board recently ruled that adjunct faculty at Pacific Lutheran University should be allowed to form a union. The Board's Northwest Region found that PLU faculty should be allowed to vote on unionization because PLU is not technically a religious institution since neither students nor faculty are subject to religious requirements. 

A PLU spokesman revealed that an appeal of the Region's decision was already in the works. Furthermore, the whole decision could get nixed because of the uncertainty surrounding the validity of the Board's decision-making in light of January's Noel Canning decision. We will certainly keep you posted as this matter moves forward. 

Labor Unions Pushing Hard for Immigration Reform: Kevin Liptak of CNN writes that the Service Employees International Union (SEIU) has purchased more than $1million in advertisements designed to help push Congress towards comprehensive immigration reform. The ads will air throughout the month of June. 

Initially, labor unions such as the SEIU were fighting tooth and nail with business organizations such as the Chamber of Commerce over the terms of the reform measures. However, there is a glimmer of hope that a bill could get passed now that the Chamber and Union leaders have reached an agreement over guest worker programs. We have been watching this legislation closely and will certainly keep you posted. 

SEIU Janitors Strike at Minneapolis Target: Dave Jamieson of the Huffington Post reports that contract janitors at Target stores in Minneapolis have voted to go on a two-day workers' strike. The striking janitors are primarily concerned with what they believe are substandard wages, but are also ostensibly protesting the termination of several employees over the last couple of months. A Target spokesman declined to comment, other than to state that Target does not employ the janitors. 

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IUOE Looking to Nix IN's Right To Work Law: Abigail Rubenstein of Law360 ($$) writes that last Friday, attorneys for the International Union of Operating Engineers (IUOE) argued that the Seventh Circuit should overturn dismissal of its lawsuit attempting to invalidate Indiana's new Right to Work law. The attorneys' main argument was that Indiana's law, which prevents labor unions from mandatorily collecting union dues, is preempted by federal labor law.

“The Indiana Right to Work law burdens union members and the union itself by requiring them to bear the full cost  of representing 'free riders,' which in turn diverts union resources away from voluntary First Amendment activity,” the brief said.

Neither side commented after argument, but the Governor's office is confident that the law will be upheld based on the lower court's dismissal of the IUOE's suit. We will certainly be watching this matter closely and will keep you posted with any developments.

Board Files Host of ULPs Against NJ Hospital: Susan Livio of the New Jersey Star-Ledger reports
that the National Labor Relations Board has filed a litany of unfair labor practice charges against Meadowlands Hospital in New Jersey. Among the more serious charges are that the hospital laid off 50 workers without regard to seniority and unilaterally implemented several major terms and conditions of employment.

"This complaint is an important recognition that the owners of Meadowlands Hospital have repeatedly and deliberately violated the rights and working conditions of healthcare workers, and it has cost employees millions in lost wages, unpaid medical claims and retirement pay," [a spokesman for the employees said.]

Neither the hospital nor a Board spokesperson could be reached for comment on the story. We will keep you informed as this matter is investigated and moves toward a resolution.

Union Alleges CTA Violating Seniority Rules: John Hilkevitch of the Chicago Tribune reports that members of the Amalgamated Transit Union (ATU) have begun protesting against what they believe are contract violations being committed by the Chicago Transit Authority (CTA). In particular, ATU has alleged that CTA has refused to honor the seniority provisions in the newly-signed contract between the parties, causing customer service employees to lose their preferred hours in some instances. The protests just began yesterday and are expected to continue throughout the week.

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Workforce Committee Not a Fan of DOL's Persuader Rule: Abigail Rubenstein of Law360 ($$) reports that last Thursday, the House Education and Workforce Committee sent a letter to the US Department of Labor providing that the DOL's proposed "Persuader Rule" should be withdrawn as it could negatively impact the attorney-client relationship. The Labor-Management Reporting and Disclosure Act (LMRDA) generally requires that employers report any efforts to directly or indirectly persuade employees to refrain from collectively organizing. However, there is currently a carve-out in the statute for general counseling and advice. The new regulations would limit this exception to oral and written recommendations, while other forms of "advice" would be subject to the disclosure requirements.

“The Obama administration is engaged in a campaign to silence employers on union matters,” [committee members] said in a joint statement after sending the letter.  “A part of that effort is the Labor Department’s attempt to rewrite the long-standing advice exemption.

The letter concludes with the committee asking the DOL to abandon the rule and stay with the status quo. We will certainly keep you posted on any developments.

Las-Vegas Teacher Files ULPs Against Union Director: Trevon Milliard of the Las Vegas Review- Journal reports that, in a case of "man bites dog," a Las Vegas teachers' union executive director is facing a National Labor Relations Board hearing after being accused of terminating a teacher from employment because she wanted to join a union. The teacher was fired at the end of her six-month probationary period, ostensibly for performance issues. However, during her term of employment, she repeatedly attempted to recruit a group of teachers to join the current teachers' union. The teacher is seeking backpay, reinstatement, and a promise from the executive director that she will be allowed to continue her organizing activities without any further interference. We will keep you posted as this case moves towards a hearing.

NY Car Wash Workers Strike in Protest Over Firing: Julie Turkewitz of the New York Times writes that this past Saturday, workers at Jomar Car Wash in Queens, NY walked off the job in protest after one of their fellow union members was fired after a confrontation with his employer. The employees had recently unionized and believe that the employee was fired merely for being one of the new union's principle organizers. New York's attorney general's office is currently looking into whether any state labor laws were broken. We will keep you posted as the investigation moves forward.

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Cal High Court Orders LA to Turn Over Info to SEIU: Beth Winegarner of Law360 ($$) writes that yesterday, the California State Supreme Court ruled that a public-sector union's duty of fair representation trumps an individual employee's right to privacy regarding their contact information. The court found that case law concerning labor relations favors disclosure of information in most instances, unless there is a compelling reason that the information requested should remain private. As such, Los Angeles city officials must now turn over the names and contact information of its employees to the Service Employees International Union (SEIU).

“Because the union’s duty extends to all employees in the bargaining unit, regardless of union membership, the union must have the means of communicating with all employees on these important topics,” Justice Carol Corrigan wrote in the unanimous ruling. “In addition, a union must give nonmembers an opportunity to express their views on bargaining matters, even if these employees do not have a vote.”

In a statement, the union praised the decision as consistent with its duty to represent all employees, even those employees not currently a part of the union. A city official did not respond to a request for comment.

Board Finds Healthbridge in Contempt: Kristen Stoller of the New Haven Register writes that the National Labor Relations Board has found Healthbridge Management, LLC to be in contempt of court. Healthbridge had sought relief in bankruptcy court this past March. In that proceeding, a bankruptcy judge found that Healthbridge could temporarily impose unilateral changes to its employees' terms and conditions of employment. Unfortunately for Healthbridge, that ruling was in contravention of an injunction filed in late December that was designed to maintain the status quo while Healthbridge negotiated a newly collective-bargaining agreement with its employees.

The Board is seeking a $10,000 compliance penalty, as well as a daily fine of $500 for each day of noncompliance with the injunction. We will certainly keep you posted as this matter develops.

Chicago Newspaper Lays Off Photogs; Union Expected to File ULPs: USA Today reports that the Chicago Sun Times has laid off its entire photography staff. As a result of the mass layoffs, the Chicago Newspaper Guild, the union representing photographers at the Sun Times, plans to file unfair labor practice charges with the National Labor Relations Board. The substance of the charges is currently unclear; all we know right now is that the parties have been in contract negotiations for months with little success. We will certainly keep you posted as this story moves forward.

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NY Appeals Court Pushes Back on Bloomberg's Union Pay Cut Plans: Pete Brush of Law360 ($$) writes that on Tuesday, New York City's First Department held that an executive order issued by Mayor Michael Bloomberg cutting union pay and benefits for city workers was illegal. The workers had protested that the cuts, made last year, were effectuated without providing notice or gaining consent from the union.

The city issued the rules "without complying with the procedures mandated by Civil Service Law § 20, i.e., notice, a public hearing, and approval by the State Civil Service Commission, which are applicable to those rules," the appellate panel said.

The order had never actually even gone into effect because the union won a restraining order against the cuts soon after Mayor Bloomberg announced them. As of now, it is unclear whether the City will appeal the 1st Department's ruling. We will certainly keep you posted.

Fast-Food Walkouts Hit Seattle: Josh Eidelson of The Nation writes that the fast food industry in Seattle is experience what New York, Milwaukee, Chicago, and other major U.S. cities have also dealt with in the last couple of months: a concerted, city-wide walkout. Workers at fast food restaurants across the city walked off the job yesterday morning in order to raise awareness of what they believe to be substandard employee wages.

The employees are demanding a pay raise to $15 per hour and are further expressing their desire to unionize without employer interference. This is certainly not the end of the "Fight for 15," as the protests have colloquially been labeled. We will certainly keep you posted.

Congress Hotel Strike Ends: WGNTV.com reports that late last night management officials at the Congress Hotel in Chicago, IL received word that its striking employees had  agreed to come back to work. The strikers had been off the job since 2002, making the Congress Hotel strike the longest in American history. As of now, the returning employees will work under the conditions set out in their last contract, which expired in 2002. This is a breaking story, so there will likely be further developments. We will make sure to keep you informed.

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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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Board Seeks Injunction to Force Hospital Back to Bargaining Table: R.J. Ignelzi of the San Diego Union-Tribune reports that the National Labor Relations Board will be heading to federal court to seek an injunction that would force Fallbrook Hospital back to the bargaining table. Fallbrook has been negotiating with its nurses off and on since the nurses voted to be represented by the California Nurses Association last year.

In a 24-page decision outlining Fallbrook's failings, an Administrative Law Judge found that Fallbrook had engaged in a pattern of "intransigence" with regards to CBA negotiations. Moreover, the ALJ also held that Fallbrook had illegally fired several nurses without first negotiating with the union. We will keep you posted as this injunction action moves through the legal process.

AFSCME Patient-Care Workers Set to Strike: ABC10News reports that as of this morning thousands of patient care technical workers at University of California hospitals are set to walk off the job in a concerted push for a new contract. The employees, represented by the American Federation of State, County and Municipal Employees (AFSCME), plan to return to work on Thursday after two days of protests.

The hospital, in a short statement, expressed regret that the employees would be going on strike, particularly due to the effect it would have on patient care. We will keep you updated with any further developments.

Childcare Union Bill Set for Governor Dayton's Signature: Megan Boldt of the Pioneer Press reports that, after two days of tense and emotional debate, a bill that would allow Minnesota childcare providers and personal care attendants to unionize passed the House and is headed to the Governor's desk for a signature. The bill passed the House by a 68-66 vote and had earlier passed in the Senate by a 35-32 margin.

The bill received strong opposition from Republicans in both the House and Senate, while Democrats overwhelmingly supported the legislation. Once Governor Dayton signs the bill, which is expected before the end of the week, expect both the SEIU and AFSCME to descend upon the State in order to begin organizing efforts. We will certainly keep you posted.

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Board Chair: We Have a Duty to Keep Working: Ben James of Law360 ($$) reports that yesterday, the Senate Health, Education, Labor and Pensions Committee (HELP) held a hearing concerning pending nominations to the National Labor Relations Board. Senator Tom Harkin (D-IA) stated that an executive committee meeting would be held on May 22 in order to determine whether the nominees should be sent to the full Senate for a confirmation vote. Chair Mark Gaston Pearce lamented that, in the interim, the Board owes the public a duty to keep working.

"Historically, the NLRB has functioned in the wake of constitutional challenges," he said. "We were born of controversy. In 1935 through 1937, our legitimacy was challenged in the courts. We continued to function, and when the Supreme Court finally decided the issue, we still had managed to serve the public. But most importantly, we owe it to the public to continue to work."

The Board's legitimacy is under attack from several angles, with some Senators and House Members attempting to introduce legislation to shut the Board down until a full quorum has been validly appointed. Further, the 3rd Circuit ruled yesterday that President Obama's recess appointments were constitutionally-invalid, joining the D.C. Circuit in finding that the Board did not have a quorum to act for quite some time. We will keep you posted as the nomination process moves towards a confirmation vote.

Right to Work Foundation Lobs ULP Allegations: Chris Sikich of the Indianapolis Star writes that the National Right to Work Foundation has filed unfair labor practice charges against Domtar Paper Co., alleging that the company has violated Indiana's "right to work" law by forcing employees to pay union dues. Under the law, nonunion members cannot be forced to pay union dues. However, the Right to Work Foundation believes that that is exactly what is happening at Domtar.

“Teamster union officials are extracting full union dues from workers who want to exercise their rights under Indiana’s popular new right to work law,” said Patrick Semmens, vice president of the National Right to Work Foundation, in a prepared statement. “This illegal action must stop.”

Domtar could not immediately be reached for comment. Indiana's law is relatively new and only affects contracts signed after March 14, 2012. We will keep you posted on these pending charges.

Board Certifies Georgetown Adjuncts Union: Penny Hung of the Georgetown Hoya reports that this past Monday, the National Labor Relations Board certified the Service Employees International Union as the official representative of adjunct faculty at Georgetown University. The faculty voted May 3 on whether or not to be represented by the SEIU, with a large majority voting in favor of unionization. The SEIU will now meet with university officials in order to negotiate a new contract for the newly-unionized adjuncts.

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UMW Student Protests Shut Down Palermo's Pizza: Milwaukee Business News reports that student sit-ins and protests concerning a Palermo's Pizza stand on campus at the University of Milwaukee-Wisconsin (UMW) have led to the stand's closure. This past Tuesday, about 40-50 students gathered outside the stand, yelling, "No justice, no pizza," in support of Palermo's workers, who the students believe have been treated unfairly by the pizza company. The students dispersed when a UMW official announced that the stand would be shut down.

Palermo's has been in the news a good deal recently, with the National Labor Relations Board clearing the company of all major charges on April 29 after a union representing workers at Palermo's had filed unfair labor practice charges against the company.

Board Settles ULP Charges With Trojan Labor: Bobby Allyn of the Tennessean writes that this past Monday, the National Labor Relations Board finalized a settlement with Trojan Labor. Trojan had been in hot water for the past few months after an employee filed unfair labor practice charges with the Board, alleging that Trojan had engaged in illegal surveillance by sending management officials to union organizing meetings.

The settlement document does not identify any individuals, nor does it state whether any illegal activity actually took place. Trojan will most likely remain in the news for the foreseeable future, particularly because its employees are also in the process of filing a federal suit for unpaid regular and overtime wages. We will certainly keep you posted.

Columbia Adjunct Professors on Verge of Striking: Kari Lydersen of In These Times reports that adjunct faculty at Columbia College in Chicago, Illinois are teetering on the edge of striking. While an authorization vote has yet to take place, informal polling among union members shows that between 80-90% of adjunct faculty would support such a strike. The adjuncts are hoping to avoid a strike, but are looking for a greater share of wages and benefits. The union president has taken the view that, if a strike is what gets the administration's attention, then the strike will have to go forward. We will keep you posted as to whether the adjuncts actually vote to authorize the strike.

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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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Board Reinstates Worker Fired Over Facebook Postings: Abigail Rubenstein of Law360 ($$) reports that last week, the National Labor Relations Board (NLRB) affirmed an Administrative Law Judge's decision to reinstate a New York City Tour Guide who was fired by his employer for posting about the company on Facebook. The employee, surprisingly, did not actually direct any of his Facebook postings to his fellow co-workers. Instead, the Board found that merely writing about his union organizing activity was enough to bring his postings under the protections of the National Labor Relations Act.

"In particular, we affirm the judge's finding that those communications constituted union activity, even if directed to tour guides of other New York City companies," the NLRB's decision said. "The Feb. 11 communications were an obvious continuation of Pflantzer's prior organizational activity, activity which was known to [New York Party Shuttle]."

The company had attempted to argue that the employee's postings could not be protected because they were libelous. However, the Board found that the employee's posts about checks bouncing were largely true. As such, his missives remained protected, even though they were not explicitly directed to his coworkers.

While the Board's view of social media is still evolving, this case represents a good lesson for employers. Firing an employee over a Facebook post could easily land a company in hot water with the current Board, who seem intent on protecting a wide swath of employee communications.

Teachers File ULP Charges After Lackawanna Declares Impasse: Steve McConnell of The Scranton Times-Tribune reports that Pennsylvania's largest teachers' union has filed unfair labor practice charges against Lackawanna College. The teachers' union, representing the college's faculty, has been at odds with the University ever since negotiations began over a new contract between the parties. Earlier this year, Lackawanna declared impasse after more than two years of negotiations and imposed its last best offer on the faculty.

The contract imposed upon the faculty guarantees full health care benefits for teachers and their families for the first two years of the new contract. However, employees would have to pay increased premiums in the remaining three years. We will certainly keep you posted as this matter moves forward.

Patriot Coal Employees Threaten to Strike: The JD Journal reports that an attorney for workers at Patriot Coal were prepared to go on strike if Patriot Coal cannot agree on a new contract with the union representing the employees. Patriot Coal, currently in Bankruptcy proceedings, has been attempting to void its contract with the United Mine Workers of America in order to make cost-saving labor cuts. The CEO of Patriot Coal called the attorney's comments "ill conceived." 

“It’s a poor time to be throwing out threats,” referring to the comments of the union’s attorney.

Patriot has been attempting to cease pension contributions as well, but has proposed to give the union a 35% equity stake in the company. We will keep you posted as bankruptcy proceedings move forward.

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Board ALJ Slams Western Refining for ULPs: Ben James of Law360 ($$) writes that yesterday, a National Labor Relations Board Administrative Law Judge (ALJ) ruled that Western Refining Inc. had violated the National Labor Relations Act (NLRA or the Act) by maintaining a "widespread and flagrant" anti-union campaign. The ALJ found that Western began violating the Act as soon as management officials got word of its employees' intent to begin organizing.

“Here, as soon as respondent learned that its employees were once again embarking upon union organizing efforts, it commenced a widespread and flagrant campaign designed to derail those efforts. Respondent interrogated its employees at numerous terminals in New Mexico and Texas about their union activities, threatened numerous employees with discipline if they talked about the union with fellow employees at work, while at the same time it permitted hired labor consultants and anti-union employees to solicit petitions against the union,” the decision said.

The ALJ also ruled that, since the violations were numerous and serious, a company official would have to read the notice accompanying the decision aloud to Western's employees. Neither party commented for the story.

ILWU, United Grain Square Off at Port of Vancouver: Aaron Corvin of the Columbian reports the International Longshore and Warehouse Union (ILWU) has begun lobbing unfair labor practice charges against United Grain. The dockworkers, represented by the ILWU and employed at the Port of Vancouver in Washington State, allege that several union members were illegally fired for refusing to operate a piece of equipment they believed to be unsafe.

The two sides have been engaged in a heated battle since United Grain locked out 44 ILWU workers in the middle of contract negotiations. With United Grain now employing replacement workers, tensions are not expected to lessen anytime soon. We will keep you posted with regards to the ULP charges and the continuing contract negotiations.

SEIU Victorious at Kaiser: Chad Terhune of the Los Angeles Times reports that last night, the Service Employees International Union (SEIU) United Healthcare Workers West won an election to become the exclusive bargaining representative for Kaiser Permanente employees in California. Interestingly, the SEIU had to fend off a serious challenge from the National Union of Healthcare Workers in order to be chosen as the Kaiser employees' representative. SEIU now represents approximately 45,000 employees at Kaiser, which an SEIU official characterized as the largest private-sector election since a Ford Motor Co. election in 1941.

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Board Orders Re-Vote in Target Union Election: Ben James of Law360 ($$) reports that yesterday, the National Labor Relations Board upheld an Administrative Law Judge's decision finding that a union election at a Target Store in Long Island, New York should be re-held. Target employees had voted in June of 2011 as to whether to be represented by the United Food and Commercial Workers Union (UFCW) for the purpose of collective-bargaining. The UFCW lost that election, but the ALJ held that the maintenance of unlawful rules in Target's employee handbook compelled a re-vote. While the Board agreed with the ALJ's conclusion, its decision further held that a re-vote was necessary due to a myriad of unfair labor practices that occurred during the organizing campaign.

“However, we additionally rely on the other ... violations the respondent committed during the critical period — including a coercive interrogation, a threat of unspecified reprisals and the distribution to employees of a leaflet that unlawfully implied a threat to close the store if employees selected the union — in reaching our conclusion that the election must be set aside and a second election directed,” the NLRB said.

Interestingly, the Board struck down a portion of the ALJ's decision that found that Target's parking lot policy was unlawful. The parking lot policy provided that employees should report unknown parking lot loiterers to their supervisors. The Board held that there was no evidence that the policy did not explicitly restrict protected activity, nor was it promulgated in response to union activity.

Pomona Dining Staff Join Unite Here!: Beau Yarbrough of the Inland Valley Daily Bulletin writes that dining hall workers at Pomona College in Pomona, CA have voted to be represented by Unite Here! for the purpose of collective-bargaining. The workers voted 57 to 26 in favor of representation, with the vote being overseen by representatives of the National Labor Relations Board.

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PLU Adjunct Faculty Looking to Unionize: Gabriel Spitzer of NPR writes that adjunct professors and faculty at Pacific Lutheran University are seeking to be represented by the Service Employees Industrial Union (SEIU) for the purpose of collective-bargaining. While adjunct faculty teach approximately a third of the courses offered at PLU, they are paid significantly less than their tenure-track colleagues. Not surprisingly, the university is pushing back, arguing that it falls outside of the jurisdiction of the National Labor Relations Board because it is a religiously-affiliated university.

“It’s our responsibility to defend our first amendment rights, and I think it would be irresponsible not to challenge jurisdiction on that point,” [PLU Provost Steve Starkovich] said.

The Board has traditionally asserted its jurisdiction over religiously-affiliated groups, like PLU, that are not explicitly centered around the exercise of religion. However, the final decision rests with the current Board, which is on shaky legal ground as it is. It remains to be seen whether a Constitutionally-suspect NLRB will have the stomach for what could be a protracted battle in Federal court. We will certainly keep you posted.

Board Sides with Unite Here! Against Sheraton: Chris Klint of KTUU.com reports that the National Labor Relations Board has affirmed an Administrative Law Judge's decision holding that the Sheraton Anchorage Hotel in Anchorage, Alaska committed a host of unfair labor practices in a long-running dispute with Unite Here! and its employees over their ability to form a union. In particular, the Board found that Sheraton made several unilateral changes to employees' terms and conditions of employment. The Board further held that Sheraton improperly disciplined nine employees for showing support for the union. While a Sheraton representative declined comment for the story, a spokesperson for Unite Here! expressed his satisfaction with the ruling, but also noted that the struggle for workers' rights at Sheraton was far from over.

New Hostess Owners Back Away from Anti-Union Comments: Sean Higgins of the Washington Examiner writes that the new owners of Hostess have issued a press release stating that the company would not discriminate against job applicants on the basis of their union membership. The press release comes in response to comments made last week by Hostess' CEO Dean Metropoulos, who stated that the company would be moving forward without a union presence.The company's statement also provided that Hostess respects employees' Section 7 rights and will not interfere with NLRB processes.

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D.C. Circuit Overturns Flagstaff ULPs: Ben James of Law360 ($$) writes that last Friday, the D.C. Circuit Court of Appeals found that the National Labor Relations Board took an "interpretive leap" in holding that an executive's comments about negotiating with unions violated the National Labor Relations Act. The executive, who is employed by Flagstaff Medical Center in Arizona, stated that if his employees decided to unionize, then he would not be negotiating with them. The Board had ruled that the executive's comments amounted to an implicit threat from management that a union campaign would be futile. However, the D.C. Circuit vehemently disagreed, noting that the comment had been made during a discussion of the benefit of direct communication between employees and management.

“Considering this context, we are baffled by the board’s interpretation of Bradel’s subsequent first-person-singular statement about negotiations as a comment about Flagstaff’s threshold willingness to negotiate — rather than as a statement about his own attendance at whatever meetings occur,” the appeals court ruling said. “The record does not support this interpretive leap.”
 

The D.C. Circuit further explained in its ruling that employers are allowed to discuss the benefits and detriments of unionizing as long as there is no threat or promise of benefit involved. A Board spokesperson declined to comment for the story.

Board Clears Palermo Immigration Check: Karen Herzog of the Milwaukee Journal-Sentinel writes that the National Labor Relations Board has found that Palermo Villa, Inc. did not violate labor law by terminating 75 workers during an immigration audit last year. The Board further held that Palermo did not use the audit in order to retaliate against workers for their unionization efforts. Importantly, the Board's decision was the last major hurdle that needed to be cleared before employees could vote on whether to be represented by the Palermo Workers Union. We will keep you updated as to the vote's results.

MLS Referees Unionize: The Boston Herald carried an Associated Press story reporting that Major League Soccer (MLS) referees, linesmen, and fourth officials have voted overwhelmingly in favor of being represented by the Professional Soccer Referees Association (PSRA) for the purpose of collective-bargaining. A spokesperson for the PSRA said that the vote was 55-7 in favor of unionization, with 15 referees abstaining. As a result of the vote, the Professional Referee Organization (PRO), the entity in charge of staffing MLS games, will now be compelled to negotiate with the PSRA over match officials' terms and conditions of employment. 

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SEIU Targeting Colleges and Universities: Malika Sen of the College Times writes that the Service Employees Industrial Union (SEIU) is putting forth efforts to unionize adjunct professors across the country. Their current focus, however, seems to be on the Boston metro area. On April 13, Adjunct Action, an initiative of the SEIU, held a symposium on the benefits of unionizing that was attended by over 100 adjunct faculty from more than 20 schools in the area.

“The next step is forming organizing committees both on the campuses where adjunct faculty are most interested in moving forward and also across the metropolitan area,” [an SEIU spokesperson] said.

Interestingly, the SEIU has succeeded in bringing a unionization effort to a vote at Georgetown University. Ballots were mailed out to adjunct professors on April 12, with the National Labor Relations Board expected to tally the votes on May 3, 2013. We will certainly keep you posted as to the election's result.

Sanipac, Union Reach Agreement on New Contract: Jeff Wright of the Register-Guard reports that a majority of union-represented workers at Sanipac in Oregon have agreed to a new contract with the company, averting a possible strike. The contract lasts for four years and is retroactive to July 1 of last year. Sanipac had been preparing for the worst because Teamsters representatives had been intimating that a strike was being considered.

Both sides expressed relief that the negotiations ended successfully. Workers will receive a $2.00 raise over the life of the contract and will also receive increases in medical and pension benefits. Most importantly, there will not be an interruption in trash-hauling services for residents served by Sanipac.

Strongsville School Board Files ULP Charges Against Teachers: Cory Shaffer of the Cleveland Plain Dealer reports that the Strongsville, Ohio school board has accused the Strongsville Education Association (SEA), the union representing teachers in the long-running strike, of direct dealing in contravention of the Ohio Labor Code.

In the release school board President David Frazee said the charges go on to ask the State Employment Relations Board to order the SEA to cease and desist "from engaging in unlawful direct dealing and from interfering with the BOE’s selection of bargaining representatives."

A union spokesperson did not respond to a request for comment. The strike, now in its eighth week, shows no signs of abating anytime soon. Both sides have dug in their heels and have each filed multiple unfair labor practice charges against each other. We will certainly keep you updated as this situation is very fluid.
 

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Board Finds Facebook Posts to be Protected Activity: Abigail Rubenstein of Law360 ($$) writes that last Friday, the National Labor Relations Board affirmed an Administrative Law Judge's finding that Bettie Page Clothing in San Francisco, CA unlawfully terminated employees for criticizing store management on Facebook. The Board agreed with the ALJ in finding that the posts, related to the store closing earlier so that workers would not have to walk through unsafe neighborhoods, amounted to classic protected and concerted activity by the workers.

“The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” the board's decision said. “Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.”

The Board, as a remedial measure, ordered Bettie Page Clothing to reinstate the three employees who were fired for their Facebook postings, with all three employees also awarded backpay. In a statement, the company vowed to appeal the Board's ruling.

This case just represents another example of the Board's incredibly protective approach when it comes to social media. It seems that lately, Facebook has become the new "water-cooler." As such, employers must tread very carefully when dealing with any social media issues. Since this case is being appealed, we will be following it all the way through to a final decision.

Twinkie's New Owners Hoping to Avoid Union Labor: Rachel Feintzeig of the Wall Street Journal reports that Hostess Brands LLC-Metropoulos & Co. and Apollo Global Management LLC (Hostess) is making preparations to hire new workers and reopen Twinkie plants, but without the help of Union workers.

"We do not expect to be involved in the union going forward," Mr. Metropoulos said in an interview Wednesday.

The former iteration of Hostess, which just went through a Chapter 11 Bankruptcy, employed 15,000 union-represented workers once upon a time. However, the Bakery, Confectionery, Tobacco Workers & Grain Millers Union (BCTWGM) engaged in a devastating strike last year, sending the company into bankruptcy.

When reached for further comment, Mr. Metropoulos expressed confidence that Hostess would be able to find enough workers to fill its plants, particularly because the operations would be opening in areas of high unemployment. We will be watching these developments closely and will keep you updated.

Durham School Bus Drivers Vote to Strike: Chris Valdez of the Poughkeepsie Journal writes school bus employees in Durham, NC have voted to walk off the job and go on strike. The Teamsters Local 445 voted yesterday to renew the union's strike authorization, so the drivers could strike at any time now. The employees, without a contract since September of last year, have argued that they are underpaid and overworked. Management officials have offered raises, but so far, there has not been any significant progress in negotiations. We will keep you posted as this story develops.
 

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7th Circuit Chides Red Cross for Trying to Bust Union: Sindhu Sundar of Law360 ($$) writes that yesterday, the Seventh Circuit Court of Appeals found that the American Red Cross unlawfully changed employees' terms of employment. The changes in conditions were designed to harm the legitimacy of the newly-formed union, with the court further ruling that the Red Cross' changes actually did harm the union.

A three-judge panel partly affirmed a lower court's ruling in favor of a union of blood collection specialists that was elected in 2007 and certified in 2010, after the humanitarian group made a number of changes to the union employees’ employment terms without consulting the union, the order said. These changes included changing employees’ health insurance benefits, suspending their merit pay increases, and halting matching employer contributions to their 401(k) plans, among other things, according to the order.

The Red Cross' changes to employees' terms and conditions of employment led to a massive drop in union engagement, the court further found, with attendance at union meetings dropping almost 90% in a one-year period. Neither side was available to comment on the ruling.

"Fight for $15" Campaign to Hold Protest in Chicago: The Chicago Tribune reports that hundreds of fast food and retail workers throughout the city of Chicago are expected to walk off the job today in support of a campaign calling for higher wages for low-income workers. Known as the "Fight for $15" campaign, organizers stated that workers from McDonalds, Macy's, and Subway were expected to join in the protests.

"Fight for 15, seeks to put money back in the pockets of the 275,000 men and women who work hard in the city’s fast food and retail outlets, but still can’t afford basic necessities," the group said in a release. "If workers were paid more, they’d spend more, helping to get Chicago’s economy moving again."

The Fight for $15 organizers, not surprisingly, are also putting forth concerted efforts towards unionizing the city's retail and fast food workers. Interestingly, Chicago's strike comes mere weeks after a similar strike in New York City. We will certainly keep you posted as this story develops further.

Seattle Negotiations with Police Union Hits Roadblock: Steve Militch and Lynn Thompson of The Seattle Times report that negotiations between the city of Seattle and its police union have stalled because the city no longer wants to pay the salary and benefits of the police union's President. No other union head in Seattle is paid by the city, save for current Seattle Police Officers Guild' (SPOG)President Sergeant Rich O'Neil, who is making $125,000 per year, plus benefits. The city, in a statement, declined to comment on the pay issue.

“We have been diligently working to negotiate a contract with the Seattle Police Officers’ Guild that respects our budget situation and enables full implementation of our Settlement Agreement with the DOJ,” [a city spokesman provided] in a written statement.

The police officers have been working without a contract since 2010. Interestingly, the police officers are barred from striking, so their negotiating leverage is somewhat hindered. We will keep you updated as negotiations progress.
 

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Aztar Workers Keep Security Clause: Susan Orr of the Evansville Courier Press writes that employees at Casino Aztar in Evansville, Indiana have voted to retain the Union security clause in their collective bargaining agreement with their employer. Deleting the union security clause would have allowed reticent workers to continue to be represented by the union in collective bargaining, but without having to pay union dues.

The election's outcome means that Aztar employees will continue to be represented by the United Auto Workers, whether they like it or not, until the end of the current contract between the parties. The vote is expected to be certified by the National Labor Relations Board by the end of the month.

Garbage Haulers Support Strike Ends: Olivera Perkins of the Cleveland Plain Dealer reports that garbage haulers working for Republic Services in Northeast Ohio have called off their current support strike, which had been going on for all of last week. The haulers were refusing to collect refuse, purportedly because they were acting in solidarity with their striking brethren in Youngstown, OH. The strike affected thousands of homes throughout the Northeast part of the state, with replacement workers unable to cover the striking workers' routes.

"Out of respect for their communities and the customers they serve, our members chose to suspend the strike," Ken Hall, the union's international General Secretary-Treasurer, said in a news release. "I hope their act of good faith is matched by Republic's good faith at the bargaining table."

The company and the Teamsters have been at odds for some time now, with both sides filing unfair labor practices against each other with the Board. The major sticking point in contract negotiations continues to be whether or not the company will keep its employees on a pension plan. We will certainly keep you posted, as there well may be more support strikes before contract negotiations are concluded.

UC Employees Set to Vote on Whether to Walk Off the Job: Mia Shaw of the Daily Californian writes that workers at the University of California are set to vote at the end of the month on whether to authorize a workers' strike. The employees, represented by the American Federation of State, County and Municipal Employees (AFSCME), are attempting to raise awareness over patient-care issues at UC hospitals.

“UC administrators are asking frontline care providers to subsidize chronic understaffing, growing management bloat and unprecedented executive excess at UC’s taxpayer-supported teaching hospitals,” said Kathryn Lybarger, president of AFSCME 3299. “That’s something we simply will not do.”

The hospital employees have been working without a contract since September of last year. Negotiations have been slow, with little progress being made since the prior contract's expiration. The company dismissed the workers' concerns in a statement, providing that the strike vote was nothing but a bargaining chip. We will certainly keep you posted as to the results of the strike vote.

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Tribes, Board Spar Over Scope of NLRB Jurisdiction: Indian Country writes that several recent decisions of the National Labor Relations Board involving Native American Reservations have cast a spotlight on whether or not the NLRB 's jurisdiction really expands to cover conduct occurring on Tribal lands. Last week, the Board sanctioned the Saginaw Chippewa Indian Tribe of Michigan for prohibiting employees at two of its Casinos from discussing union organizing efforts. Also last week, the Little River Band of Ottawa Indians filed a complaint in Federal Court challenging the NLRB's assertion of jurisdiction over its employees.

 "It is well established under the law that an Indian tribe's exercise of inherent authority is protected from infringement by a federal agency or board under color of a federal statute absent a clear directive from Congress," Kaighn Smith, a lawyer for the Little River Band of Ottawa Indians, wrote in a brief to the NLRB.

This will not be the first or last time that the Board's jurisdiction over Indian Tribes is challenged. The Board regularly attempts to assert its authority over activities occurring on Reservations, particularly at Casinos, so it would be wise for employers on Reservations to be aware of Board policies and procedures so as not to run afoul of the National Labor Relations Act. 

Intrepid Potash Looking to Unionize: KOB.com reports that workers at Potash Intrepid in Carlsbad, NM are looking into forming a union for the purpose of collective bargaining. A United Steelworkers representative has issued a statement on the matter, providing that several employees at Potash reached out to the union, complaining of difficult working conditions and low pay. A company spokesperson said that while the company respects workers' rights, it does not see how involving a third party would help the two sides come together. We will keep you updated as this situation moves forward.

Boston Hotel Workers Bring ULP Charges: Christine Y. Cahill and Samuel Y. Weinstock of the Harvard Crimson write that last week, workers at DoubleTree Suites in Boston filed unfair labor practice charges against their employer, alleging that management officials have attempted to interfere in the unionization process. Most significantly, Unite Here!, the union hoping to represent the employees, asserts that DoubleTree retaliated against an organizer by cutting his hours. A spokesperson for the Hotel declined comment. We will certainly keep you posted as this charge moves towards a resolution. 

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Rivers Casino Workers File ULPs Against Management: AmyJo Brown of the Pittsburgh City Paper reports that workers at the Rivers Casino have filed thirty-eight separate unfair labor practice charges against management officials, alleging a coordinated effort aimed at preventing employee organizing. The employees have been attempting to organize 800 of the casino's almost 2,000 workers since early last week, when employees supportive of Unite Here brought a sheet-cake into the break room announcing the campaign.

Rivers Casino has been in hot water with the NLRB before. In 2011, the Board found that the casino's parent company had engaged in unlawful surveillance activity during a prior attempt to organize. We will keep you posted, as this is a very fluid situation.

Strongsville School Board Meeting Gets Testy: Cory Shaffer of the Cleveland Plain Dealer writes that yesterday, the Strongsville, OH school board held its first public meeting since the Strongsville teachers went on stroke almost six weeks ago. Interestingly, of the twenty members of the public allowed to speak during the hour-long meeting, the vast majority spoke favorably of the school board, with many of them openly ripping the Strongsville Education Association (SEA), which is the union supporting the striking teachers.

In a sign that the union is fracturing, a board member noted that 57 teachers are preparing to cross the picket lines in order to get back to teaching. Fortunately for all sides involved, a federal mediator is scheduled to sit down with the parties on April 21 in order to attempt to resolve the strike, which has affected about 6,000 students. We will keep you posted as new developments arise.

Patient Care Workers at UC Mulling Strike Authorization: Andrea Koskey of the San Francisco Examiner reports that over 13,000 workers employed by the University of California medical system are expected to vote later this month on whether or not to initiate a workers' strike. The employees have been working without a contract for the last ten months and have expressed a great deal of concern over recent layoffs of "front line" patient care workers.

“We’ve bargained in good faith and worked to secure a contract that puts patient safety first and honors the principle of basic fairness to the frontline care professionals at the foundation of the UC medical system,” union President Kathryn Lybarger said in a statement. “Instead of agreeing to these basic standards, UC administrators are asking frontline care providers to subsidize chronic understaffing, growing management bloat and unprecedented executive excess at UC’s taxpayer-supported teaching hospitals.”

In a statement, UC officials countered the union's contention, arguing that the focus on patient care is nothing more than a red herring. Instead, the union's main concern is the continuation of the employee pension plans. We will keep you posted on the results of the strike vote.

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SEIU and CareOne Facing Off in New Jersey: Colleen Diskin of NorthJersey.com writes that a full year after employees at a CareOne nursing home in New Milford, NJ voted to be represented by the Service Employees International Union (SEIU), management officials and the recently-minted union just can't seem to get along. There have been a myriad of unfair labor practice charges filed against CareOne by the union, including allegations of unilateral changes; intimidation; and unlawful interrogation.

Moreover, the union has begun to engage in some unsavory tactics, including running advertisements questioning CareOne's ability to tend to its patients. Currently, a recent unfair labor practice finding is being appealed by CareOne. We will keep you posted, as this dispute will surely not resolve itself amicably anytime soon.

Aztar Workers to Vote on Deauthorization Friday: Susan Orr of the Evansville Courier and Press reports that workers at Casino Aztar in Illinois will vote on whether employees will have the ability to withdraw from union membership before their current contract expires. If a majority of workers approve of the deauthorization vote, then individual employes can choose to no longer be represented by the United Auto Workers.

“The union has not represented me in any way since they came in here. I feel like I’ve paid dues for nothing,” [Gordon] Jones, [a casino worker,] said Wednesday.

Regardless of the outcome of the vote, the UAW will still be obligated to represent all employees in collective bargaining. We will keep you updated on the results of the deauthorization vote.

Garbage Hauler Prepared to Hire Strike Replacements: Josephine Woolington of the Register-Guard writes that Sanipac, a Glenwood, OH-based garbage hauling company, is prepared to hire strike replacements if drivers and mechanics at the company decide to walk off the job. Yesterday, union and management officials met for almost six hours in an attempt to strike a deal for a new contract. Workers at Sanipac have been working without a contract since last June. We will certainly keep you posted as this dispute moves towards a resolution.

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Gov. Christie Vetoes Sandy Project Labor Agreements Expansion: Joshua Alston of Law360 ($$) reports that yesterday, New Jersey Governor Chris Christie vetoed S2425, a bill that would have expanded the definition of "public works project" to include bridges, highways, and water treatment plants. Defining such structures as "public works" would have opened the bidding for reconstruction up to project labor agreements, which Gov. Christie believes would slow down the recovery and rebuilding processes.

“This bill would significantly alter public contracting in this state at a time when the swift reconstruction, rebuilding and redevelopment of public infrastructure is a priority,” Christie said.

The President of the Senate expressed his disappointment in the veto, saying that project labor agreements would bring new jobs into the state.

“This administration continues to see no problem with the recovery effort being led by out-of-state companies employing people not from New Jersey,” [Senate President Stephen] Sweeney said. “It simply lacks sense to not try and have as many people as possible from this state employed in rebuilding it."

At this point, there are no plans to tweak the bill for a new vote. However, we will keep you posted if things change.

More ULPs Filed Against Palermo's: Georgia Pabst of the Milwaukee Journal-Sentinel writes that a union representing workers at Palermo Villa, Inc. has filed unfair labor practice charges against the company, alleging that Palermo fired two workers in violation of the National Labor Relations Act. In related news, seven Milwaukee aldermen sent an open letter to the company yesterday, urging Palermo to meet with its employees in order to resolve a wage dispute that has now lasted for ten months. 

"We are concerned that the continuation of labor strife through lengthy legal processes, local and national boycott campaigns at supermarkets and campuses, and other activities are damaging to longtime and new employees alike, and will keep bringing negative publicity to Palermo's management and to our city as well," said the letter addressed to Palermo Villa.

Palermo did not respond substantively to the allegations, other than to issue a blanket denial. We will keep you posted as the investigation moves forward.

Teachers in North Pocono Set to Strike: Stacy Lange of WNEP16.com reports that teachers in North Pocono, PA have notified administrators that they plan to walk off the job this coming Thursday. Last night, the teachers' union rejected a last-minute proposal from administrators that would have averted the coming labor unrest.

While the teachers have been working without a contract since June, the strike notice comes as somewhat of a surprise because North Pocono teachers have never before walked the pickets. Apparently, the main sticking point in negotiations is out-of-pocket health care costs, an issue neither side plans to move on anytime soon. We will keep you posted as the situation develops.
 

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Strongsville Teachers' Strike Enters Seventh Week: The San Francisco Chronicle reports that the Strongsville, Ohio teachers' strike is now in its seventh full week and shows no signs of abating anytime soon. Negotiators for both sides met for about thirteen hours last night, with the session finishing in the wee hours of this morning without a resolution. The strike has involved almost 400 teachers and has impacted over six thousand students in the Ohio town. We will keep you posted with any updates to this story.

Workers at American Crystal Sugar Back on the Job: The Twin Cities Pioneer Press reports that workers at American Crystal Sugar plants are headed back to work in Minnesota, North Dakota, and Iowa after a 20-month long lockout. The workers, represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, voted to ratify a contract proposal that they had rejected on four prior occasions. Based in northern Minnesota, American Crystal is the country's largest sugar beet producer, employing some 2,800 growers.

UAW Hones in on Mercedes Plant in Alabama: Dawn Kent at Alabama.com writes that the United Auto Workers (UAW) has continued its recent trend of targeting southeastern auto plants for unionization campaigns by setting its sights on the Mercedes-Benz plant in Tuscaloosa County, Alabama. While it is hard to tell how much traction the UAW has gained thus far, it is clear that organizational efforts have been going on for about a year. Scholars fear that increased unionization efforts will give major companies pause before deciding to move down to the southeast.

"I don't think there's any doubt the reason that a lot of these automakers chose to operate in the South is they thought their chances were high that they could operate union-free," [said a Samford Law School professor]. "I suppose if one of the big automakers were to become unionized, that might dissuade companies from bringing more plants to the South."

Several unions have made plays at Mercedes in the past, with the UAW failing to succeed in an organizing campaign in 2007. We will certainly keep you posted.

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UAW Ups Ante at TN Volkswagen Plant: Dan Chapman of the Atlanta Journal-Constitution, in a story published by the Modesto Bee, writes that the United Auto Workers (UAW) are lobbying workers at a Volkswagen plant in Chattanooga, TN in the hopes of representing them in collective bargaining negotiations with management. Political officials have expressed varying levels of alarm at the UAW's efforts, with the Governor fearing that a unionized presence could "deter investment" from the state. Further, labor scholars have acknowledged that a unionized presence in the deep south could have a domino effect at other major operations.

"This is a game-changer. It is a very big deal that potentially begins to redefine labor-management relations," said Harley Shaiken, a professor at the University of California-Berkeley who specializes in labor issues.

As of now, all of the South's foreign auto plants are non-union. The UAW has already attempted to organize workers in both Mississippi and Tennessee and has failed at each attempt. We will keep you posted as this story moves forward.

NLRB Accuses Cablevision of Bargaining Violations: Steven Greenhouse of the New York Times reports that the National Labor Relations Board (NLRB) will be issuing unfair labor practice charges against Cablevision, alleging that the company has bargained in bad faith. The fight between Cablevision and workers represented by the Communications Workers of America (CWA) has been both loud and long, with workers engaging in protests and the company filing lawsuits.

The represented employees have been working without a contract since they voted to be represented by the CWA in bargaining negotiations some 15 months ago. Not surprisingly, Cablevision is contesting the Board's assertions that it has been negotiating in bad faith.

“We have a complete package of contract proposals on the table in front of the communications workers, and we are awaiting a response,” [stated a company spokesman.]

As of now, the case will proceed to an administrative hearing to determine whether the Board's charges hold water. We will keep you posted with any updates to this story.

UMass Nurses Give Leaders Strike Authorization: Boston.com reports that Nurses working at UMass Memorial Hospital have voted to give their union leaders the authority to call a one-day strike. The nurses, represented by the Massachusetts Nurses Association, are in the middle of negotiations with management over a new contract. The sticking points so far, namely staffing levels and benefits, have caused the negotiations to run for over a year now. A hospital spokesperson said that UMass Memorial was "disappointed" with the results of the strike authorization vote.

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Kellogg, Union Settle Plant Closure Suit: Ama Sarfo of Law360 ($$) writes that a Federal judge in Pennsylvania has approved a settlement between Kellogg Co. and the Teamsters, Local 926 over a plant closure in the state last year. The Teamsters had alleged that Kellogg had breached a "memorandum of understanding" between the parties, wherein Kellogg promised to provide the union with a business justification if Kellogg was forced to close the plant.

According to Local 926, “Kellogg expressed its interest in pursuing the transfer-station alternative if it was economically and operationally feasible.” And in the memorandum, Kellogg agreed to “strongly review the recommendation of the union” and “provide the union with the business rationale” if the satellite center was not viable, according to the complaint.

Neither party responded to requests for comment. Terms of the settlement were not immediately available, but the Judge said her order closing the case would not prevent future litigation if either party believed it to be necessary.

SEIU Files Board Charges Against UPMC: Alex Nixon of TribLive reports that the Service Employees International Union (SEIU) has filed unfair labor practice charges against the University of Pennsylvania Medical Center (UPMC). The charges assert that UPMC has been disciplining, harassing, and suspending workers for discussing union activity. Further, SEIU alleges that a union member who was recently fired by UPMC was supposed to be reinstated as the result of a recent out-of-court settlement between the parties. A spokeswoman for UPMC denied the charges, stating that UPMC would contest the SEIU's newest allegations with the National Labor Relations Board.

SPCO Players, Management On Cusp of Settling: Daniel Wakin of the New York Times reports that members of the St. Paul Chamber Orchestra (SPCO) have almost reached a tentative settlement with management that would end a labor strike that has caused concert cancellations since last October. At this point, the only remaining issues to be resolved at the negotiating table involve broadcasting and recording rights.

“We are excited to return to the stage as quickly as possible,” Carole Mason-Smith, the co-chair of the musicians’ negotiating committee, said. One difficulty in planning for a resumption of performances is that some orchestra members have taken up temporary jobs with other ensembles, Mr. West said.

Both sides heaped praise on St. Paul Mayor Chris Coleman, who had been prodding the parties to break their long impasse. Interestingly, the Twin Cities' other major orchestra is also embroiled in a labor dispute that shows no signs of abating. We will keep you posted on both stories as they move forward.

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Judge Slams NFL Retirees Trying to Block Settlement: Jonathan Randles of Law360($$) writes that yesterday, a District Court Judge sitting in Minnesota approved a settlement between the National Football League (NFL) and a group of former players over the NFL's use of the players' publicity rights. In the process, Judge Paul A. Magnuson also took time to chastise a splinter group of NFL retirees who had attempted to scupper the deal.

“It bears repeating: the individuals who originally brought this lawsuit and who now oppose the settlement rode into court on the banner of saving their downtrodden brethren, those who had played in the NFL yet today were penniless and, often, suffering from injuries or illnesses directly related to their playing days,” Judge Magnuson said. “It is the height of disingenuousness for these same plaintiffs to now complain, like children denied dessert, that the settlement does not benefit enough the individuals who brought the lawsuit.”

The settlement expressly provides that all funds must directly benefit former players and their families. Further, the agreed-upon terms mandate the creation of a licensing agency to market the retirees' publicity rights.

Investigation Over Port Sabotage Concludes: Emily Gillespie of The Columbian reports that police in Vancouver, Washington have concluded their investigation regarding allegations that a member of the International Longshore and Warehouse Union (ILWU) damaged $300,000 worth of equipment belonging to United Grain Corp. at the Port of Vancouver. The investigation has been sent to the District Attorney for review, who will make a decision as to whether to file charges in the next couple of weeks.

Tensions at the Port of Vancouver have been high since United Grain locked out ILWU-represented dockworkers at the end of February. Since then, union members have regularly picketed the Port. Police have been stationed near the picketers for weeks now in an attempt to maintain order.

In a sign that the labor strife is nowhere near ending, the ILWU recently filed unfair labor practice charges against United Grain, alleging that the company has engaged in surface bargaining. We will keep you posted as this situation unfolds.

NLRB to Pursue Action Against Cablevision: Steven Greenhouse of the New York Times writes that the National Labor Relations Board will be filing unfair labor practice charges against Cablevision. Yesterday, the Board alleged that Cablevision had made illegal threats and also offered illegal inducements to employees in order to keep the employees from unionizing. The Board further asserted that such actions effectively chilled the organizing effort to such an extent that workers felt compelled to vote against joining the Communications Workers of America (CWA).

Cablevision disputed the charges in a press release, stating specifically that the CWA was engaging in mudslinging. The case will now proceed to an Administrative Law Judge, who will then render a decision. We will keep you posted as this case moves forward.

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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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SEIU Sues Gov. Corbett Over Health Center Closures: Matt Fair of Law360 ($$) reports that the Service Employees Industrial Union (SEIU) has filed a lawsuit against Pennsylvania Governor Tom Corbett in an effort to stop the shuttering of 26 community health centers in the state. SEIU claims that the planned closures will cause at least 73 workers to lose their jobs, while another 20 nurses would be subject to furloughs.

“Neither the governor, acting [DOH] Secretary [Michael] Wolf, the DOH, nor any other executive branch official has the legal authority to close state health centers, reduce the current number of state health centers, or reduce the level and scope of public health services,” the complaint said.

A spokesperson for the Governors office was unavailable for comment. Interestingly, several PA state Senators have signed their names to the lawsuit as well, making this situation somewhat reminiscent of the Executive/Legislative showdown we saw in the Noel Canning decision in January. We will keep you posted as this lawsuit moves forward.

Union Members Sue IAMAW Over Fines: Alejandra Cancino of the Chicago Tribune reports that almost thirty workers have joined together to file charges with the National Labor Relations Board against their representative union, the International Association of Machinists and Aerospace Workers (IAMAW). The unfair labor practice charges allege that the union illegally fined the workers for crossing the pickets during a strike at Caterpillar, Inc. last summer. In a seemingly particularly egregious case, member Jon Butler is alleging that he was fined almost $15,000.00, despite only being paid a little less than $13.00 per hour.

"It made me lose more respect for the union," said Butler, 23, who returned to work almost three weeks after the strike began on May 1. "I could have stayed longer in the picket line and file for bankruptcy, but being young as I am I was not going to risk my wife's future over a contract like this."

A Union spokesperson was unavailable for comment. The workers, currently being represented by the National Right to Work Defense Fund, expect to file more charges against the Union in the coming weeks. We will certainly keep you posted.

Striking OH Teachers Start Fighting PR Battle: Cory Shaffer of the Cleveland Plain Dealer writes that striking teachers in Strongsville, Ohio have issued a press release arguing that their current salaries are nothing short of a "bargain" for Ohio taxpayers. The striking teachers, now off the job for the fifth week, stated that their salaries are the third-lowest out of ten schools in the region that received a rating of "Excellent with Distinction" from the Ohio Department of Education.

"The Strongsville teachers clearly go the extra mile for their students and give residents bang for their buck," said SEA President Tracy Linscott in the release. "The time has come to debunk the myth that Strongsville teachers are overpaid, when in fact the truth may be just the opposite."

Both sides are expected to meet this morning in an attempt to resolve their differences and get the strikers back to work. We have been following this story since the strike began and will certainly keep the updates coming.
 

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Ralph's Grocery Asks SCOTUS to Weigh in on Picketing Row: Abigail Rubenstein of Law360 ($$) reports that Ralph's Grocery Co. has asked the United States Supreme Court to overturn a decision of the Supreme Court of California allowing unions to picket on private property outside of its stores. The California Supreme Court recently ruled that a union's picketing activity on private property is protected by California state labor law.

“Businesses that are free to exclude all other speakers from their private property should not be forced to open their property to labor-related protesters who are there for no reason other than to drive away customers,” the petition said.

While an attorney for Ralph's was unavailable for comment, a union attorney expressed hope that the Supreme Court would deny Ralph's request for review.

“The First Amendment theory that Ralphs has argued didn't find any takers in the California Supreme Court,” [attorney Paul More] said. “It's a theory that doesn't have any basis in precedent, and we are confident that the Supreme Court will recognize that and won't be interested in this case.”

OH Garbage Collectors Strike Continues: The Ohio TribToday reports that over 100 commercial refuse haulers, mechanics and landfill workers went on strike last Thursday. The group has been operating without a contract since this past November. Management officials have accused the union of refusing to negotiate in good faith. Meanwhile, the union has also alleged that management officials have committed unfair labor practices during negotiations.

The sides last met on March 14. Currently, the parties are not expected to meet again until April 9. Both sides agree that retirement benefits are the major sticking point in negotiations.

Philadelphia U Security Guards File ULP Charges: Emma Jacobs of newsworks.com writes that security guards at Philadelphia University have filed unfair labor practice charges against their employer, alleging that the University has interfered with the guards' attempts to collectively organize. Last week, the guards staged a protest on campus demanding better pay and more regular hours. Currently, the Board is investigating the allegations, but has yet to issue a complaint. We will certainly keep you posted.

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Pilots' Group Throwing Wrench into Merger Plans: Jake Simpson of Law360 ($$) writes that a group of plaintiffs ostensibly representing former American West Airlines Inc. pilots has filed suit in an attempt to put a stop to the merger between AMR Corp. and US Airways Group Inc. The crux of the pilots' allegations is that the U.S. Airline Pilots Association (USAPA) has been refusing to implement and make use of the correct seniority list. The seniority list, stemming from an award by Arbitrator Nicolau (the "Nicolau Award") should take precedence over competing seniority lists, say the pilots.

"USAPA has never had an objectively legitimate purpose for repudiating its duty to order seniority according to the Nicolau Award," the plaintiffs said. "Indeed, there is strong legal authority to reject those reasons as a matter of law. It is highly likely that this litigation will result in judgment that USAPA has no objectively legitimate purpose for repudiating the Nicolau award."

An injunction against the merger would cause more problems for struggling AMR, which is currently in the middle of a court-assisted reorganization in New York under Chapter 11. We will keep you updated as this process moves towards a resolution.

Nurses, Deaconess Hospital Reach Settlement on ULP Charges: Jodi Hausen of the Bozeman Daily Chronicle reports that nurses at Bozeman Deaconess Hospital have settled their unfair labor practice allegations with their employer. Under the terms of the settlement, the hospital has agreed to bargain in good faith with the nurses' union. Furthermore, the Hospital has agreed to change several of its internal policies, and in particular will now allow union representatives to accompany nurses to any potentially-disciplinary meetings. The Montana Nurses Association, the union representing the local nurses' union, was pleased with the settlement.

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SEIU Gets to Keep Million-Dollar Award, Says 9th Circuit: Ciaran McEvoy of Law360 ($$) reports that yesterday, the Ninth Circuit Court of Appeals affirmed a $1.4million judgment against the National Union of Healthcare Workers (NUHW). The court held that NUHW leadership was guilty of siphoning funds from Service Employees International Union (SEIU) coffers.

“The [rival group's] officers disagreed, which they may do, and they voiced their opposition, which they also may do,” the court stated in its ruling in the SEIU's favor. “What they may not do under the law is use their union's resources to actively obstruct implementation of the final decision.”

The case arose because NUHW leadership formerly had been employed by the SEIU. However, the NUHW was created by dissident SEIU members after the SEIU decided to consolidate several major healthcare unions. An NUHW spokesperson was unavailable for comment at the time this story was published.

Georgetown Adjuncts Set For Union Vote: Soo Chae of Georgetown's Vox Populi reports that adjunct professors at Georgetown University have moved one step closer to unionizing. The SEIU recently filed a request for election with the National Labor Relations Board. The election will most likely take place in mid-April, with Georgetown pledging to remain neutral in the lead-up to the vote.

“For adjuncts across the country, average full time equivalent salary is $21,000 per year with usually no health insurance, no benefits, no retirement plans, no access to professional development unless people happen to be in unions,” Maria Maisto, Georgetown Alum and president of the New Faculty Majority, said in her opening remarks.

Interestingly, Georgetown's President has also released an open letter to the community, asking all adjunct faculty to vote. We will keep you posted as the election nears.

Walmart sues Unions over Protests: Jessica Whole of the Chicago Tribune reports that Walmart has filed a lawsuit in Florida State Court against the United Food and Commercial Workers (UFCW) and OUR Walmart, a union subsidiary comprised of current and former Walmart employees. The suit, according to a Walmart spokesperson, was designed to protect customers and employees from disruptive union tactics.

A UFCW spokesperson referred the Tribune to OUR Walmart for comment, who had this to say:

"This is another attempt on Wal-Mart's behalf of ... silencing their employees and also the communities that support them," Denise Diaz, executive director of Central Florida Jobs With Justice Corp and a defendant named in the suit, said before reviewing the documents.

Walmart has not ruled out filing further suits in other states. Last January, representatives from OUR Walmart pledged to stop most of their picketing activities. However, this latest play between the parties will surely heighten hostilities.

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Panera and Union Fight Over Appropriate Bargaining Unit: Ursula Zerilli of MLive.com writes that bakers represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers Union (the Union) have been locked in a battle with Panera Bread over whether Panera has a duty to bargain with the newly-formed union. The workers argue that the 17 employees currently being represented by the union constitute an appropriate bargaining unit, while Panera argues that all 45 local bakers should be included in the unit.

The National Labor Relations Board originally certified the 17 bakers as an appropriate unit in August, which the company has appealed. The case promises to drag on, mainly because of the D.C. Circuit's recent Noel Canning ruling, which has cast a great deal of uncertainty over the legality of the Board's decisions.

Pay Cuts Prompt New NYC Bus Driver Strike Threat: NY1 News reports that a new wage scale released by the companies employing New York City's school bus drivers includes an across-the-board 7.5% wage decrease beginning April 15 of this year. In response to the news, the union representing the bus drivers has stated that "all options are on the table," which could include another drivers' strike. 

"As always in private industry we do have the right to strike, it is one of the options, but we will explore again, as I had said previous to the last strike, we really try to do everything we can in our power to get the result that we need without having to impact anyone with a strike," said ATU 1181 President Michael Cordiello.

The last drivers' strike lasted a little over a month and threw school-aged families' lives into chaos as they scrambled to find alternate transportation for their children. We will keep you posted as this situation develops further.

Strongsville Teachers' Strike Continues: Cory Shaffer of the Cleveland Plain Dealer reports that the now month-old Strongsville, Ohio teachers' strike shows no signs of abating anytime soon. Last Friday, the union asked an Ohio court to intervene in the dispute, while the school board has filed unfair labor practice charges with the State Employment Relations Board.

The strikers have recently begun picketing businesses where the board members work, adding an extra level of hostility to an already tense atmosphere. The two sides are currently scheduled to meet tomorrow with a federal mediator to attempt to resolve their issues. We will certainly keep you posted.

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Board Issues Complaint Against Walmart Staffing Firms:  Josh Eidelson at The Nation reports that the National Labor Relations Board has issued a complaint against four separate companies who staff and manage Walmart's distribution center in Elwood, Illinois. The complaint alleges that the companies have repeatedly threatened and punished employees for attempting to organize. 

"They had targeted organizers ever since we got back to the warehouse," Philip Bailey, one of the fired workers, said Monday.

Walmart did not respond to requests for comment. We will keep you posted as this matter moves through the Board's processes.

US and Canadian Soccer Referees Looking to Organize: Buzz Carrick of the Dallas Morning News reports that soccer officials in the United States and Canada, through the Professional Soccer Referees Association (PSRA), have filed documentation with the National Labor Relations Board in order to vote on whether the referees desire to be collectively-represented. If the referees vote to be represented by the PSRA, Major League Soccer will be forced to negotiate with the PSRA over the referees' new terms and conditions of employment.

A date for the election is yet to be set, but sources say that the referees are enthusiastic about unionizing. We will keep you posted as more information is disclosed.

Nippon Paper Employees on Strike: Paul Gottlieb of The Peninsula Daily News reports that as of this morning, more than 100 employees at Nippon Paper have walked off the job in protest over stalled contract negotiations. The workers, represented by the Association of Western Pulp and Paper Workers, were also set to begin informational picketing in front of the Port Angeles paper mill. 

Contract talks have been going on for almost two years now, with Nippon recently imposing its "last best offer" on the employees. The union is hoping to reopen talks, with assistance from a federal mediator. We will be following this story as it develops further. 

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Solomon Says Social Media Focus Stays: Ben James of Law360 ($$) reports that yesterday, National Labor Relations Board Acting General Counsel Lafe Solomon made clear that the suspect constitutionality of the current Board will not affect his office's focus on employer social media policies. During a speech at Fordham University, Solomon also weighed in on January's famous Noel Canning ruling, which has cast uncertainty over the actions of the current Board.

“The government and I strongly believe that the D.C. Circuit's opinion is based on an incorrect analysis,” said Solomon.

Further, Solomon reiterated that the current NLRB is not "anti-business."

"We are totally cognizant of business interests,” Solomon said. “You just have to explain to us what your business interest is.”

Boston Nurses Okay Strike: Robert Weisman and Jessica Bartlett of the Boston Globe report that nurses at the Quincy Medical Center in Boston, MA have authorized a one-day strike in protest of the hospital's plan to lay off 30 nurses. The nurses, represented by the Massachusetts Nurses Association (MNA), are also concerned about the laying off of approximately 40 support staff.

“Our concern is not just the layoffs, it’s the closure of the floor,” [MNA Spokesman David] Schildmeier said. “The deal when they bought the hospital is that there was going to be no reduction of care.”

The nurses have also filed a complaint with the National Labor Relations Board against the hospital, alleging that the hospital is refusing to bargain over certain terms and conditions of employment.

AZ Union Enrollment at Lowest Level in 25 Years: Howard Fischer of the Arizona Daily Star writes that new figures released by the U.S. Bureau of Labor Statistics show that only 125,000 workers in Arizona currently belong to a union. That works out to approximately 5% of the total labor force, which amounts to the lowest level of union participation in 25 years. Rebekah Friend, a director at the AFL-CIO, expressed disappointment at the figures.

"We're not adding jobs that even provide a living wage," she said. "We're becoming the call-center capital, or the place where you come when you don't want to deal with a union."

Arizona is already a "right to work" state, so workers cannot be compelled to join a union as a condition of employment. With the economy still in disarray, it is not surprising to see union enrollment down as unemployed individuals look for any available opening.

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SEIU Strike Averted By Cooling-Off Period: LA Biz reports that the Service Employees International Union (SEIU) represented United Healthcare Workers West (UHW) and the Motion Picture Television Fund (MPTF) have agreed to a 60-day "cooling-off" period in order to avert a strike that was set to begin last night. Negotiations regarding a new collective bargaining agreement between the parties will continue in earnest during the break in hostilities.

Both sides expressed confidence that a deal could get done. However, last Friday the SEIU filed unfair labor practice charges with the National Labor Relations Board, alleging that the MPTF has refused to provide relevant information to the union. We will keep you posted as this spat moves towards a resolution.

AFGE Plans Wednesday Protest Against Sequestration Cuts: Josh Hicks of the Washington Post reports that the American Federation of Government Employees (AFGE), the nation's largest union of federal workers, is planning a national day of protest in response to last month's sequestration cuts. The sequester, which took effect March 1 of this year, will most likely cause government employees to take involuntary furloughs in response to the mandatory budget cuts.

"Sequestration has got to go,” AFGE president J. David Cox Sr. said in a statement. “If federal employees are furloughed without pay, if offices and plants are shut down, if vacancies aren’t filled because of these across-the-board budget cuts, then federal employees won’t be able to do the work that the American public expects them to do.”

The AFGE has organized approximately 100 different protests that are set to go off at noon tomorrow. We will keep you posted as the situation unfolds.

Unite Here and Hyatt Set to Spar Over Board Nominee: Samantha Bomkamp of the Chicago Tribune writes that Unite Here!, the union representing the majority of Hyatt Hotels employees, plans to hold a "nomination convention" in Chicago, IL on Wednesday. During the convention, a vote is expected to be taken that will place Cathy Youngblood, a Hyatt housekeeping employee, on the company's board of directors.

Hyatt and the union have been engaged in a years' long labor dispute. Despite the fact that Hyatt has reached agreements in several locations with its workers in recent days, Chicago's employees are still working under an expired collective bargaining agreement.

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Healthcare Workers Allege MPTF Bargained In Bad Faith: Dominic Patten of the Deadline reports that health care employees represented by the Service Employees International Union (SEIU) are planning to begin striking today in response to what they allege to be unfair labor practices committed by the Motion Picture and Television Fund's (MPTF) hospitals and facilities. Specifically, the SEIU alleges that MPTF bargained in bad faith, refused to provide relevant information to the union, and prematurely declared an impasse in negotiations.

MPTF declared impasse last week after two federal mediation sessions failed to produce an agreement between the parties. Through a spokesperson, the union said it was ready and willing to return to the bargaining table in order to produce a settlement "that is good for everyone." 

Judge Rules that Casino San Pablo Violated NLRA: Tom Lochner of the Contra Costa Times writes that a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) has found that the Casino San Pablo has committed a litany of unfair labor practices against union employees. In particular, the ALJ found that the  Casino bargained in bad faith, bullied union workers, and denied benefits to employees based on their union status.

The Casino has been ordered to reimburse workers for the denial of benefits and to post a statement pledging to cease and desist from engaging in union animus. A spokesperson for the Casino declined to comment for the story.

SEIU Employees Vote to Strike: RedState.com reports that employees of the Service Employees International Union (SEIU) have voted overwhelmingly to authorize a strike. The employees have been without a contract since last September, when their previous agreement expired. Interestingly, this isn't the first time that the SEIU has experienced a "man bites dog" sort of incident. In 2009, SEIU employees picketed headquarters after approximately a third of working staff were laid off.

While it is unknown whether the SEIU employees will actually strike, it is interesting to see that even labor unions have internal strife. We will certainly keep you posted as this situation unfolds.

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Lackawanna College Union Protests Claim of Impasse: Sarah Hofius Hall of the Scranton Times-Tribune writes that Lackawanna College has imposed its last best offer on the Professors' union, sparking ire among Lackawanna faculty members. The faculty has been working without a contract since June of 2011 and has been engaged in negotiations with administrators for almost two years.

"This approach does not reflect an effort stemming from a high-mindedness that we espouse as one of this great college's mission criteria," union leaders wrote in a letter to their membership. "It is the epitome of a cruel irony that such a strategy would be exercised by a few individuals given great access to power over Lackawanna's operation, and thus its future."

The union plans to take its complaint to the National Labor Relations Board, but has stressed that it is still willing to engage in good-faith negotiations with the college. Lackawanna administrators  declined to comment on the story.

Kansas Legislature Ponders Trimming Teachers Unions' Rights: Brad Cooper of the Kansas City Star reports that lawmakers in Kansas are in the process of debating several pieces of legislation that would have the effect of limiting the collective-bargaining rights of Kansas' Teachers Unions. Another bill being debated would bar teachers' unions from using voluntary paycheck deductions for political purposes.

“We are seeing a lot of things that appear to be a direct attack on teachers,” said Kansas National Education Association President Karen Godfrey.

Last weekend, more than 300 teachers and supporters showed up at a legislative forum in Wichita in order to protest Kansas' attempts to limit the teachers' bargaining rights. Furthermore, several school boards have come out against the law, saying it is not the right way to reform the educational system in Kansas. 

LA Mayoral Candidate Greul Gets Key Labor Backing: Seema Mehta of the Los Angeles Times reports that yesterday, Los Angeles Mayoral candidate Wendy Greuel accepted the endorsement of the Service Employees International Union, Local 721 (SEIU). The SEIU represents over 10,000 city workers and has become a powerful influence in city politics.

“I am so grateful to the workers who every single day provide the services to our residents. Let’s not demonize them, let’s not divide our city. Let’s support our city,” Greuel said, ... “Let’s support our workers, let’s support business and let’s support a brighter future because each of us can make a difference. It means the world to me to stand here today with all of you because you make us proud.”

The announcement occurred at SEIU headquarters in downtown LA, where workers surrounded Greuel and held signs saying, "Wendy for Mayor." The runoff election is set to take place on May 21, 2013, and is expected to be a very tight race.

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Longshoremen File ULP Charges Against United Grain: Erik Siemers of the Portland Business Journal reports that this past Monday the International Longshore and Warehouse Union (ILWU) filed unfair labor practices charge with the National Labor Relations Board against United Grain. The ILWU alleges that United Grain's lockout of ILWU Local 4 employees stems from union animus.

"This constituted loss of employment based on anti-union animus, and a sweeping unilateral change of terms and conditions of employment,” ILWU International President Robert McEllrath, a longshoremen based in Vancouver, said in a news release.

United Grain contends that it locked out Local 4 members in order to avoid further damage to its industrial equipment. United Grain has been negotiating with the ILWU over a new contract for months. In December, ILWU members overwhelmingly rejected United Grain's last offer, causing United Grain to implement the deal unilaterally.

Strongsville Students Protest Teachers' Strike: The San Francisco Chronicle carried an Associated Press article reporting that students affected by the Strongsville, Ohio teachers' strike have themselves began protesting outside of the local Board of Education offices. The students gathered together last night, with some stating that they did not feel safe with the current crop of replacement teachers. Others, however, expressed their displeasure over the high school principal's alleged warning to not post about the strike on social media fora.

The strike, now entering its third day, has affected over 6,000 students in the district. With no new talks scheduled, it's very likely we will not see a resolution before the weekend.

Bakers' Union Opposes Hostess Sell-Off: Jessica Hall of the Portland Press Herald writes that the union that represented bakers at Hostess before its bankruptcy has objected to the company's sale of its bread brands to Flowers Foods, Inc. The union contends that the sale terms do not offer any protections to its members.

"Flowers has not committed to preserve a single job, and in fact has affirmatively disclaimed any obligation even to 'consider' employing a single worker," the bakery union and pension fund said in a Feb. 25 court filing. "Thus, while debtors' secured lenders may view Flowers' bids as the 'best' for getting themselves paid, Flowers' bids provide zero assurances that the rights of the debtors' workers will be protected."

Interestingly, the U.S. attorney in Manhattan also objects to the sale, purportedly because the buyers would be able to shirk their obligations to comply with environmental laws. We have been following the Hostess debacle for some time here and will certainly keep you posted with any further developments.

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District Court Declares Convergys' Class-Action Waivers Unenforceable: Bill Donahue of Law360 ($$) reports that last Friday, a U.S. District Court Judge in Missouri invalidated Convergys Corporation's employee class-action waivers. Judge Carol Jackson, in finding the waivers to be unenforceable, wrote that enforcing the waivers would violate the National Labor Relations Act.

“Collective and class litigation, through which employees band together to challenge employers’ policies on wages and hours, is concerted activity engaged in for the purposes of mutual aid and protection within the meaning of the NLRA,” the judge wrote.

Interestingly, Convergys is engaged in parallel litigation with the National Labor Relations Board. Last fall, an Administrative Law Judge invalidated the company's class-action waivers and the employer appealed the ruling to the full Board, which has yet to make a decision.

Former Chairman Schaumber Says It's Time to Scrap NLRB: Roll Call is carrying an editorial from former National Labor Relations Board Chairman Peter Schaumber, wherein he calls on Congress to scrap the NLRB. In particular, Schaumber argues that the current Board is partisan, acts in defiance of Federal law, and does not act as a collective. Schaumber's solution? Transfer the Board's power to the judiciary.

Transferring the board’s authority to the federal judiciary will give business confidence in its balanced application and the public the assurance that the protection of employee free choice on the question of unionization will be the central focus of this important American labor law.

Schaumber's harsh words will most likely fall on deaf ears, however, particularly because current Chairman Mark Gaston Pearce has already stated that the Board will continue to operate until further notice, which is ostensibly in violation of the D.C. Circuit's recent Noel Canning decision. Schaumber's voice just adds to the growing Conservative consternation surrounding the Board's continued operations. We will keep you posted with any further developments.

Chaos Reigns As Strongsville Teachers Go On Strike: Patrick O'Donnell of the Plain Dealer reports that teachers in Strongsville, OH made good on their threat to go on strike, hitting the picket lines yesterday. Students and parents stated that classrooms were packed to capacity as substitute teachers taught double or triple classes. By midday, the student parking lot was more or less completely empty, although approximately two-thirds of the student body had reported for school.

"There was some chaos in the beginning, lots of challenges," said school board President David Frazee, stressing that the district plans to hire more substitutes every day. "But we believe that every day it's going to get better and better."

Negotiations between the teachers' union and school board officials broke down earlier this month over the calculation of "step raises," although the union has already consented to a static wage scale. Teachers maintain that they deserve raises since the wage scale has not been increased since 2008. Currently, the average Strongsville teacher takes home approximately $65,000 per year.

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5th Circuit Refuses to Enforce Board's Election Order: Scott Flaherty of Law360 ($$) reports that last Thursday, the 5th Circuit Court of Appeals held that Arkema Inc. had not actually interfered in a decertification campaign. Therefore, the National Labor Relations Board's ruling throwing out the results of the related decertification election was erroneous. The court ruled that it was not enforcing a Board order invalidating a 2008 decertification election because the Board's reasoning was not supported by the facts of the case.

Prior to the 2008 election, the company had disciplined an employee who allegedly had threatened a coworker in an attempt to drum up union support. However, the court held that the nature of the conversation took it outside the bounds of protected activity.

“Even if the incident began as protected activity, Saltibus escalated the encounter, thus losing the protection of the act,” the Fifth Circuit said. “Harassment and intimidation are not protected union activities; offensive, hostile language and threats are not protected even if under the guise of union activity.”

Neither party had responded to a request for comment as of Friday afternoon.

NLRB Employees Could be Furloughed As Result of Sequestration: Eric Yoder of the Washington post writes that the effects of sequestration will be felt by employees of the National Labor Relations Board. Apparently, the Board has provided its employees with a memorandum outlining the probable effects of the sequestration cuts. In particular, Board employees will most likely be furloughed for up to 22 days this year. The furloughs could begin as soon as late March. As this development could have a direct effect on the Board's administrative functions, we will be following the situation closely.

Striking HealthBridge Nursing Home Employees Return to Work: Nicholas Rondinone and Mara Lee of the Hartford Courant write that more than 600 nursing home employees at five different HealthBridge nursing homes returned to work this past weekend. The strike began more than eight months ago as a result of rising pension and health care costs. The employees, represented by the Service Employees International Union (SEIU), returned to work approximately three months after a judge ordered HealthBridge to take the workers back and restore their pensions and health care benefits.

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WA Judge Slaps Down Union Challenge to Seattle Development Plans: Kaitlin Ugolik of Law360 ($$) reports that last Friday, a Washington state judge granted summary judgment to the city of Seattle in its fight against the International Longshore and Warehouse Union (ILWU) to move forward with a massive redevelopment project that could bring professional basketball back to the city. The ILWU had contended that the city's plan was subject to environmental review pursuant to an October 2012 Memorandum of Understanding (the MOU).

“This is a big win in our work to bring the Sonics home to Seattle,” Seattle Mayor Mike McGinn said in a statement Friday.

ILWU attorneys could not be immediately reached for comment. The project is expected to cost almost a billion dollars and could also be the impetus for bringing professional hockey to the city.

Chamber Orchestra's Season at Risk as Contract Talks Resume: Marianne Combs of Minnesota Public Radio writes that the Saint Paul Chamber Orchestra (SPCO) met with management officials all day yesterday in an attempt to finally solve their long-running contractual dispute. Critically, both sides want to get the musicians playing again before the concert season ends. However, they are currently at odds over how to make that happen. Management officials have proposed a "talk and play" structure, where the musicians would resume performances while contract negotiations continue. The SPCO has yet to agree to the proposal.

The three main sticking points are: pay, how to reduce the size of the SPCO from 34 to 28 positions, and the electronic media agreement, that is the use of SPCO performances online.

In another twist to this story, the American Federation of Music (AFM) has recently filed unfair labor practice charges with the National Labor Relations Board against the SPCO. The AFM has alleged that SPCO leadership has not negotiated with the AFM in good faith over the dissemination of the SPCO's performances online.

Baseball Union Chief Discusses Increasing Drug Penalties: The Associated Press reports that Michael Weiner, the head of Major League Baseball's players' union (MLBPA), has stated that recent talks have centered around increasing penalties for positive player drug tests. 

"There are certainly some players who have expressed that," Weiner said. "We've had discussions with the commissioner's office. If it turns out that we have a different penalty structure because that's what players are interested in, that's what the owners are interested in, it will be for 2014."

Weiner stressed that while MLB already has the most stringent drug penalties in American sports, players are still willing to make collective sacrifices in order to ensure that the game is played clean. Any changes to the current drug-testing regime must be approved by both the League and the Players' Union. We will keep you posted as talks continue.
 

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Cleaning Crews at Target Stores Threaten to Strike: Josh Eidelson at The Nation writes that non-union janitors at Target stores in Minnesota are threatening to strike unless their employers agree to meet with them to discuss alleged unfair labor practices by Sunday at noon. The workers, employed by one of three contractors and working at Target stores in the Minneapolis/St. Paul metro area, have filed charges with the National Labor Relations Board alleging retaliation for attempting to organize.

“I guess I’d say I’m not scared,” Diversified employee and CTUL activist Alejandro Quirino told The Nation in Spanish. “Because I’m fed up and sick and tired of how they’ve treated us, and how our demands have been ignored. And that’s why I’m going to go on strike. If I get fired, I know I was fighting for what’s right, and putting in what I could to fight for what’s fair.”

A Target spokesperson declined comment, stating that any inquiries should be directed to the employees' actual employers, who happen to be outside contractors.

Board Rules Employee Fired For Discussing Salary Deserves Backpay: Matt Dunning of BusinessInsurance.com reports that Houston, TX-based Jones and Carter, an engineering firm, agreed to pay a former employee over $100,000 for firing her after she discussed her salary with other employees. The National Labor Relations Board had ruled a week prior that her conduct was protected activity under the National Labor Relations Act and that her discharge constituted an unfair labor practice.

According to court documents, Jones & Carter executives testified during an administrative hearing that Ms. Teare had been fired for “harassing” other employees about their salaries, and not merely discussing them. An administrative law judge ruled in Ms. Teare's favor on Nov. 26, 2012, declaring that the company's policy regarding salary discussions among employees constituted an unfair labor practice under federal law.

The Board affirmed the ALJ's ruling on February 8, 2013. While Jones and Carter offered to reinstate the employee, she has declined the offer of renewed employment.

UC Irvine Symposium to Discuss World Without Unions: Matt Coker of the OC Weekly writes that UC Irvine has kicked off a two-day symposium discussing the possibility of a post-union society. In particular, academics and labor lawyers from across the nation have been asked to consider viable alternatives to collective bargaining or improvements that could be made to the Wagner Act. UC Irvine described the panels as follows:

The panelists present a range of ideas and approaches to the challenge. They propose to increase the voice of workers without unions and to increase transparency about workplace standards; they describe and generalize from alliances between labor and environmental groups to change local law regarding independent contractor status; they propose reforms of immigration law, changes in the structure of bargaining and union elections and changes the legal rights and obligations of unions in right to work states. 

The symposium promises to be a fascinating exercise for academics. However, it will be interesting to see whether any viable proposals come out of the two-day event. We will be following the developments and will keep you posted if any ideas of note come out of UC Irvine this weekend.
 

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Texas Legislature Introduces Secret Ballot Bills: Jess Davis of Law360 ($$) reports that identical bills have been introduced in the Texas House and Senate that would require labor union elections to be conducted by secret ballot. Furthermore, a majority of those who would be affected by union representation would have to sign on in order to approve union representation, as opposed to the current rule that only requires a simple majority of those voting. Texas Attorney General Greg Abbott heaped praise upon the legislation.

“By enhancing our existing protections for Texas workers and developing a Workers Bill of Rights, the initiatives announced today can help ensure that the state of Texas continues to be a national leader in job creation and economic prosperity,” Abbott said.

Labor leaders in the state decried the bill, saying it would have a negative impact on police and firefighters in particular. We here at @LRToday will keep you updated as this legislation moves forward.

MI Woman Files ULP Over Facebook Firing: Jonathan Lowe of WNEM.com reports that a woman in Saginaw, MI has filed unfair labor practice charges with the National Labor Relations Board against her former employer after being fired for comments she posted on Facebook. While the exact details are unclear at the moment, it appears that the former employee had made several disparaging comments about her employer on the popular social-networking site. When management discovered her postings, she was discharged.

If this case moves forward and is prosecuted by AGC Lafe Solomon, it could provide more needed-guidance regarding the Board's social media policies, which at the moment are unclear to say the least. We will be watching this case closely as it develops.

Labor Group in CA Pushing Immigration Reform: Andrew Galvin of the Orange County Register writes that members of the Orange County Labor Federation (OCLF) rallied in front of Anaheim City Hall yesterday in an effort to help stir up support for comprehensive immigration reform. The OCLF, in particular, is pushing for a path to citizenship for America's more than 11 million undocumented workers.

Tefere Gebre, executive director of the Orange County Labor Federation, which organized the event, said labor representatives will be "visiting every congressional office multiple times," activating a "heavy letter writing campaign" and running phone banks in a "good old grass roots campaign to do the right thing."

The OCLF has indicated that the rally was not a "press conference," but instead marked the beginning of a long and loud campaign advocating for reforms.

In related news, members of the AFL-CIO have been meeting with U.S. Chamber of Commerce advocates in order to come to an agreement regarding temporary visas for low-skilled workers. Thus far, little progress has been made. As any change in immigration policy will have a ripple-effect through the world of labor law, we will be following this story closely.

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St. Paul Orchestra Files Unfair Labor Practice Charges Against Management: Euan Kerr of Minnesota Public Radio reports that the American Federation of Musicians (AMF) has filed unfair labor practice charges against the St. Paul Chamber Orchestra's (SPCO) management. In particular, the charges allege that SPCO management has failed to adequately respond to an AMF information request regarding SPCO works being published online.

"To understand their proposal we need to know what those recording are, we need to know who was involved in the making of those recordings, we need to know who the guest artists were, and we have been asking for that information since September," [AMF President Ray] Hair said.

SPCO management responded in kind, alleging that the AMF has thus far refused to negotiate the issue in good-faith. Moreover, the SPCO management team expects the Board to vindicate its position.

MI Panera Bakers Working to Unionize: E.B. Solomont of the St. Louis Business Journal reports that bakers at a Panera bread franchise in Michigan are fighting against their employer in an attempt to unionize. The bakers have been working towards collective representation by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (the Union) for over a year. Dan Wood, a baker leading the effort, had this to say:

 “I don’t want to hurt the company,” Wood told the Huffington Post. “I just want us to be recognized for what we are: the engine. You can’t buy anything from a Panera that we don’t touch.”

Officials at Panera's headquarters have issued a statement, saying that the company's goal is to treat all workers with respect. We will keep you posted as the situation unfolds.

NYC Drivers' Strike Called Off By Union: The Associated Press reports that the New York City school bus drivers' strike, which began over a month ago and has left more than 150,000 students stranded, has been called off by the Amalgamated Transit Union, Local 1181. Regular service is expected to resume this morning.

Driver Philip Pan proudly displayed a hand-written "welcome back" card on the dashboard of his bus. Pan says he and the people he serves are "like a family."

The strike was purportedly abandoned because New York City's leading mayoral candidates have promised to address drivers' job security concerns if elected. Interestingly, Mayor Michael Bloomberg had said previously that the drivers' requests for increased job protections were illegal under New York law.

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Saline Plant Workers File Charges Against UAW: Ben Freed of AnnArbor.com reports that automotive workers at the Faurecia plant in Saline, MI have filed unfair labor practice charges against the United Auto Workers. In pertinent part, the complaint states as follows: 

“The Union through its agents and representatives, has restrained and coerced employees of ACH by: 1. Since about October 1, 2012, misrepresenting to them the consequences of surrendering their ACH employment to take jobs with Devon Alpha Services; 2. On or about December 1, 2012, requiring ACH employees who accepted employment with DAS to execute membership applications and/or dues checkoff authorizations in order to collect their first paycheck with DAS.”

A spokesman for the UAW stated that the union was reviewing the charges and would not comment further.

Bozeman Nurses to Hit the Picket Lines: Lauren Maschmedt of NBCMontana.com reports that represented nurses at Bozeman Deaconness Hospital in Bozeman, MT are planning to picket this week to put pressure on the hospital during pivotal contract negotiations. The nurses, represented by the Montana Nurses Association (MNA), said their demands are simple.

"One of the issues that we really want to talk about is respect in the workplace" Johnson said. "We want some wording in our contract that would cover bullying and any intimidation."

Both sides, however, stress that the negotiations are happening in good faith and are working hard towards an amicable resolution. Further, the nurses have made it clear that they are not going on strike. New bargaining sessions are scheduled for this week.

VWR Employees Vote for Union Representation: The PR Newswire reports that workers at VWR in Visalia, CA have voted overwhelmingly in favor of representation by the Teamsters, Local 948. The now-unionized workers have expressed hope that collective bargaining will raise their wages up to industry standards.

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El Paso Nurses Choose NNOC as Bargaining Agent: Vic Kolenc of the El-Paso Times reports that nurses at Sierra Medical Center in El Paso, TX have voted to select the National Nurses Organizing Committee (NNOC) as their exclusive bargaining representative. The nurses voted Tuesday, with the union winning by about 40 votes (113-74).  A Sierra spokesperson expressed her disappointment with the union's victory, but promised to negotiate in good faith with the newly-minted union.

"Sierra Medical Center believes what's best for employees and management is working together without the involvement of a third party," Garcia said. "It has always been our position that the hospital offers competitive wages and benefits, and management promotes a positive work environment."

A union spokeswoman, however, expressed her excitement with the victory, claiming that El Paso is now a "union town" for nurses.

NYC Accepting Driver Bids Even Though Strike Continues: Phil Corso of the Queens Times-Ledger reports that the New York City Department of Education (DOE) has begun the process of reviewing bids from several bus companies over the more than 1,100 bus routes that went out in late December, even though the city is still dealing with the Amalgamated Transit Union (ATU) school bus drivers' strike, which is now almost a month old.

The city is hoping that the new round of bids would save millions of dollars in the long term because any new bids will not include driver job protections, which has become a major sticking point in negotiations between the city and the ATU. The union has asked the mayor to suspend bidding and put ATU employees back on the job.

“The mayor has the power to put our drivers and matrons back to work,” said Michael Cordiello, president of ATU Local 1181. “All we ask is that he suspend the bids and is willing to discuss ways to reduce costs within the school bus transportation industry, which the union has shown has nothing to do with keeping the most experienced school bus crews on the road.”

Workers Push Back Against Activist Union: Ira Kantor of the Boston Herald reports that workers at Complete Cleaning, Inc. in Lynn, MA have won a settlement after filing a complaint with the National Labor Relations Board against the Services Employees International Union (SEIU), Local 615. The complaint alleged that SEIU officials had attempted to claim a monopoly over Complete Cleaning employees' bargaining rights.

“Massachusetts needs a Right to Work law to make it less difficult for workers to keep predatory union bosses in check,” said Mark Mix, president of the National Right to Work Legal Defense Foundation.

The settlement also requires the SEIU to stop attempting to claim bargaining power until it can affirmatively show that it has the support of a majority of employees at Complete Cleaning.
 

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NY High Court Decision Could Push Employers Toward Zero Tolerance: Pete Brush of Law360 ($$) reports that yesterday New York's highest court upheld an arbitration decision reinstating a unionized school bus driver who was fired after testing positive for marijuana. Experts believe that the court's decision could compel public employers to insert "zero tolerance" language regarding the use of illicit substances.

"Some districts do have zero tolerance policies," [the driver's attorney] said. “I'm sure this district will now try to negotiate with the union to get a zero tolerance policy. If it's a solid policy, negotiated with the union, then everyone is on the same page.”

A spokesperson for the school district stated that they were disappointed with the court's decision.

Nurses File ULP Alleging Secret Neutrality Agreement: TheSuburbanite reports that two Ohio nurses have filed charges with the National Labor Relations Board, complaining that an August vote to unionize nurses at Affinity Medical Center an Ohio was tainted. The nurses have alleged that the National Nurses Organizing Committee (NNOC) and Affinity engaged in a secret "neutrality agreement" wherein the two parties negotiated bargaining concessions at the expense of hospital employees. A spokesman for the NNOC lambasted the nurses' claims: 

“The claims (the foundation) makes in that release are manufactured, wholly without merit and ludicrous,” Idelson said. “The notion that the company is aiding the nurse’s union is absurd on its face.”

The nurses are hoping that the court will not order Affinity to negotiate with the NNOC, because " the union lacks the true and uncoerced support of a majority of employees," according to the complaint.

KAISER Schedules Another Vote: The Press-Enterprise reports that almost 45,000 Kaiser Permanente employees in California will decide whether they will be represented collectively by a union in April, according to a National Labor Relations Board spokesperson. 

The employees are deciding on whether to remain represented by the SEIU or to jettison their current union in favor of the National Union of Healthcare Workers. Of course, the employees could also vote to become unrepresented. 
 

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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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Bozeman Nurses File ULP Charges Against Hospital: Jodi Hausen of the Bozeman Daily Chronicle reports that the Montana Nurses Association (the union) has filed unfair labor practice charges against Bozeman Deaconess Hospital. The complaint alleges that the Hospital has refused to bargain with the union and has also refused to allow a union representative to sit in on meetings between nurses and supervisors.

The union and the Hospital have been in tense negotiations over a new contract since October. Last December, the union voted down the Hospital's proposal by a large margin. The nurses allege that the Hospital has since retaliated by conducting various unfair labor practices.

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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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Justice Ginsburg Denies HealthBridge's Injunction Request: Sindhu Sundar of Law360 ($$) reports that Justice Ginsburg has denied HealthBridge Management LLC's request to stop a partial injunction that would require the company to reinstate striking workers. HealthBridge argued that the recent D.C. Circuit ruling invalidating President Obama's recess appointments to the National Labor Relations Board should delay the injunction until the whole mess is sorted out.

“It makes little sense for the courts to order immediate action at the behest of the board here when the board’s ability to act is in profound doubt and will be addressed by this court,” HealthBridge argued.

The row stems from a dispute between the company and the New England Health Care Employees Union, which represents HealthBridge employees at several facilities in Connecticut. Over 600 workers have been on strike since July, when the most recent round of contract talks broke down.

HealthBridge's attorneys said that they were reviewing Justice Ginsburg's denial and were most likely planning on re-petitioning another Justice for review, which is allowed under Supreme Court rules. We will be watching this issue closely and will keep you up to date.

ULP Charges Going Ahead Despite Claims of Union Malfeasance: Tarryl Jackson of MLive reports that a long-simmering labor dispute between Hendrickson Trucking and Jackson's Teamster Local 164 is headed for review to the National Labor Relations Board. The charges remain active despite several allegations of financial improprieties committed by union officials.

Recently, it was discovered that Al Sprague, local president of the International Brotherhood of Teamsters, had been collecting state unemployment checks. Furthermore, local secretary and treasurer William Bernard alleges that he is owed over $100,000 in unused vacation pay, despite the fact that the local's assets are less than half that amount. A spokesman for the union said that it would not comment on internal investigations.

Coastal Ports and Longshoremen Reach Deal in Principal: Larry Swisher of Bloomberg BNA ($$) reports that the International Longshoremen's Association (ILA) and the United States Maritime Alliance (USMX) have agreed in principal to a six-year contract that would govern relations between the employer and over 15,000 dock workers. However, the agreement is still subject to ratification by ILA members. Further, 14 local port agreements must be negotiated before the master contract can be finalized.

The two sides were brought back to the bargaining table in December after a bi-partisan coalition urged President Obama to invoke the Taft-Hartley Act. Doing so kept the parties' discussions moving forward and also avoided a potential copycat scenario of the Los Angeles Port strikes, which were short, but economically devastating.

We will continue to follow the local port negotiations and will report back when the contracts are completely ratified.

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The National Labor Relations Board Office of General Counsel announced last week that a strike by union bus operators against a group of New York school bus companies does not violate the National Labor Relations Act. The Division of Advice opined Local 1181-1061 of the Amalgamated Transit Union has a primary labor dispute with the employers.

The charge alleged the strike was unlawful secondary activity because the union’s primary dispute was with the New York Department of Education, which contracts with the bus companies on behalf of New York City schools. In a February 1, 2013 Advice Memorandum, however, the General Counsel found that the bus companies were, in fact, the primary employers in the labor dispute.

The designation was not mutually exclusive, as the Memorandum suggested the Department of Education might also be an employer:

...the Union also has a primary labor dispute with DOE, a point on which both the Charging Party Employers and the Union agree. They do not contradict or undermine the Union’s primary labor dispute with the Charging Party Employers as to whether a condition of employment (the EPPs) will be included in the parties' new collective-bargaining agreement. In this regard, it is well established that more than one employer may be a primary employer under Section 8(b)(4), particularly where, as here, one of the employers (DOE) has inserted itself in a “basic area” of the other employer’s labor relations, i.e., the provision of EPPs covering the Charging Party Employers’ employees.

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Reuters reports California-based Prime Healthcare Services has advised the SEIU that it will not comply with at least two National Labor Relations Board rulings from the past year following the recent Noel Canning decision.

The company it had informed the union that it would not follow the NLRB's ruling in WKYC-TV, 359 NLRB No. 30 (2012), requiring the continued collection of union dues after contract expiration; or Piedmont Gardens, 359 NLRB No. 46 (2012), requiring employers to provide unions with confidential investigatory interview statements.

As one might imagine, the Service Employees International Union-United Healthcare Workers West, takes exception. One union lawyer colorfully criticized the employer's position:

"The employers' side is giving the finger to the NLRB and the National Labor Relations Act," the lawyer, Bruce Harland, said in an interview. "It's not well thought out, it's just an in-your-face, brazen, ‘We're not going to comply with this.'"

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Union Settles With Board Over Wal-mart Protests: Bill Donahue of Law360 ($$) reports that the United Food and Commercial Workers International Union (the UFCW) has settled a complaint filed against it by Wal-mart relating to last year's Black Friday protests. Under the terms of the agreement, the UFCW agreed to suspend all picketing for sixty days. Further, "Our Wal-mart", a subsidiary of the UFCW, agreed not to attempt to further organize Wal-mart workers.

“Our Wal-Mart is an organization of Wal-Mart workers from across the country who, along with many supporting organizations, calling on Wal-Mart to improve labor rights and standards for its employees,” the union said in letter outlining its commitments. “Our Walmart has no intent to have Wal-Mart recognize or bargain with it as a representative of Wal-Mart employees.”

A spokesman for the National Labor Relations Board was pleased that the case settled, but noted that proceedings would remain open in order to ensure compliance with the terms of the settlement.

Vegas Cab Company, Drivers Reach Impasse in Negotiations: The Las Vegas Review-Journal reports that Yellow Checker Star Corporation, Las Vegas' second-biggest cab company, has imposed its last best offer on the city's cab drivers. The drivers, represented by the Industrial Technical Professional Employees Union, did not substantively respond other than to state that they were in the process of weighing their options.

The new contractual terms are scheduled to go into effect on Sunday. Drivers will receive more unpaid leave days, as well as increased pension contributions. Further, the drivers' bonus pools will also be increased.

NFLPA Head Says Player Safety Top Priority: Steve Ginsburg at Reuters reports that the National Football League Players' Association (NFLPA) has stated that it has a number of issues it wishes to address with the NFL regarding player safety. NFLPA President DeMaurice Smith, in announcing a $100 million grant to Harvard University, said that the players are demanding that the NFL create the position of "chief safety officer" that would be tasked with overseeing league safety protocols.

"If we ... see eight, 10, 12 players who have suffered a concussive event on the sideline and we know that the sideline concussion protocol takes at least seven minutes, if we then see that player put back in the game 45 seconds later, we know that the sideline doctors have failed to employ the very protocol that we agreed to use," he said.

Smith also demanded that the league perform background checks on its medical personnel to determine whether they have ever been subjected to malpractice litigation, but so far the league has resisted.

"It is time for us to seriously contemplate what are our players rights at work," said Smith. "I believe our players are entitled to the best medical care in the country.

The league and the Players' Union signed a new collective bargaining agreement in the fall of 2011, which averted a potential season-ending shutdown. The union is hoping that its new proposals will be inserted into the CBA as amendments. We will keep you posted as these issues move forward.

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A Different Take on the Hostess Bankruptcy: Megan McArdle of the Daily Beast published a thought-provoking piece on Tuesday regarding the recent Hostess bankruptcy. McArdle posits that the Baker's Union, derided in the press for their "unreasonably demands," has actually put together a brilliant negotiating strategy. Instead of fighting with Hostess, the Baker's Union essentially forced Hostess into bankruptcy in order to blow up the Teamsters' contract and start from scratch. Holman Jenkins of the Wall Street Journal explains the issue as follows: 

Under the latest turnaround plan, the sticking point was Hostess's distribution operations, source of the Hostess horror stories filling the media. Union-imposed work rules stopped drivers from helping to load their trucks. A separate worker, arriving at the store in a separate vehicle, had to be employed to shift goods from a storage area to a retailer's shelf. Wonder Bread and Twinkies couldn't ride on the same truck.

Essentially, massive inefficiencies in the Teamsters' contract, not the Baker's contract, forced Hostess out of business. The company is currently close to selling off its Twinkie brand to an investment firm. Perhaps a new deal for the Bakers will follow. We will keep you posted.

Sen. Barrasso Moves to Kill 2012 Board Decisions: Fox News reports that Senator John Barrasso (R-Wyoming) has introduced legislation that would effectively hit the reset button and overturn all National Labor Relations Board decisions made in the last year. Sen. Barrasso's bill comes in the wake of last week's Noel Canning ruling that held that the Board did not have enough members to constitute a quorum because President Obama's recess appointments were constitutionally unsound.

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Right-To-Work Amendment Fails in VA Senate: Natalie Rodriguez of Law360 ($$) reports that a proposed amendment to the Virginia state constitution has failed in the Senate. The amendment, proposed by Sen. Richard Black (Republican), would have made Virginia a "Right to Work" state. The amendment would have prohibited a labor union from denying a non-member the right to work alongside that union.

“In a victory for Virginia's working families, a 'right to work' for less measure has failed in the state senate on a 20-20 tie vote ... Adding right-to-work to the constitution would have further entrenched a harmful policy already existing in Virginia state law,” the Virginia chapter of the AFL-CIO said in a statement on Monday.

The attempted Virginia amendment follows similar successful efforts in Michigan and Indiana. Further, similar right-to-work legislation is currently working its way through the Pennsylvania legislature. We will keep you updated as this legislation moves forward.

Outrage on NY Bus Driver Picket Line: Eyewitness News 7 reports that heated protests are occurring this morning on the picket line set up by New York City school bus drivers who are on strike over job protection issues. Yesterday, union officials and bus company management met at Gracie Mansion in an effort to end the nine-day strike. Furthermore, the National Labor Relations Board is currently examining the legality of the labor strike. A decision from the Board is expected in the coming days.

N.M. Hospital Staffing Issue to be Heard by NLRB: Phaedra Haywood of the Santa Fe New Mexican writes that an Administrative Law Judge will today entertain unfair labor practice allegations filed against Christus St. Vincent Regional Medical Center. The allegations stem from a dispute last summer wherein the Hospital refused to provide the National Union of Hospital and Health Care Employees (the Union) with certain information the union had requested regarding Hospital staffing needs.

Union officials and the Hospital have repeatedly been at odds in recent years over staffing levels, with the Union maintaining that the Hospital is dangerously understaffed. The two parties are currently in settlement talks which, if successful, would void the need for a Board hearing.

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Wisconsin Bargaining Law Upheld by 7th Circuit: Michael Bologna of Bloomberg BNA ($$) reports that the U.S. Court of Appeals for the Seventh Circuit has upheld Wisconsin's 2011 law limiting collective bargaining rights of the majority of public sector workers. In so doing, the Court reversed an earlier District Court ruling invalidating the law. The Seventh Circuit held, contrary to the District Court, that the law did not violate the equal protection clause even though the law strips collective bargaining rights for public workers, but not public safety employees. Governor Scott Walker trumpeted the ruling.

“Today's court ruling is a victory for Wisconsin taxpayers,’’ Walker commented in a statement. “The provisions contained in Act 10, which have been upheld in federal court, were vital in balancing Wisconsin's $3.6 billion budget deficit without increasing taxes, without massive public employee layoffs, and without cuts to programs like Medicaid.’’

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Board to Hear Challenge to Bus Strike: Ben Chapman of the New York Daily News reports that the National Labor Relations Board will hear the New York bus companies' challenge to a labor strike by New York City school bus drivers today. After the Board hears from both sides, it will rule on the legality of the strike, which began last week and has affected over 150,000 children.

The Amalgamated Transit Union, Local 1181 called the strike last Wednesday in protest over a lack of job protections for its drivers.

New York Times Weighs in on "Social Net Speech": Steven Greenhouse of the New York Times has written an interesting analysis concerning several recent National Labor Relations Board decisions regarding protected online speech. Greenhouse examines numerous Board decisions and concludes that, per the Board, workers are now able to freely discuss working conditions online without threat of retribution.

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”

Other commentators, however, argue that the Board's new policies regarding social media are difficult to apply.

“The board is using new legal theories to expand its power in the workplace,” said Randel K. Johnson, senior vice president for labor policy at the United States Chamber of Commerce. “It’s causing concern and confusion.”

This area of law will continue to evolve as new cases are decided. We will certainly keep you posted.

SEIU-Affiliated Security Guards to March in Protest of ULPs: WTNH Connecticut reports that private security guards represented by 32 BJ, an affiliate of the Service Employees International Union (SEIU), are planning a march through downtown Hartford to protest alleged union surveillance by SOS Security, a company based in New Jersey. The guards filed a complaint with the National Labor Relations Board last month, complaining that the company engaged in illegal surveillance after an employee was threatened for supposedly engaging in union-organizing activities.

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Board Ruling Could End Bus Drivers' Strike: NY1 news reports that bus company owners involved in the New York City school bus drivers' strike have filed a complaint with the National Labor Relations Board over the legality of the drivers' strike. The Board will hear testimony on Tuesday and could end the strike as early as Wednesday, if the strike is in fact declared illegal. The strikers have been picketing for almost a week, with their major demand being increased job protections for senior drivers. The City's current position is that it would be illegal for the bus companies to grant such protections. We will keep you updated as this case proceeds before the Board.

Chicago Tribune Praises Board Ruling on Charter Schools: The Editorial Board of the Chicago Tribune has heaped praise on the National Labor Relations Board's ruling that the Chicago Math and Science Academy (CMSA) should be considered a private institution subject to the Board's jurisdiction. The ruling essentially means that CMSA teachers can still unionize, but must do so under the Board's strict requirements instead of under state law proceedings.

This decision is an important victory for charter freedom and flexibility. It should help attract more quality charters to Illinois. Those schools are desperately needed. Ask the parents of 19,000 children who are on long waiting lists for a charter seat.

CMSA's 50 teachers have not yet held a vote as to whether to unionize. A representative of the teachers stated that they were examining their options.

Labor Unions Donate to Obama's Inauguration Fund: Fredreka Schouten of USA Today reports that several major labor unions have contributed sums to President Obama's inauguration fund. Those unions include the International Brotherhood of Electric Workers and the American Federation of Government Employees. While the Presidential Inauguration Committee was required to release its list of donors, it does not have to release any amounts received until April.

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FSI Settles Board Complaint: Kristina Smith at the News-Messenger reports that the United Food and Commercial Workers Local 75 (UFCW) has settled with FSI after filing a complaint with the National Labor Relations Board last summer. The complaint alleged that an FSI employee was suspended and ultimately discharged for engaging in union organizing activities. FSI issued a written statement, denying that the settlement was an admission of guilt.

“Companies settle these issues daily for myriads of reasons,” he said. “It did not make sense for us financially to pursue the matter any longer while Tyler Keathley was receiving free legal counsel.”

FSI also denied allegations of unlawful interrogation that sprang from the Board complaints. The  discharged employee could not be reached for comment.

NYC Bus Drivers' Strike Greatly Affecting Disabled Students: Rachel Monahan, Corinne Lestch, and Richard Shapiro of the New York Daily News report that disabled students have been disproportionately affected by the New York City bus drivers' decision to walk off the job. Many disabled students depend on receiving various forms of therapy at school and are unable to get there via alternative means. One student's mother voiced the following complaint.

“I can’t take him on the subway because there are no elevators, and I can’t take a cab because his wheelchair doesn’t fold up,” groused Carmen Padilla, whose 18-year-old son is a paraplegic suffering from cerebral palsy.

The City reports that almost a third of disabled students were unable to make it to class Tuesday, while a full half of disabled students did not attend classes Wednesday. A complaint has been filed against the bus drivers with the National Labor Relations Board. A ruling is expected today.

AGC Solomon Interviewed by HR Magazine: HR Professionals Magazine has published an interview with National Labor Relations Board Acting General Counsel Lafe Solomon. In the interview, AGC Solomon covers territory ranging from the current makeup of the Board to current union trends. It is certainly an interesting read.

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Should Charter Schools be Treated as Private Entities?: Adam Emerson of the Fordham Institute has published an interesting article outlining whether it is really appropriate for the National Labor Relations Board to treat Charter Schools as private schools subject to federal labor regulations. Recently, the Board held that the Chicago Mathematics and Science Academy was essentially a private entity and was subject to the Board's jurisdiction. The State of Illinois had argued that the Academy was, for all intents and purposes, a public entity and could be regulated under state law.

You can’t have it both ways—and there is no third option (even if American society might benefit from such a thing). You cannot, on the one hand, argue that charter schools are not governmental subdivisions for purposes of escaping hostile state labor laws and sundry public regulations and then turn around and urge the IRS to stick with its assumption that charters are “agencies or instrumentalities of the state” to assure that charter employees can benefit from government retirement plans.

While the Board's decision was limited to one school in Chicago, this case could have major implications regarding charter schools in general. We will certainly keep you posted as this issue will certainly come up again as teachers continue to organize.

Need for Cost Controls at Nation's Ports Causing Labor Disputes: Ernest Scheyder at Reuters reports that the recent increase in labor disputes at various ports across the country has resulted from the need for employers to cut costs and reduce their workforce. U.S. productivity levels lag badly behind those of other countries, with Scheyder projecting that it takes 20 U.S. workers to do the work of 5 or fewer workers in other parts of the world.

"Everyone wants to reduce their cost and that means lower wages or fewer people," said a senior executive at a major West Coast container terminal operator who spoke on the condition of anonymity so as not to affect future negotiations with labor unions.

Earlier this year, dock workers in Los Angeles and Long Beach struck for 8 days. While the actual work-stoppage was relatively short, its ripple-effect across the economy cost several billion dollars. Employers are looking to increase productivity, while dock workers are striving for increased benefits. We will be following these issues as they develop further.

School Bus Drivers' Strike Continues: NY1 news reports that the New York City school bus drivers' strike has entered a second day. Neither side has made any indication that they are willing to budge, and no talks are currently scheduled. The Mayor's office has reported that school attendance was slightly below average yesterday. However, among special needs children, attendance was down almost 30 percent.

The bus companies are in the process of hiring replacement drivers and have also filed a complaint with the National Labor Relations Board in an attempt to end the work-stoppage. Mayor Bloomberg's office stated that the Mayor hoped the strike would end soon and that the city could not meet the union's demands for increased job protections because doing so would be illegal.

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Workforce Fairness Institute Calls for Member Griffin to Step Down: Dave Boyer of the Washington Times reports that the Workforce Fairness Institute (WFI) has called for National Labor Relations Board Member Richard Griffin to resign from his post due to being named as a defendant in a lawsuit alleging union corruption. Prior to being named to the Board by President Obama, Member Griffin was employed as the general counsel of the International Union of Operating Engineers (IUOE). Fred Wszolek, a spokesman for the WFI, had this to say: 

"The recent complaint that names him as a defendant and details his role in an embezzlement scheme clearly makes him unsuited to serve as an unbiased arbiter deciding matters that significantly impact American workers and small businesses."

A Board spokesman declined comment, but Member Griffin's attorney has called the allegations "frivolous." We will certainly keep you posted as the case develops.

NYC Bus Drivers on Strike, Stranding Hundred Thousand Students: Lindsey Christ of NY1 reports that New York City school bus drivers represented by the Amalgamated Transit Union (ATU) have walked off  the job and are officially on strike. The drivers are demanding increased job protections from the City of New York.

“We’ve tried every option to avoid a strike, but our members feel that their back is to a wall and they must take a stand on this issue," Amalgamated Transit Union Local 1181 President Michael Cordiello said.

The move to strike effectively strands 150,000 students, forcing parents to make alternative arrangements. So far, schools have been handing out free Metro Cards, while the bus companies have been searching for replacement workers. The bus companies also have stated that they intend to file a complaint with the National Labor Relations Board in an effort to end the strike.

Unions Allege Workers at Corinthian Contractors Being Underpaid: Patricia Sullivan of the Washington Post reports that more than a dozen labor unions protested outside the Arlington, VA office of Corinthian Contractors, alleging that workers are not being paid federally required wages under the Davis-Bacon Act. The company, in a written statement, responded by arguing that the firm pays "at or above the prevailing wage on all federal contracts." 

The issue had already been brought to the attention of the National Labor Relations Board, which dismissed the claims as baseless. D.C. Water, who brought Corinthian Contractors onto the project, has also investigated the allegations and has found the company to be in compliance.

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Retail Groups File Brief With Board Arguing Against "Micro-Unions": Stewart Bishop of Law360 ($$) reports that two retail groups have filed a brief with the National Labor Relations Board in support of a challenge by Macy's, Inc. to a Board Regional Director's recognition of a "micro-union" at one of its Massachusetts stores. The Retail Industry Leaders' Association (RILA) and the Retail Litigation Center (RLC) argue that the NLRB should return to its former presumption favoring whole-store collective bargaining units.

Such a change in favor of micro-unions “would serve to balkanize the structure of the employer’s business, adversely affecting amici’s members and their businesses, complicating labor relations and collective bargaining, threatening to embroil customers and other members of the public in labor disputes, and building in delay and increased costs in the board’s currently fair and efficient representation process,” the brief said.

A retail store composed of multiple independent bargaining units would have an adverse effect on morale, as well as on business, the parties continued. Further, it would arguably undermine the Board's preference for "stable labor conditions."

Case Against Hyatt Regency Goes to Hearing: Jamie Smith Hopkins of the Baltimore Sun reports that the NLRB has begun making its case against the Hyatt Regency Baltimore, alleging multiple unfair labor practices in response to a union organizing campaign. The complaint, filed last November, contends that the hotel began interrogating employees and "invoking harsh discipline" upon learning of the potential organizing campaign. 

"It's a classic nip-in-the-bud case," said Sean R. Marshall, a senior trial attorney for the board.

However, the hotel said in a statement that it believed it would ultimately prevail over the charges. We will certainly keep you updated as the case moves forward.

Union States School Bus Drivers Strike to Begin Tomorrow: Courtney Gross of NY1 reports that the President of the Amalgamated Transit Union Local 1181 (ATU) has stated that New York City school bus drivers will go on strike as of Wednesday morning. The strikers are demanding that the City include certain employee protection clauses in its contracts with bus drivers. Mayor Bloomberg released a statement of his own upon learning of the ATU's decision to strike.

"The union is abandoning 152,000 students and their families who rely on school bus service each day. We hope that the union will reconsider its irresponsible and misguided decision to jeopardize our students' education."

Fortunately for parents and students, the City has come up with a contingency plan. Metro Cards will be distributed to regular bus riders during the school day, which will hopefully result in minimal disruption for the students and the schools. Parents and students, however, are somewhat skeptical.

"If we can't go on the school bus, how are we going to get to school?" asked a student.

We here at @LRToday have been following this story closely and will keep you updated as it unfolds further.

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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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In a departure from long-standing agency policy, NLRB Acting General Counsel issued Memorandum GC 13-2 on January 9, 2013, outlining a modified agency approach that allows front pay in lieu of reinstatement to be included in Board settlements.

Although agreements providing for monetary compensation in exchange for waiver of reinstatement occur routinely among parties in ULP settlements, the agency favors reinstatement as “the preferred means to vindicate statutory rights and restore the status quo after unlawful discrimination.” This pro-reinstatement approach has been evident in agency policies that: (a) refused to allow front pay to be included in Board settlements, requiring instead that parties handle agreements exchanging compensation for reinstatement waivers privately, in separate side arrangements as non-Board agreements and, (b) admonished Regions “not to encourage a waiver or advocate a premium above the make-whole remedy for any purpose whatsoever” during the settlement negotiation process. These policies have reflected the Board’s position that discriminatees need to be protected from being pressured to waive the right to reinstatement.

While reiterating that the agency continues to favor reinstatement as the remedy for unlawful discharge, the AGC acknowledged that, in reality, many discriminatees prefer monetary compensation to reinstatement. In his memo, the AGC stated:

[P]arties and discriminatees are free to negotiate a waiver in return for a monetary amount. In practice, they routinely do so and a significant number of settlements approved by Regions in recent years include payments to discriminatees of greater-than-one-hundred-percent backpay.

Noting that “[a]gency policy should favor Board settlements, not discourage them,” the AGC announced that the Case Handling Manual will be revised to permit front pay in Board settlements. The memorandum also outlines policy revisions that will: (1) require a written waiver in most cases where settlement does not include reinstatement and, (2) clarify the approach the Regions should take when negotiating settlements involving offers of front pay.

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Americold Worker Files Charges Against Employer: Derek Barichello of saukvalley.com reports that Karen Dixon, an employee of Americold Logistics in Rochelle, Illinois, has filed a complaint with the National Labor Relations Board alleging that the company committed several unfair labor practices after workers voted to be represented by the Retail, Wholesale and Department Store union (RWDS). Interestingly, Dixon's complaint alleges that, after the election, she attempted to garner signatures for a petition against union representation, but was threatened with discharge by management if she continued to do so. In pertinent part, the complaint alleges as follows: 

Americold management discriminately enforced its policy to bar Cox and other independent-minded employees from collecting petition signatures while off duty, even threatening to fire Cox from her job if she continued – while non-employee union organizers are given wide-ranging access to company facilities to counteract Cox’s efforts.

Dixon does not want to pay union dues, which she would be forced to do once the RWDS and the company sign a collective bargaining agreement since Illinois is not a Right to Work state. This has been the third attempt by Americold employees to organize.

Former Board Chairman Blasts Recess Appointments: Former NLRB Chairman Peter Schaumber, in an opinion piece posted in the National Review Online, argues that the D.C. Circuit should invalidate President Obama's intra-session recess appointments of Board Members Sharon Block and Richard Griffin. Schaumber opines that, according to the Constitution and the intent of the framers, President Obama's power to make recess appointments is only valid if the appointments occur during an inter-session recess, not one of the many intra-session recesses that occur each year in the Senate.

This reading of the Recess Clause is supported not only by its text but by the historical context. At the time of the Framers, the Senate was in recess for six to nine months between sessions; once in recess, transportation made it difficult for them to return to vote on an appointment.

Schaumber, however, realizes that the answer may ultimately be a political question that the courts will avoid. Even though the Constitutionality of the appointments is certainly suspect, the Senate in recent years has largely acquiesced to the validity of intra-session recess appointments. We here at LRToday have been following this story for quite some time. We will certainly keep you posted as to any developments.

Board Investigating Possible ULPs at UNFI: The Auburn Reporter writes that the National Labor Relations Board has begun investigating allegations of unfair labor practices committed by United Natural Foods Inc. in connection with an unfair labor practice strike organized by drivers and warehouse workers at UNFI's Auburn warehouse. The strike occurred on December 10, 2012 and lasted three days. Following the strike, the union claims it gave the company an unconditional offer to return to work. The company allegedly accepted this offer, then rescinded it, eventually replacing 72 union workers with permanent replacement workers. The union returned to the picket line on December 13, 2012.

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Board ALJ Finds Employment Agreement to be Overbroad: A National Labor Relations Board Administrative Law Judge, in a decision issued January 8, 2013, held that a Quicken Loans, Inc. employment agreement was overly broad and in violation of Section 8(a)(1) of the National Labor Relations Act. The clauses at issue in the instant case were a non-disparagement clause, as well as a clause governing the use of confidential information.

The ALJ acknowledged that these types of cases are difficult to dispose of because "the line between lawful and unlawful restrictions is very thin and often difficult to discern." However, the ALJ held that the non-disclosure clause was violative of the Act because employees would be restricted from discussing wages and benefits with other employees. Such a restriction, the ALJ ruled, hinders Section 7 rights and thus violates Section 8(a)(1) of the Act. The non-disparagement provision at issue also did not pass muster because it was so broad as to possibly chill employees from exercising their Section 7 rights.

Labor Secretary Stepping Down: Alana Semuels and Maeve Reston of the Los Angeles Times report that Hilda L. Solis, President Obama's current Secretary of Labor, is stepping down from her post and returning home to California. Solis was a member of Congress for 8 years, as well as a California state legislator, before assuming her post in the President's cabinet.

"She has been a champion for workers and has never been afraid of speaking out for workers, especially on health and safety and wage issues," said Durazo, the powerful executive secretary-treasurer of the Los Angeles County Federation of Labor, AFL-CIO.

Labor relations watchers would be wise to pay attention in the coming weeks and months with regards to who President Obama selects to replace Secretary Solis. We will certainly keep you posted as to any updates.

Labor Secretary's Departure Draws Mixed Reaction: W. James Antle III of the Daily Caller writes that, while some members of the labor community have praised the work done by Secretary Solis, others are less upset to see her leaving her post. In particular, Chris Mosquera, a member of the United Food and Commercial Workers union (the UFCW), stated that Solis' lax enforcement of financial disclosure regulations left a bad taste in his mouth.

However, AFL-CIO President Richard Trumka was much more complimentary towards Secretary Solis' tenure.

“[Solis] brought urgently needed change to the Department of Labor, putting the U.S. government firmly on the side of working families.”

Interestingly, the National Journal has compiled a list of potential replacements for Secretary Solis, which can be found HERE. We will certainly keep you informed of any updates.

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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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Last month the National Labor Relations Board issued a decision perceived to be very beneficial to organized labor, as it erased 50 years of precedent to hold that an employer can no longer unilaterally discontinue dues checkoff provisions after the expiration of a collective bargaining agreement. However, the Board might have unintentionally made it more difficult for unions to reach agreement with some employers on new contracts, thus promoting more industrial strife.

As we noted two weeks ago, in WKYC-TV, 359 NLRB No. 30 (2012), the Board reversed its decision in Bethlehem Steel, 136 NLRB 1500 (1962), as it relates to dues checkoff provisions based on “compelling statutory and policy reasons.” Finding that there was no statutory basis to exclude dues checkoff from the general rule that employers cannot make unilateral changes regarding mandatory subjects of bargaining, the Board ruled that dues checkoff, like other terms and conditions of an expired collective bargaining agreement, is part of the status quo that cannot be changed absent agreement by the union. 

This development is significant as some employers will object to continuing dues checkoff during negotiations for a new collective bargaining agreement because it eliminates what has historically been a legitimate leverage point available to them. While unions ordinarily place high priority on these provisions, employers typically recognize they provide little benefit to operations while increasing administrative burdens. As a result, employers may give it a second thought now that the commitment will be more open-ended.

Moreover, and perhaps more importantly, the Board's decision in WKYC-TV provides employers an easier path for bargaining to impasse in either first or successor contract negotiations given the recent decision by the U.S. Court of Appeals for the District of Columbia in Erie Brush & Manufacturing Corp. v. NLRB, Case. No. 11-1337 (D.C. Cir. Nov. 27, 2012).

As discussed in our analysis of Erie Brush, the NLRB found that the employer unlawfully refused to bargain with the union by claiming that there was an impasse. The primary issue leading to overall impasse in Erie Brush was the employer being "committed to an open shop," and thus unwilling to agree to the union's proposal on union security. On petition for review with the appellate court, the court vacated the NLRB’s order because 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.

Although Erie Bush provides employers reluctant to bargain with a union an opportunity to create a bona fide impasse by insisting on an open shop, the tactic is very risky as the Board generally views an employer's reluctance to agree to union security as evidence of bad faith bargaining. See Clarke Manufacturing, 352 NLRB 141 (2008) (finding that an employer's submission, without a tenable explanation, of a regressive proposal to eliminate a union-security provision was unlawful under Section 8(a)(5) and (1)). Accordingly, the detrimental effect of Erie Bush, at least as perceived by organized labor, was somewhat limited--at least until the Board's decision in WKYC-TV.

WKYC-TV now provides employers an additional path under Erie Bush to use a singular issue to create an overall impasse. Because some employers will want to secure elimination of dues checkoff as an economic weapon in subsequent negotiations, they now have a "tenable explanation" for being "committed" to proposals that either:

1. do not provide for dues checkoff; or
2. expressly provide that dues checkoff ceases immediately before or at the termination of the collective bargaining agreement.

Given that most unions will likely refuse to agree to either of those proposals, it certainly appears that a bona fide impasse may be more likely to result in future negotiations than before, which may in turn result in more strikes, lockouts, and other industrial strife. So even if the current Board was trying to reduce industrial strife by shifting some bargaining leverage back in organized labor's favor, it remains uncertain whether WKYC-TV will actually achieve those results.

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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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A National Labor Relations Board administrative law judge found that an employer violated Section 8(a)(1) of the National Labor Relations Act by: 1) requiring applicants to waive their right to bring class claims, and 2) opposing an employee's class and collective allegations based upon that waiver.

In Convergys Corporation, NLRB Case Nos. 14-CA-075249 (Oct. 25, 2012), the charging party completed and submitted an employment application with the employer in which she waived the right to a jury trial, any statute of limitations longer than six months, and the right to "lead, join, or serve as a member of a class or group of persons bringing such a claim or lawsuit." Six months after she was hired, the charging party, individually and on behalf of similarly situated employees, filed a lawsuit against the employer alleging violations of the Fair Labor Standards Act. In response, the employer filed a motion to strike the class and collective allegations in the lawsuit based on the waiver the employee signed in her employment application.

The Acting General Counsel alleged that the employer violated Section 8(a)(1) of the Act by requiring job applicants to waive their rights to file collective lawsuits, by enforcing those waivers by filing the motion to strike the class and collective allegations of the employee's lawsuit, and defending against the class and collective allegations of the employee's lawsuit on the basis of the waiver she signed. Recognizing that he was bound by recent Board precedent, the administrative law judge agreed with the Acting General Counsel:

The parties appear to recognize that I am bound by the Board’s decision in D. R. Horton, Inc., 357 NLRB No. 184 (2012), which is pending before the United States Court of Appeals for the Fifth Circuit. Respondent submits that the Board wrongly decided that case. However, unless it is materially distinguishable from the instant case, I am bound to conclude that Respondent violated the Act as alleged.

In D.R. Horton, the Board held that, “employers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, arbitral and judicial,” (slip opinion page 12 and 13). Thus, despite the fact that the D.R. Horton decision concerned a mandatory arbitration agreement, rather than a lawsuit which waived the employees’ rights to maintain a class or collective action, it is clearly dispositive of this case. Indeed, the Board’s order specifically requires D.R. Horton to cease and desist from “maintaining a mandatory arbitration agreement that waives the right to maintain class or collective actions in all forums, whether arbitral or judicial.”

The employer argued that the case was distinguishable from D.R. Horton because the charging party was an applicant, not an employee, at the time she signed the waiver, and that an employer does not violate the Act by seeking dismissal of the class action suit on the basis of such a waiver. The judge disagreed.

As the judge correctly pointed out, "[a]pplicants for employment are employees within the meaning of section 2(3) of the NLRA," and "[m]oreover, [the employee] was working for Respondent when she exercised the right found by the Board in D.R. Horton to file a class action lawsuit." The judge similarly rejected the employer's argument that an employer cannot violate the Act by opposing a plaintiff's motion for class certification. The judge reads D.R. Horton:

as standing for the proposition that an employer remains free to assert arguments against certification other than those based on the kind of waiver Respondent required of job applicants in this case.

While this decision is another example of the NLRB's application of D.R. Horton, most courts continue to ignore D.R. Horton in upholding class claim waivers. As noted by the ALJ in Convergys, D.R. Horton is on appeal, so hopefully we will have more guidance regarding the legitimacy of class claim waivers in the next few months.

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Earlier this month the National Labor Relations Board found that a Regional Director did not abuse his discretion by holding a decertification petition in abeyance pending disposition of an unfair labor practice case despite the fact that the union had requested to proceed with an earlier decertification petition while the same charges were pending.

In The Finley Hospital, NLRB Case No. 33-RD-000899 (Oct. 12, 2012), the union filed an unfair labor practice charge alleging that the employer failed to provide wage increases following the expiration of the collective bargaining agreement. Subsequent to the filing of that charge, the employer and the union negotiated a new collective bargaining agreement, which the employer claimed satisfied any potential monetary remedy owed the employees from the employer's alleged unfair labor practice. The union disputed that contention, and an administrative law judge issued a decision finding a violation by the employer. The employer then filed exceptions to the administrative law judge's decision with the Board.

In 2007 after the administrative law judge's decision, a decertification petition was filed and the union requested to proceed to an election notwithstanding the unfair labor practice allegations that were pending before the Board. The union won the election 144-137.

Nineteen months after the 2007 election, and while the union's unfair labor practice allegations were still pending before the Board, the instant decertification petition was filed. Despite the significant passage of time and the fact that the union requested to proceed with the 2007 election, the union did not request to proceed to an election on the new petition. As a result, the Regional Director issued a decision holding the petition in abeyance.

The Board affirmed the Regional Director's decision:

The Employer’s continuing failure to pay contractual wage increases was broad and serious. It adversely affected the entire unit, and continued to do so at the time the Regional Director decided to hold the petition in abeyance. In those circumstances, we cannot say that the Regional Director abused his discretion in concluding that the delay in remedying the Employer’s conduct, which the judge had found unlawful, reasonably could have created an impression among unit employees that the Union was ineffectual or incapable of protecting their rights. Nor did the Regional Director abuse his discretion in concluding that the Employer’s unremedied violations would have interfered with the holding of a free and fair election under the appropriate laboratory conditions.

Member Hayes, meanwhile, dissented because he found that the Regional Director abused his discretion. First, Member Hayes asserts that the charges relied upon to block the petition were significantly remote in time from the filing of the petition, thereby "lessening the likelihood of their affecting employee choice." Second, Member Hayes found that the most significant allegation had been "substantially remedied in the meantime by productive negotiations between the parties" that resulted in two successor collective bargaining agreements and a series of wage increases. Finally,

a year and a half before the petition was filed the Regional Director permitted a decertification election to proceed in the same unit while the same charges were pending before the Board. The Union won that election. Under these circumstances, I find it unreasonable to conclude that the delay in the Board's final resolution of the unfair labor practice case would cause employees to believe the Union's representation of employees was ineffectual or would otherwise interfere with employee free choice had an election been held at the time the petition was filed.

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In a recent decision, Marriott International, 359 NLRB No. 8 (2012), the National Labor Relations Board continued its recent efforts to limit an employer’ s ability to regulate its employees’ off-duty access to work areas.  For the third time in a year, the Board has expanded on existing case law to find that an employer’s access policies unduly discourage employees from engaging in protected Section 7 conduct.

The access policies at issue prohibited off-duty employees from accessing working areas unless they obtained prior approval from management.  In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board set forth a three-part test to determine the validity of employee access rules.  It concluded an access policy would be lawful only if it:

(1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.

The Board majority in Marriott concluded that the access rule at issue failed to pass the Tri-County test because:

the Respondent’s rule is not a uniform prohibition of access; rather, it prohibits off-duty employee access except in certain unspecified circumstances subject to a manager’s “prior approval,” giving the Respondent broad – indeed, unlimited – discretion “to decide when and why employee may access the facility.

It also concluded that the rule chilled employees in the exercise of their Section 7 rights because employees would reasonably construe the policy to prohibit Section 7 conduct, particularly because they would have disclose their intention to engage in Section 7 conduct to management when seeking approval.

Member Bryan Hayes dissented in the decision.  He questioned the Board’s expansive application of the Tri-County test and concluded that

The Act cannot reasonably be interpreted to force employers to choose between inhuman rigidity and giving off-duty employees free rein to the interior of their facilities.  Here, because union activity is treated no differently from other activity under the Respondent’s access rule, I would find these rules unlawful.

Member Hayes also recognized that there was no evidence that the access rule had been promulgated in response to or been applied to restrict Section 7 activity.

The long-term viability of the case, however, like the long-term viability of all recent Board action is questionable for two reasons.  First, one of the members that joined the majority decision was a recess appointment by President Obama that was not confirmed by the Senate.  Currently, there are several lawsuits challenging the validity of those appointments.   Second, the outcome of the presidential election may or may not significantly alter the composition of the Board.   In the meantime, employers would be wise to take the necessary measures to conform their policies to the mandates of this decision.

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The National Labor Relations Board issued a press release today touting its work in fiscal year 2012. Between October 1, 2011 and September 30, 2012, the NLRB issued 341 decisions in contested cases - 277 unfair labor practice cases and 64 representation cases. Included in those decisions were nine of its 10 oldest decisions. By removing those from its docket, the average age of pending cases was cut in half from 219 days to 108 days.

The Board's press release highlights the significant topics it addressed in FY 2012:

Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.

The statement also referenced the new election rules it passed that were designed to "streamline the representation case process." However, as we have discussed in this blog, the new "quickie" election rules are currently suspended pending legal challenges, and several of the holdings in the decisions referenced above (e.g., class action waivers and the Specialty Healthcare standard) are currently being challenged in appellate courts. We will continue to provide updates on those issues and other labor law developments as they occur.

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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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The National Labor Relations Board recently found in Dresser-Rand Company, 358 NLRB No. 97 (Aug. 6, 2012), that an employer's lockout violated Sections 8(a)(3) and (1) of the National Labor Relations Act despite the fact that the employer had a legitimate and substantial business justification for locking out its employees.

The case arose when the employer and the union were bargaining for a successor collective bargaining agreement. The union ultimately went on strike and the employer hired replacement workers. During the strike 13 employees crossed the picket line and returned to work. A few months later, the union offered to return to work. In response, the employer instituted a lock out of the strikers and the crossovers, but not the permanent replacements:

[T]he Respondent decided to keep the permanent replacement employees working during the lockout for economic reasons and because of the Respondent’s fear that once it unilaterally imposed terms and conditions of employment (following declaration of impasse), the Union would either refuse to return to work or, if it had already returned, go back out on strike. The Respondent, thus, reasoned...that if it no longer could draw upon the permanent replacements to perform work (if they were locked out), the balance of economic power would strongly shift to the Union.

The final decision maker on the lockout added that she ultimately elected to lock out the employees because:

[w]e were concerned about safety issues, we were concerned about quality issues, we were concerned about productivity issues. We were spending a tremendous amount of money on the replacement workers, and we thought that the business . . . it was just unsustainable as a process, and we had no idea how long that would go on, because we were so far apart in negotiations and had gone, at periods of time, so long between meetings that we just thought that it was untenable as a business.

The parties continued to bargain during the lockout, and a few weeks later the employer ended the lockout, declared an impasse in bargaining, and imposed its last offer.

The Administrative Law Judge's Analysis

To prove that the employer violated the Act, the General Counsel had to prove that the lockout was motivated by a discriminatory intent. Interestingly, the General Counsel did not argue that the employer's lockout was "inherently destructive" of the employees' Section 7 rights, which would have permitted the NLRB to find a discriminatory purpose despite evidence of a business motivation for the lockout. Rather, the General Counsel argued that there was specific evidence of discriminatory intent. Specifically, that the nature of the lockout--i.e., strikers and crossovers locked out, but not permanent replacements--and the employer's other alleged violations of the Act evidenced the employer's discriminatory intent.

The administrative law judge found that the employer "engaged in the lockout in furtherance of its bargaining demands," and thus had "a substantial and legitimate business reason for the lockout." Nevertheless, the judge found a discriminatory intent because of the employer's other unfair labor practices that included an unlawful termination, an unlawful suspension, preferential treatment accorded to crossovers at the conclusion of the lockout, failure to bargain over the recall procedure, and the denial of vacation to returning strikers:

The Board held in Midwest Generation, EME, LLC...“Notwithstanding our finding that the lockout as implemented served a legitimate business interest, a violation of Section 8(a)(1) and (3) may still be found if the evidence warrants an inference that the Respondent’s use of the lockout was motivated by antiunion animus.” Under the circumstances here, including the number of unfair labor practices and their pervasive effect on the bargaining unit, I infer that the Respondent’s lockout decision was unlawfully motivated.

The Board's Decision

The Board merely adopted the judge's findings and conclusions, but noted:

In adopting the judge’s finding that the Respondent’s lockout violated Sec. 8(a)(3) and (1), we find it unnecessary to pass on the judge’s finding that the Respondent articulated a legitimate business justification for locking out strikers and continuing operations using permanent strike replacements. Even assuming that finding is correct, they agree with the judge, for the reasons he stated, that the General Counsel established that the lockout was discriminatorily motivated. ...

Contrary to our dissenting colleague, we find that the judge properly relied on the Respondent’s other unfair labor practices to find that the lockout was discriminatorily motivated. The Respondent’s unlawful conduct was all of a piece, a reaction to the employees’ protected strike that ended without a resolution of the underlying disagreements. The Respondent’s failure to bargain about recall procedures and, in particular, the Respondent’s discriminatory preferential recall of the crossovers, both of which followed immediately upon the cessation of the lockout, had a pervasive impact on the unit.

In Member Hayes dissent, he asserts that it was improper to find a discriminatory intent based on the other alleged unfair labor practices because: 

The Respondent’s motive in locking out employees must be measured at the time it made the decision to institute the lockout. All of the unfair labor practices found by the judge occurred after the Respondent made the decision to lock out employees and do not shed any light on the Respondent’s motive for instituting the lockout. They are “far too slim a reed upon which to premise a conclusion that the lockout was unlawfully motivated.” ... They cannot relate back to supply missing proof of unlawful motivation at the beginning and for the duration of the lockout.

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DC Circuit Sends DuPont Benefits Case Back to NLRB: Abigail Rubenstein of Law360 ($) writes that the D.C. Circuit Court of Appeals granted DuPont's request for review of a NLRB decision finding that it unlawfully changed its employee benefits program while in negotiations with two unions.

The appeals court sided with the company, holding that because DuPont made changes to its benefits package, known as BeneFlex, annually in anticipation of the annual enrollment period it was in fact following its past practice, even if the changes had never before occurred while collective bargaining agreements were in flux.

Given these facts, the court found that the NLRB's decision finding that DuPont committed an unfair labor practice conflicted with the NLRB's own precedent from 2004. Accordingly, the court "remanded the matter to the board, saying that it must either conform to its precedent in the 2004 case or explain its reasons for changing course."

Port of Portland Files ULP Charge: The Columbian reports that the Port of Portland filed an unfair labor practice charge with the National Labor Relations Board against the International Longshore and Warehouse Union, Local 8. According to the story, there is a jurisdictional dispute between the Lonshoremen and the International Brotherhood of Electrical Workers over a small number of jobs. The ULP alleges that the Longshoremen are causing delays through a work slowdown.

Utility Workers file ULP against Pilgrim Nuclear: Fred Hanson of The Patriot Ledger writes that the Utility Workers of America Local 369 filed five various unfair labor practice charges against Pilgrim Nuclear Power Plant related to their negotiations for a collective bargaining agreement. According to the union, the employer locked out the workers on Tuesday.

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Class Action Waivers: Law360 reports that D.R. Horton Inc. started its appeal of the National Labor Relations Board's ruling that arbitration agreements barring employees from bringing class actions violate federal labor law by arguing that employees have no substantive right to access class procedures.

Las Vegas' Sands 'Empire' Gets First Union: Matt Assad of the Los Angeles Times writes that the world's largest casino company now has employees represented by a union for the first time in its 23 year existence:

Now a band of security guards making $13 an hour may be on the verge of ending the world's 14th-richest person's winning streak.

The National Labor Relations Board has ordered Sands Casino Resort Bethlehem to begin bargaining with its 130 security guards as a labor union. Pending an appeal to a federal court, Local 777 would become the first union in Las Vegas Sands' $35-billion gaming empire.

NLRB files Complaint Against Guam Shipyard: Pacific News Center reports that the NLRB has filed a complaint against Guam Shipyard asserting that it filed an employee for union activities.

NLRB Finds Police Sergeants Are Supervisor: LegalNewsline's Michael P. Tremoglie writes that Harvard thwarted an effort by its police sergeants to unionize by successfully demonstrating that they are supervisors under the National Labor Relations Act. Another union already represented Harvard's other police officers. 

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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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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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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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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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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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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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The first Administrative Law Judge ruling has come down in a social media case before the National Labor Relations Board.  In a September 2, 2011 decision in Hispanics United of Buffalo, 3-CA-27872, an ALJ has 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.

One of the employer's domestic violence advocates frequently complained about her co-workers not doing enough to help the organization's clients.  One Saturday, off-clock, at home, a co-worker posted a message on her own Facebook page identifying the employee's criticism and seeking her co-workers' opinions about it.  At least five co-workers responded, posting defenses and and commentary on staffing levels and other working conditions.  The postings, replete with profanity, culminated with one employee making reference to a group meeting with the employer's Business Manager -- ostensibly to discuss these issues. 

Days later, following a complaint by the employee who was the subject of the postings, the five employee posters were fired. 

The ALJ's analysis of the case makes express reference to the Board's Parexel International LLC decision, 356 NLRB No. 82 (Jan. 28, 2011), which broadly expanded the scope of protected "concerted activity" earlier this year.  He concluded that the five co-workers were engaged in protected activity, and thus their termination expressly for that activity -- as conceded by the employer -- violated Section 8(a)(1) of the Act:

... I conclude that the Facebook postings satisfy the requirements of that decision. The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted. Whittaker Corp., supra

In sum, I conclude that the above cases control the disposition of the instant case. Just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.

Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit 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. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms of HUB employees' work, Respondent violated Section 8(a)(1).

Finally, the ALJ agreed with the General Counsel that the various Facebook postings did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.

It is a brief decision, without many relevant facts in dispute, but which cites numerous earlier Board cases for similar propositions to those upon which this holding rests.  It is another more concrete step in the evolution of Board law on social media issues, however, as practitioners now have an adjudicated decision on these issues -- where previously we were left to speculate as to how they would be treated, based on a variety of complaints, advice memoranda and analogous rulings in other areas.

More resources and commentary:

• Our chapter in “Think Before You Click: Strategies for Managing Social Media in the Workplace,” Thompson Books
• Our May 18, 2011blog post on the issuance of Complaint in Hispanics United
• U.S. Chamber of Commerce Report: “A Survey of Social Media Issues Before the NLRB”
• General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases." -- Hispanics United is the first case discussed.

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

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

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

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

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

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

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

Ultimately, the Board held:

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

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

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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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This month, the National Labor Relations Board Division of Advice has issued three Advice Memoranda recommending dismissal of unfair labor practice charges arising out of employee use of Facebook.  In all three cases, the Division explained that the misconduct for which the employees were terminated did not constitute protected concerted activity, but were rather more appropriately considered personal gripes outside the protection of the Act. 

In JT's Porch Saloon, Case No. 13-CA-46689 (July 7, 2011), a bartender was fired after posting comments in a Facebook conversation with his sister expressing his hope that his employer's "redneck" customers would "choke on glass as they drove home drunk."  None of his co-workers participated in the Facebook conversation, but days later, his employer terminated him (ironically, perhaps, via Facebook message).

In Wal-Mart, Case No. 17-CA-25030 (July 19, 2011), an employee was terminated after he took to his Facebook page to express frustration and insult his Assistant Manager.  Among other things, he called the Assistant Manager a "puta" and declared that her criticisms of his work were "retarded."  He concluded his manifesto with the exclamation that Walmart could "kiss [his] royal white ass."  Although co-workers responded to his posts, they were expressions of individual support -- not group action.  For example, one wrote: "hang in there."

Finally, in Martin House, Case No. 34-CA-12950 (July 19, 2011), a Recovery Specialist at a non-profit residential facility for the homeless was terminated for posting inappropriate comments about residents.  One night, while on the clock, the employee posted a series of comments about how "spooky" the institution was, the "voices" her clients hear, and how they would "just pop meds."  Interestingly, none of the participants in the Facebook conversation were co-workers -- and indeed, none of her co-workers were even Facebook friends of the employee.    

In analyzing all these cases, the Division of Advice reiterated the appropriate Board standards for finding conduct to be protected concerted activity.  Stated most thoroughly in the Wal-Mart memo:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.”  Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’”  On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted

None of the conduct described in the three cases above met that standard.  The employee in Wal-Mart was clearly complaining about his own relationship with the Assistant Manager, which seemed to be reinforced by the comments of his co-workers.  The employee in JT's Porch was simply venting his personal frustration at work by making derogatory remarks about his customers. Similarly, the employee in Martin House was making insensitive -- if less offensive -- comments about the employer's clientele.  Accordingly, the Division found this conduct was not protected, and therefore that the employees' terminations did not violate the Act.

In an earlier post on the Board's developing line of cases on Social Media, I noted that a trend was clearly emerging on this issue:

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.

For more on how the Board has been approaching these cases, you can also check out the chapter I contributed to the Thomson publication "Think Before You Click: Strategies for Managing Social Media in the Workplace" which just hit electronic bookshelves last week.

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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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On the heels of the National Labor Relations Board's proposed rulemaking to shorten the time period between the filing of a representation petition and the holding of an election, Cornell Professor Kate Bronfenbrenner has issued a new study entitled "The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence."  Along with Columbia professor, Dr. Dorian Warren, Professor Bronfenbrenner has published the eight page "working paper" in support of the Board's effort to drastically limit the pre-election campaign period.

Like the Professor's earlier works in support of similar efforts, like the Employee Free Choice Act, the study is unabashedly partisan.  As in her earlier works, "No Holds Barred: The Intensification of Employer Opposition to Organizing." and "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," the Professor assumes all allegations of unfair labor practices to have actually occurred, and conflates any and all legitimate employer response to organizing with unlawful coercion and intimidation.  Again, the Professor suggests here that all of the anecdotal data studied came exclusively from interviews with union organizers -- yet there is no effort to discount the obvious biases likely held by this self-interested population. 

No matter.  This study -- like those before it -- is likely to be widely cited by proponents of the Board's current effort to eliminate lawful employer speech in response to union organizing efforts.  The paper's introduction may provide a telling window into where supporters would like to see the time limits drawn:

Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition.  But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed.  Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay."

More cases being held within 21-30 days is "some progress," but bottom line -- proponents of the Board's proposed measures still consider more than 20 days to be "delay."

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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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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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Liz Mullen of the Sports Business Journal (subscription) is reporting today that Region 2 of the National Labor Relations Board has sent the unfair labor practice charge filed against the NFLPA by the NFL to the Division of Advice in Washington, D.C. 

Back in February, the NFL owners filed the charge (subsequently amended) against the NFLPA, alleging that the union had 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 in New York City, accused the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."  The charge described the alleged misconduct 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.  Finally, the charge spelled out the heart of the NFL's concern -- the NFLPA's strategy of coordinating a decertification in order to obtain a strategic advantage in their negotiations -- which is now also at the heart of the antitrust litigation playing out in the Court of Appeals for the Eighth Circuit.

The Region's referral to the Division of Advice is not terribly unique, especially given the stakes involved here.  The Division of Advice, under the auspices of the Office of the General Counsel in Washington, D.C., consists of three branches: The Regional Advice Branch, the Injunction Litigation Branch, and the Legal Research & Policy Planning Branch.  This matter is obviously now before the Regional Advice Branch which will research, analyze and provide "advice" to the General Counsel and the Regional Office with respect to whether the charge is worth pursuing.  Following this review -- perhaps a few weeks or months hence -- the Division will likely issue an Advice Memorandum to the Regional Director recommending either issuance of a complaint or dismissal of the charge absent withdrawal. 

As a practical matter, in the instant dispute between the NFL and the NFLPA, this is not likely to have much impact.  We are likely to see an Eighth Circuit decision in the court litigation before we see the results of this review by Advice.  It certainly does not hurt the owners' position in ongoing negotiations in that the PR of an outright dismissal by the Regional Office might have had an impact on their leverage.  And, to some extent, the NLRB's referral to Advice does undermine the certainty of District Court Judge Susan Nelson's conclusions about what the Board was likely to do when she granted the players an injunction against the owners' lockout back in late April.  But this fairly routine decision by the Regional Office certainly did not shift any significant leverage toward one side or the other in this ongoing legal battle.

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The National Labor Relations Board has declared lawful the union practice of displaying large inflatable rat balloons at a secondary employer’s premises to protest the labor practices of a separate non-union contractor.  Upon remand from the U.S. District Court for the District of Columbia, in Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB No. 162 (May 27, 2011), a 3-1 Board majority extended the rationale set forth in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found a union's display of large stationary banners at a secondary employer's premises  -- a hospital -- was not unlawful.

Section 8(b)(4) of the National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer.  "Picketing" that seeks a consumer boycott of a secondary employer is generally considered unlawfully coercive. Simple handbilling with the same object is, on the other hand, generally protected speech. 

The Board majority here found that the balloon display -- a giant, rabid rat -- did not involve "confrontational conduct," and was thus unlike picketing.   The majority noted that the union agents did not move, shout, impede access, or otherwise interfere with the hospital’s operations.  The Board concluded that much as the mock funeral procession with coffin and costumed Grim Reaper that the union staged outside the hospital:

[the] rat balloon itself was symbolic speech.  It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.

By the combination of holdings in Eliason & Knuth, its progeny, and now this case, the Board has significantly eviscerated the secondary boycott provisions of the Act.  Now, so long as the union does not place the signs or huge protest objects on sticks or include "moving" supporters in connection with the display, the Board appears content to allow a union to apply pressure upon neutral employers at their places of business. 

Member Brian Hayes dissented:

Considered in the abstract, or viewed from afar, the display of a gigantic inflated rat might seem more comical than coercive.  Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.

Ironically, the inflatable rat used by unions in these protests is manufactured in Plainfield, Illinois -- in a non-union shop.

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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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The National Labor Relations Board has issued another complaint arising out of employee discipline for use of social media. The Board published a press release this evening announcing that a complaint was issued May 9, 2011 by the Regional Director in Buffalo, New York against Hispanics United of Buffalo, a nonprofit organization.  The complaint alleges that the employer unlawfully discharged five employees after they criticized working conditions on Facebook. 

While the complaint is not yet posted on the NLRB website as of this date, the Board's press release indicates that five employees responded to a co-worker's Facebook post with comments defending their job performance and criticizing working conditions, including work load and staffing issues. These employees were subsequently terminated by the employer who claimed their comments constituted harassment of a co-worker involved.  The press release states:

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. 

A hearing is set before an administrative law judge on June 22, 2011, in the Buffalo Regional Office.

This is just the second complaint issued by the Board arising out of social media issues, although a number of similar charges have recently settled prior to issuance of a complaint.  In April, various media outlets reported that the New York Regional Office had notified Thomson Reuters that it was preparing to issue a complaint including an allegation that the publisher improperly warned a union officer about a Twitter post.  The employee's union, the New York Newspaper Guild, recently announced a comprehensive contract settlement which included resolution of the charge.  On April 27, 2011, the San Francisco Regional Office also announced settlement of a charge against an online construction retailer who terminated an employee who had posted comments on Facebook about alleged labor code violations.  Finally, late that month, the Division of Advice also issued an Advice Memorandum recommending dismissal of a Twitter-based charge, perhaps providing further guidance regarding the Board's approach to these cases.

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On April 21, 2011,the Division of Advice issued an Advice Memorandum recommending dismissal of a charge alleging that a newspaper reporter was unlawfully terminated for Twitter posts – some of which involved his employer. In Lee Enterprises, Inc., Case No.28-CA-23267, the employer, the Arizona Daily Star newspaper, had no written social media policy. During 2010, the charging party, a public safety reporter, posted Twitter messages mocking the employer’s sports editors, joking about homicides in Tucson, Arizona, and insulting other local media outlets.

After forbidding the employee to Tweet about “anything work-related” pending the outcome of an investigation, the employer ultimately suspended and then fired him.  His termination notice read, in part:

Despite the multiple warnings, suspension and final verbal notice issued as recently as February 2010, when you were told to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company, you have again disregarded that guidance.

The Division of Advice concluded that the reporter’s termination did not violate Section 8(a)(1) of the Act because his inappropriate Twitter posts “did not involve protected concerted activity.”  More specifically, the Division noted that his posts did not relate to the terms and conditions of his employment, nor did he seek by these posts to involve other employees in issues related to employment.

The Division expressed some concern that the employer made overly broad statements to the employee that could be interpreted to prohibit Section 7 activities. Among these were a warning “to stop airing his grievances or commenting about the Employer in any public forum,” the instruction not to tweet about “anything work-related,” and the termination notice’s reference to “derogatory comments in any social media forums.”  On balance, however, the Division declined to consider these comments to constitute a verbal “rule” or policy. Rather, they were made solely to the charging party in the context of otherwise lawful discipline, and were not communicated to a broader audience of employees.

Perhaps the most interesting element of the Advice Memorandum, however, is a discussion which would appear to be dicta. Although the General Counsel’s office clearly indicated it did not find an unlawful overly broad social media policy at issue in the case, it suggested strongly that it still would have considered the charging party’s termination lawful under such a policy. After acknowledging that the Board has consistently held that “an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act,” the Memorandum clarifies that discipline pursuant to an overbroad rule has been held to be unlawful “only where the underlying conduct involved Section 7 activity.” 

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Law360 (subscription) reports today on a Complaint issued by the NLRB against the California Nurses Association for unilaterally printing a statement regarding employee "Weingarten Rights" on the inside cover of its CBA with various healthcare institutions.  The Complaint alleges that this conduct violates the employees' rights to refrain from union activity, as well as the Act's requirement that parties refrain from unilateral modifications to the terms of their agreements.  From Law360:

Printing the rights on collective bargaining agreements implies that employees must have a union representative present, impeding their right to choose to avoid unions altogether, the complaint says. Moreover, including the text on the agreements without the employers' permission amounts to unilaterally altering the terms and conditions of employment, the office claims.

  *  *  *

The 227-bed Henry Mayo Newhall Memorial Hospital filed an unfair labor practice charge against the union in October. The CNA has represented the hospital's full-time, part-time and per diem registered nurses since 2000, the complaint says.

The hospital and the union signed off on a collective bargaining agreement in April 2009, and the union was supposed to print up copies for the employees but instead distributed copies to employees that include a copy of the Weingarten Rights printed on the back, according to the complaint.

The hearing in this case is scheduled for August 1, 2011 in Los Angeles.

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• NLRB Complaint
• "Boeing to Fight NLRB Complaint Backed by Union" -- Boeing press release
• "South Carolina Lawmakers Livid About Boeing NLRB Complaint" -- Fox News blog
• "Former NLRB Chairman Says NLRB Complaint Against Boeing is Unprecedented" -- Washington Examiner
• "Criticisms Mount Against NLRB's Attack Against Boeing, Business" -- NAM's Shopfloor.org
• "State, Local Leaders Join Together to Keep Boeing in S.C." -- WCSC-TV News 
• "NLRB Dictates Boeing Operational Plans" -- HotAir
• "Labor Board Tells Boeing New Factory Breaks Law" -- New York Times
• "NLRB Issues Complaint Over Boeing's Move to S.C." -- AFL-CIO Now blog
• "Boeing Should Move 2nd Line to Washington, U.S. Board Says" -- Daily Caller
• "DeMint Blasts NLRB Complaint Against Boeing and Right-To-Work States" -- LibertyPundits
• "Union-Controlled NLRB Issues Complaint Against Boeing for Transferring Work to a Non-Union Facility" -- LaborUnionReport.com
• "NLRB Cites Boeing for Illegal South Carolina Move" -- IAMAW website
• "National Labor Relations Board Seeks to Force Boeing to Direct Work" -- Sheppard Mullins Labor & Employment Law blog

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In a decision issued on March 31, 2011, National Labor Relations Board Chairman Wilma Liebman suggested that she would like the Board to require employers to provide information about relocation decisions to unions in a broader range of cases.  In Embarq Corp., 356 NLRB No. 125 (March 31, 2011), the Board unanimously concluded that the employer was not required to negotiate with a union over its decision to close a call center in Las Vegas and relocate the work to a call center in Florida. 

In deciding whether an employer's relocation decision is a mandatory subject of bargaining, the Board applies standards set forth in Dubuque Packing Co., 303 NLRB 386 (1991).  The General Counsel must first establish that the decision involves a relocation of unit work "unaccompanied by a basic change in the nature of the employer's operation."  If this prima facie burden is met, there are a number of ways by which the employer may rebut the presumption that it must bargain over the move.  One such way is if the employer can establish:

(1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.

In Embarq, the Board concluded that labor costs absolutely were a factor in the employer's decision, but that the employer had proven that "the Union could not have offered labor-cost concessions sufficient to alter the... decision to relocate."  As a result, the employer did not have to bargain over its decision and the related complaint allegations were dismissed.

Chairman Liebman agreed with the conclusion, and noted that because the issue was not a mandatory subject of bargaining, under existing Board law the employer was not obligated to provide the union with information regarding the relocation.  She wrote a separate concurring opinion, however, to highlight her view that:

neither the after-the-fact attempt to assess whether bargaining might have been successful, nor the attempt, years later, to restore the status quo in those cases where the Board finds a bargaining violation, are constructive for any of the parties concerned.

Instead Chairman Liebman would place the initial burden on employers at the time of the decision to justify the decision.  The Chairman would require employers to timely notify unions whether or not a relocation plan turns on labor costs; to explain to the union the basis for any non-labor-cost move; and, to provide information to the union regarding any labor-cost savings.  In the Embarq case, no party asked the Board to revisit any of these issues.  Still, after explaining her thoughts, in concluding her opinion, the Chairman notes:

...in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information.

Unionized employers contemplating a relocation of work any time soon would be well-served to give this concurring opinion careful thought.

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In a vigorous dissent to the 2007 Board decision, Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007), current Chairman Wilma Liebman declared:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

In the latest example of the National Labor Relations Board's efforts in this regard, various sources are reporting that the Regional Office for Region 2 is prepared to proceed with a case against a publisher for maintaining a social media policy which it alleges unlawfully restricted an employee's use of Twitter to criticize the employer.   The New York Times reports, and theunion representing the employee confirms, that the Regional Office has notified the parties that, absent settlement, it will be issuing a complaint.  Per the Times: 

The board asserts that the company’s Reuters news division violated the reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that said, “One way to make this the best place to work is to deal honestly with Guild members.”

The author of the post, Deborah Zabarenko, the agency’s environmental reporter in Washington and the head of the Newspaper Guild at Reuters, sent that to a company Twitter address after a supervisor had invited employees to send postings about how to make Reuters the best place to work.

What is unclear from the NYT report is that the Twitter posting was public -- and not a "DM," or private "Direct Message" in Twitter parlance.  Labor attorney Eric B. Meyer has posted this screen cap of how the message appeared in her employer's Twitter feed:

While we have not yet seen any draft or intended complaint, the Times account suggests that the employee was not actually disciplined.  Accordingly, it would seem that the Board is alleging that the employee was chilled in the exercise of her rights under the Act by her supervisor's alleged phone call to her and/or the mere maintenance of an allegedly "over broad" social media policy.  

The union which filed the ULP charge likewise suggests that the complaint would allege the employer violated the law by both:

• Illegally implementing restrictions on employees’ use of social media that would chill federally protected speech about working conditions (a violation of Section 8(a)1).

• Applying the illegal Twitter policy to a Guild-represented employee (another 8(a)1 violation). 

While the more widely discussed American Medical Response case involved an employee fired for a Facebook posting about her supervisor, the more recent Student Transport of America case alleged that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" a specific social media policy in its employee handbook.  There was no actual discipline imposed by the employer in the latter case.  Both cases settled  -- Student Transport prior to the issuance of a complaint.

The union reports the NLRB's threatened complaint in this case covers significant issues regarding the parties' collective-bargaining negotiations -- of far broader import than a single Tweet by an employee.  Indeed, the union describes the complaint as "massive."  As a result, the seemingly relatively minor Twitter allegations may be settled out, robbing us again of a definitive Board Decision and Order on these issues.  But at this rate, it won't be long before another social media charge is taken up for further consideration.

More commentary and resources:

• "Another Social Media Skirmish: Discipline for a Tweet Gets the NLRB Involved" -- Eric B. Meyer on TLNT
• "NLRB Set to Move Against TR" -- The Newspaper Guild of New York
• "Labor Disputes Arising out of Social Media" -- Law.com (Sept. 28, 2010)

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In a 3-1 decision published Friday, the National Labor Relations Board has adopted a new access standard for the employees of a contractor wishing to engage in Section 7 activity on the property of a third party where they regularly work.  In New York, New York LLC d/b/a New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), the Board held:

We address only the situation where, as here, a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner's business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.  

We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly intereferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline....

The employees at issue worked for a food service contractor that operated three restaurants and a food court outlet in the interior premises of a Las Vegas casino.  Employees of the contractor working on the casino's premises began organizing efforts on behalf of the union representing the casino's own food service workers.  Off-duty employees of the contractor began entering the casino's public areas -- mostly in front of the contractor's outlets -- and distributing handbills to patrons, asking them to urge the contractor to recognize and bargain with the union.  The casino regularly called Las Vegas police to remove these individuals from the premises.

Back in 2001, the Board found an 8(a)(1) violation against the casino, but the casino petitioned the Court of Appeals which remanded the case for further consideration.  In 2007, the Board accepted amicus briefs and held oral argument, as a result of which, it has now announced this new standard. 

The Board opines here that the contractor's employees do not fit neatly into either category if forced to resolve their rights by considering them as employees of the property owner under the long-standingRepublic Aviation standards or by considering them as non-employee organizers subject to the standards set forth in the Lechmere case.  The Board, nevertheless, viewed the contractor's employees more like employees of the property owner in its analysis.  The Board certainly found compellingthe evidence here that the contractor's employees worked throughout the casino's premises, patronized the same break areas, and provided room service to the casino's hotels. 

The Board recognized that the contractor's employees' Section 7 interests were most compelling, as they were involved in organizing themselves directly.  Balancing this against the property owner's property and managerial rights, the Board concluded that the property owner's interests must give way.  While acknowledging that the property owner absolutely had state property law rights to exclude the off-duty individuals from its property, the Board suggested that the property owner failed to fully protect those rights against the contractor's employees' interests by obtaining language in its leases to address the issue.

Member Hayes filed a dissent asserting that the majority's analysis "pays only lip service to the owner's property interests, and gives no consideration to the critical factor of alternative means of communication."   He would have found a violation only where the casino ejected off-duty employees from the porte-cochere area near the casino's main entrance.     

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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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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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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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The Acting General Counsel yesterday issued General Counsel Memorandum No. 11-05, narrowing the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations. Last year, In Operations Memorandum 10-13(CH), prior General Counsel Ronald Meisburg identified tensions between the Board’s Spielberg/Olin deferral standards, D.C. Circuit Court of Appeals jurisprudence, and the recent Supreme Court case, 14 Penn Plaza, LLC v. Steven Pyett, 129 S. Ct. 1456 (2009). This earlier Memorandum invited a re-evaluation of the Board’s standards in light of these decisions.

Acting General Counsel Solomon’s Memorandum now announces a new approach:

Specifically, in Section 8(a)(1) and 8(a)(3) statutory rights cases, the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator. This includes not only cases involving Section 8(a)(1) and 8(a)(3) discipline and discharge, but also all other cases involving Section 8(a)(1) conduct that is subject to challenge under a contractual grievance provision.

The Memorandum urges the Board to impose the burden of proof for deferral upon the party urging deferral:

Thus, the party urging deferral must demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board should, as now, defer unless the award is clearly repugnant to the Act.

Finally, the Memo acknowledges that changes in Regional Office investigation procedures are necessary in light of these developments:

To prevent any such difficulties in future cases raising allegations of Section 8(a)(1) and 8(a)(3) that will be deferred under Collyer, particularly as a heightened standard would likely make at least some additional arbitral awards inappropriate for deferral, Regions should take affidavits from the Charging Party, and from all witnesses within the control of the Charging Party, before they make their “arguable merit” determination in considering Collyer deferral.

Only then, if the Region determines there is arguable merit to the charge and the other Collyer requirements are met, should the Region defer the charge. If the Region concludes the charge is without merit, of course, it should dismiss the charge, absent withdrawal.

In all pending and future cases where the Region has deferred a charge to arbitration under Collyer, when the arbitral award issues, the Region must review the award to determine whether post-arbitral deferral is appropriate. The Region should determine if the party urging deferral can demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue; and (3) the arbitral award is not clearly repugnant to the Act. Upon making its determination, the Region should submit the case to the Division of Advice, along with the Region’s recommendation as to whether to defer.

As a result, even in cases where the underlying merits are subject to pending or past grievance and arbitration proceedings, the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met.  Employers must adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and, their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.

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In late 2010 and earlier this month, we observed that the NLRB was getting more aggressive in its enforcement of settlement agreements by including onerous "Default" or "Performance" language in some agreements.  This language generally required the employer to agree that in the event of alleged non-compliance with the settlement, all factual allegations in a re-issued Complaint would be deemed admitted.  

Now it's official. The Acting General Counsel has made this language mandatory. In General Counsel Memorandum No. 11-04 issued last week, Acting GC Lafe Solomon has directed Regional Offices to include the following language in all future settlement agreements:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party/Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

One might expect that insistence on this language in a settlement agreement would make an employer far less willing to settle a case.  By requiring a waiver of the employer's rights to defend itself on the substance of the charges, this language puts an employer in a more precarious position after settling than it is in before.  It significantly raises the stakes in a compliance proceeding.

The Board would argue, however, that is the point -- that a charged party is more likely to abide strictly to the terms of the settlement agreement, and not risk being charged with non-compliance.  Of course, compliance disputes may be generated by anyone: the Board, individual employees, or a union.  This certainly provides an agitator or a union pursuing an aggressive organizing strategy with an additional potent weapon.

The Board asserts that its review of Regions historically using this language at their discretion have had higher rates of success both settling and litigating cases:

five Regions routinely propose[d], and three of those Regions regularly insist[ed] upon, inclusion of default language in all informal settlement agreements. With a settlement goal of 95%, these five Regions achieved settlement rates in FY 2009 of 96.9, 98.3, 95.6, 96.5 and 93 percent, respectively, and in FY 2010 of 100, 96.2, 94.2, 91.6 and 95.1 percent, respectively. These Regions also achieved litigation “win rates” in FY 2009 of 100, 75, 83.3, 90 and 93.3 percent, respectively, compared to a national rate in FY 2009 of 89.9 percent, and achieved litigation “win rates” in FY 2010 of 100, 100, 87.0, 87.5 and 100 percent, respectively, compared to the national rate in FY 2010 of 91.4 percent.

The Board thus continues its trend of strengthening remedies and enforcement options available to it to enforce the National Labor Relations Act.  We should not expect these developments to end anytime soon.

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The National Labor Relations Board was busy during the last week of 2010, issuing twelve published decisions and a number of additional unpublished decisions in representation cases.  Interesting decisions handed down last week include:

• Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010):  In this straightforward 8(a)(1) interrogation and discharge case, the Board approved the ALJ's Recommended Order directing electronic posting of the remedial notice via the employer's intranet system.  While the ALJ granted this remedy, sought by the General Counsel, prior to the Board's recent J. Picini Flooring decision, the Board (without Member Hayes' agreement) found it consistent with its current position and modified the Order accordingly.  The evidence found by the ALJ to justify this new remedial approach was that the employer maintained an internal "intercom" system, similar to e-mail, which it used to announce to its hair stylists things like staff meetings.  Expect electronic posting to continue to trend toward the presumed appropriate remedy.

• Sidhal Industries, LLP, 356 NLRB No. 67 (Dec. 30, 2010):  This decision involved another judgment granted pursuant to the more aggressive "performance" language being included by Regional Offices in connection with settlement agreements.  The agreement settling discrimination and refusal to bargain allegations in this case included a lengthy provision indicating that non-compliance with the settlement would result in re-issuance of the complaint, to be deemed admitted by the Board, leaving only the issue of compliance or non-compliance for dispute.  The Board here found non-compliance and, as a result, entered judgment on all the complaint's allegations. 

• New England Confectionary Co., 356 NLRB No. 68 (Dec. 30, 2010):  Chairman Liebman, and Members Becker and Pearce, found a number of 8(a)(1) violations in promises of better benefits made by supervisors to encourage a decertification effort.  The Board dismissed a number of allegations, however, that the employer's H.R. Generalist violated the Act by soliciting petition signatures and promising employees benefits.  The Board found that the H.R. Generalist lacked "apparent authority" to speak for management, as her role was largely administrative and not managerial in nature.

More information regarding these and the Board's other recent decisions is included in the Board's Weekly Summary of Cases.

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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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The Employee Free Choice Act appears completely dead -- not just "mostly dead," as it is unlikely to make the lame duck Congressional agenda as many feared.  Yet, the National Labor Relations Board continues its recent efforts to expand traditional Board remedies administratively without the passage of new legislation. 

Today, Acting General Counsel Lafe Solomon issued a Memorandum extending an initiative he announced on September 30, 2010 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.

The new Memorandum indicates that In these cases remedies should be crafted to: “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice." For example, the memo suggests that regional offices include in complaints, and in 10(j) petitions, demands for unique remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees.

Coincidentally or not, the Board continues to phrase its announcements in language consistent with the suggestion that it is administratively pursuing at least some of the end results EFCA failed to accomplish legislatively.  The Acting GC's intro to this Memorandum begins:

The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful. Accordingly, as Acting General Counsel I have placed a priority on ensuring that the Agency protects employee freedom of choice with regard to unionization by obtaining effective remedies for employers’ unlawful conduct during union organizing campaigns.

This is not likely to be the final effort along these lines. 

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The Employee Free Choice Act provision which garnered the least attention during the legislative push for the bill during the last several years was the section expanding remedies under the National Labor Relations Act.  After EFCA's future prospects appeared particularly dim, back in February 2010, we speculated in a Bloomberg Law Reports piece that the National Labor Relations Board would seek to expand traditional Board remedies administratively without the passage of new legislation.  That prediction is now increasingly coming to fruition.

In August, a District Court Judge granted a Board-sought preliminary injunction in a refusal to bargain case.  In October, the Acting GC announced a new initiative to increase significantly the Board's pursuit of preliminary injunctive relief in so-called "nip-in-bud" cases.  Later that month, the Board issued a decision awarding compound interest, changing the long-standing practice of ordering simple interest awards.  Finally, another October decision expanded the traditional Notice-posting remedy to include electronic posting under appropriate circumstances.

Now, a late November decision in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010), casts light on an increasing trend in connection with the settlement of Board cases.  The Employer settled a number of Unfair Labor Practice (ULP) allegations with the Board, which settlement included an obligation to pay five (5) make-whole payments to a particular employee.   The Employer failed to comply with that obligation, and the Board took further action. 

But the case did not go the typical "compliance" route because the Employer had agreed to a settlement agreement which included the following language:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party and after 14 days notice from the Regional Director of the National Labor Relations Board of such noncompliance without remedy by the Charged Party, the Regional Director may reissue the complaint dated February 25, 2010 in this case. The General Counsel may then file a motion for default judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that the allegations of the reissued complaint may be deemed to be true by the Board and its answer to such complaint shall be considered withdrawn. The Charged Party also waives the following: (a) filing of answer; (b) hearing; (c) administrative law judge’s decisions; (d) filing of exceptions and briefs; (e) oral argument before the Board; (f) the making of findings of fact and conclusions of law by the Board; and (g) all other proceedings to which a party may be entitled under the Act or the Board’s Rules and Regulations. On receipt of said motion for default judgment, the Board shall issue an order requiring the Charged Party to show cause why said motion of the General Counsel should not be granted. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the Board’s order and U.S. Court of Appeals judgment may be entered thereon ex parte.

(Emphasis supplied).

In Deja Vu, the Board ordered the immediate payment of the additional financial amounts plus daily compounding interest.  We have been aware of discretionary efforts by Regional Offices to obtain tough "performance" or "compliance" language like this in the past -- particularly in cases involving recalcitrant employers.  But to the extent this fits neatly into a developing trend, employers should continue to watch efforts by the Board to expand and strengthen traditional Board remedies in all cases.

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We've received a lot of requests to discuss the NLRB's issuance of a Complaint in the American Medical Response case.   Gathered here are a number of the media reports in which we've been quoted following the October 27, 2010 issuance of Complaint.

In "Chilling Worker Speech on Facebook," in Human Resource Executive magazine, writer Tom Starner gave LaborRelationsToday some great recognition, and spoke to yours truly along with consultant Nate White and fellow attorney Michael McAuliffe Miller:

Both Miller and Borden recommend employers review their Internet and social-media policies to determine whether they are susceptible to an allegation that such policies could reasonably tend to chill employees in the exercise of their rights to discuss work-related issues such as unionization, wages and work conditions.

Labor lawyers Eric Meyer, Irving Geselwitz, Philip Gordon and I were quoted in a Crain's Detroit Business piece, "Facebook Suit Highlights Policies on Social Media." 

And finally, Inc. magazine asks "Is Your Social Networking Policy Illegal?"  My thoughts expressed there will be no surprise to regular LRT readers:

"There was a case based on a similar policy that came up about two years ago and the NLRB general counsel declined to issue a complaint," says Seth Borden, a partner in the Labor and Employment group at McKenna Long & Aldridge LLP. Now, he says, the Board has a new general counsel. "The Board has signalled a willingness to take a broader view of employees' rights."

Companies should be concerned about this new direction, he says. "This is the first prominent instance of social media being viewed through the prism of traditional labor law," he says. "It's the tip of the iceberg."

Our previous LRT posts on this case are here and here, and on September 28, 2010, the National Law Journal ran "Labor Disputes Arising out of Social Media," which discussed the Board's agenda on these issues.

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There has been significant reporting of Region 34's issuance of Complaint in the American Medical Response of Connecticut, Inc. case since our post last week.  We thought it might be helpful to compile some of the information and resources here.  I previously posted a copy of the Complaint in this case, and my September article in the National Law Journal, "Labor disputes arising out of social media," in this post.

Astute employment lawyer, social media observer and blogger Daniel Schwartz found and Tweeted this excellent piece on the case from CNET: "Yes, insults on Facebook can still get you fired."

Last night, NLRB Acting General Counsel Lafe Solomon took to the airwaves at NPR, and on Fox-5 News in D.C. to discuss the case:

Finally, just moments ago, National Journal ran this article, "Facebook Urges User Responsibility," noting the social media giant's own thoughts on the case, including:

"Just as in your offline life, there are some people who you want to be more open with than others, which is why Facebook gives you complete control over how you share information," Facebook spokesman Andrew Noyes said Tuesday evening. "People who use Facebook should ensure their sharing settings are consistent with the way they conduct themselves in the real world."

An administrative law judge is scheduled to hear the case on January 25, 2010.  Check back for updates, as this is certain to continue to garner widespread attention.

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In J.Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), Members Becker and Pearce joined Chairman Liebman in holding that “respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.”  The decision expands the customary Board remedy of posting paper notices in the workplace, and is a clear sign of this Board’s commitment to adapting NLRB mechanisms and law to evolving technologies in the workplace.

In a September 28, 2010 article in the National Law Journal, I suggested that Chairman Liebman was not content to allow the NLRB to be viewed as the “Rip Van Winkle of administrative agencies.”  Chairman Liebman wrote forcefully in the dissent to the 2007 Register-Guard case:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

The decision in J.Picini Flooring continues in that vein:

The ubiquity of paper notices and wall mounted bulletin boards, however, has gone the way of the telephone message pad and the interoffice envelope.  While these traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.  Electronic communications are now the norm in many workplaces….

Accordingly, going forward, the Board will now require remedial notices to be distributed by email if an employer customarily uses email to communicate with its employees, and by other means of electronic communication which are so used by the employer. Questions as to whether some type of electronic communication is necessary will be addressed at the compliance stage.

Member Hayes filed a dissent to the decision, asserting that the Board has transformed “an extraordinary remedy into a routine remedy.” 

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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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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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