Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

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Two members of the National Labor Relations Board recently held that employers may not require employees to enter into arbitration agreements, as a condition of employment, that waive the ability to pursue class or collective claims. The Board’s ruling does not sound the death knell for class action waivers, however, as many Plaintiff’s lawyers have touted.

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On Monday, the National Labor Relations Board swore in three new Board Members.  The NLRB now has a full Board with five Members for the first time since August 2010.  The new members -- Sharon Block, Terence F. Flynn, and Richard Griffin -- were named by President Obama on January 4, 2012, as recess appointments. 

Their membership on the Board will likely be a continuing source of political friction and legal controversy since the Senate was not formally in recess at the time the President announced their appointments.  The U.S. House of Representatives Education and Workforce Committee, led by Republican Rep. John Kline (Minn.), is investigating the appointments and has asked the NLRB and the White House to provide information about the qualifications of the new Members and the President’s legal authority to make the appointments.

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In a political shocker, President Barack Obama announced Wednesday that he will make recess appointments to immediately fill three NLRB Board Member vacancies.  President Obama’s appointees include two Democrats, union lawyer Richard Griffin and Labor Department official Sharon Block, and one Republican, NLRB lawyer Terence Flynn.

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President Barack Obama recently announced that he intends to nominate Sharon Block and Richard Griffin to the National Labor Relations Board (“NLRB”).

Block and Griffin (both lawyers) have significant experience working to advance organized labor policies.  Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  She was previously a senior labor counsel for the Senate Health, Education, and Labor and Pensions Committee and worked for Senator Edward Kennedy during that time.  Block also served at the NLRB as an attorney.  Griffin is the general counsel for the International Union of Operating Affairs, and he is a member of the board of directors for the AFL-CIO Lawyers Coordinating Committee.

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We reported last week that the NLRB's new "ambush election rule," as it is called by some critics, is facing a federal court challenge from a coalition of business groups led by the U.S. Chamber of Commerce.  The filing of that litigation has interfered with the Board's plans to implement its employer notice posting rule, issued earlier this year.  That rule -- which requires private-sector employers covered by the NLRA to post a notice that tells employees about their right to unionize, gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions and complaints -- has also been challenged in the Chamber's lawsuit.  The NLRB earlier had postponed implementation of the rule until January 31, 2012.  The judge, however, recently told the parties to the suit that she did not think the Board's January deadline would allow them sufficient time to argue the merits of the rule.

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On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

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This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

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Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted.  In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process.  These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant.  If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.

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The NLRB announced today that the agency is postponing the deadline for the new employee rights posters from November 14 to January 31 to “allow for further education and outreach.”

We’ll continue to monitor and advise, particularly as to how the various court challenges may affect the agency’s actions on this issue.

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The focus on social media by the National Labor Relations Board (“NLRB” or the “Board”) continues as evidenced by its recent report issued by Acting General Counsel Lafe Solomon.  The report discusses fourteen social media cases that were decided by the Board after Regional Directors submitted requests for advice to the Board’s Division of Advice.  The cases highlighted by Solomon give some insight to how the NLRB will handle various social media issues in the future.

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The NLRB announced today it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act (“NLRA”). A Fact Sheet  is also available. The rule is scheduled to be published in the Federal Register on August 30, 2011. It is effective November 14, 2011.

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First introduced in the Employee Free Choice Act as an alternative to card check, the quickie election has been brought back as part of the National Labor Relations Board’s (“NLRB”) rulemaking process.  On June 21, 2011, the NLRB, with Board Member Brian Hayes dissenting, issued a Notice of Proposed Rulemaking suggesting numerous changes to the procedures governing union elections.  These proposed changes are significant and if accepted would both alter the landscape of secret ballot elections and place employers at a severe disadvantage.

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The National Labor Relations Board (“NLRB”) handed down an opinion last month, in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 361 NLRB No. 162 (2011), that constitutes a victory for union members and giant inflatable rats everywhere.  Inflatable rats have been used by unions to protest employers’ use of non-union (or “rat”) workers since as early as 1991.  Giant inflatable rats have been the subject of lawsuits in the past, and a previous case has made it all the way to the Supreme Court of New Jersey.  See State v. DeAngelo, 197 N.J. 478 (2009).  The inflatable rat in question was 16 feet tall and 12 feet wide.  It was located 100 feet from the entrance of a hospital, run by a neutral company, whose independent contractor subcontracted work to a company which utilized non-union workers. 

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In October 2010, the National Labor Relations Board (“NLRB”) raised the eyebrows of employers and observers when its Hartford, Connecticut Regional Office issued an unfair labor practice complaint against an employer after it allegedly terminated an employee for posting unflattering statements about her supervisor on Facebook.  The NLRB and the company settled the complaint in February 2011, on condition that the company revise its rules so they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.  The employer also agreed that it would not discipline or discharge employees for engaging in such discussions.

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The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action. The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues. 

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In a recent case called Southwest Regional Council of Carpenters (New Star General Contractors, Inc.), the National Labor Relations Board upheld a fairly common Union street tactic of calling attention to the Union’s dispute with a so-called “primary” employer by displaying a large banner in front of the worksite of a “secondary” employer who happens to be utilizing workers from the “primary” employer. Typically, the dispute between the Union and the “primary” employer is over the “primary” employer’s failure to use Union workers or pay Union-scale wages. By publically advertising its dispute with banners in front of the “secondary” employer, the Union hopes to “shame” the “secondary” employer. The NLRB held that hanging a banner outside in front of the “secondary” employer’s worksite with this clear purpose of simply shaming the “secondary” employer does not constitute what is known as “signal picketing” (sending a signal or inducement to workers at the “secondary” employer to engage in any kind of work stoppage or slowdown), nor does it constitute any kind of an unlawful threat, restraint or coercion against the “secondary” employer. See generally Southwest Reg’l Council of Carpenters (New Star Gen. Contractors, Inc.), 356 N.L.R.B. No. 88, 2/3/11 (released 2/4/11) (New Star). The NLRB’s decision appears consistent with a series of decisions in the fall of 2010 in which the Board determined that a stationary display set up by a Union in front of the worksite of a “secondary” employer does not constitute unlawful picketing of the “secondary” employer because a stationary or fixed sign does not include “the element of confrontation.” See e.g. Carpenters & Joiners of America (Eliason & Knuth of Arizona, Inc.), 355 N.L.R.B. No. 159 (2010) (Eliason).

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In response to President Obama’s re-nomination of Craig Becker to the National Labor Relations Board, all forty-seven Republicans in the U.S. Senate submitted a letter to Mr. Obama on February 1 urging him to withdraw Becker’s nomination.  Becker’s July 2009 nomination to the Board failed in the Senate in the spring of 2010, but the President gave Becker a controversial recess appointment that allows him to serve from his swearing-in on April 5, 2010 until the end of the Senate’s 2011 session, despite the Senate’s rejection of his nomination.  President Obama’s re-nomination of Becker, if successful, would allow Becker to serve until December 16, 2014.

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On January 5, 2011, the White House announced President Obama’s intent to nominate Lafe E. Solomon to be General Counsel for the National Labor Relations Board and Terence F. Flynn to be a Board Member.

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On December 21, 2010, the NLRB issued a press release and fact sheet announcing its intention to publish in the Federal Register a proposed “rule” requiring virtually all private sector employers to post in the workplace a Notice to employees outlining their rights under the National Labor Relations Act. The proposed poster was published in the Federal Register on December 22, 2010.   Interested parties will have sixty (60) days from December 22nd to respond with comments regarding the proposed rule.

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Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.

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We’ve been talking about the “new” NLRB and its pro-union slant all year, so its latest procedural revisions should not come as a surprise to you. On September 30, 2010,  NLRB Acting General Counsel, Lafe Solomon, announced an initiative to “strengthen and streamline the Agency’s response to charges filed when employees are fired in the midst of a union organizing campaign.”

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Hunton & Williams partners Laura Franze and Roland Juarez recently participated in a panel of California employment law experts to discuss various cutting edge issues in labor and employment law, including the impact of social media, new trends in non-compete agreements and trade secret protections, the ripple effect of the Ninth Circuit's ruling in Dukes v. Wal-Mart, and other related topics.

Read the full article here.
 

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The Eleventh Circuit recently ruled that an employee had standing to seek an injunction against his employer and a labor union over alleged violations of the Labor Management Relations Act (“LMRA”) in the union organizing context.  In Mulhall v. UNITE HERE Local 355, Hollywood Greyhound Track, Inc., d.b.a. Mardi Gras Gaming, (No. 09-12683, September 10, 2010), the Eleventh Circuit reversed the lower court’s dismissal of the case, overruling its decision that the employee lacked a cognizable injury, and remanded the case for further proceedings.

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How would you handle the following situation?  You have recently learned that one of your employees “posted” on Facebook complaining about the company, specifically commenting on work conditions and wages.  Several other employees have made comments on this employee’s Facebook page and a discussion has ensued.  These comments and complaints are damaging to the company’s reputation and portray the company in a negative light. 

Your natural inclination may be to instruct the employee to take these comments down and prohibit him from continuing to use Facebook to discuss work issues.  Yet, unions may be looking for you to do exactly that so they can try to file an unfair labor practice charge with the National Labor Relations Board (“NLRB”).  Employers have the right to protect their reputations and to prevent the possible disclosure of confidential information.  But unions may try to construe the above situation and the employer’s reaction to it as interference with an employee’s right to engage in concerted activity, a violation of Section 8 of the National Labor Relations Act (“NLRA”).  Notably, such an argument by unions could apply to both unionized and non-unionized employers. 

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Pundits in the labor arena have speculated for months that the Administration’s recent appointment of union-friendly Board candidates like former SEIU Assistant General Counsel Craig Becker could have a significant impact on the state of Board precedent in future cases.  If the Board’s highly anticipated recent decision in United Brotherhood of Carpenters and Joiners of America, 355 NLRB No. 159 (“UBC”), is any indication, the pundits may be right.

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Employers who thought the hotly contested issue of card check recognition had been side-lined along with EFCA should take notice of a recent decision announced by the National Labor Relations Board (the “Board”).  As predicted earlier in light of its new composition, the Board has begun to lay the groundwork to overturn established precedent giving employees the right to demand a secret ballot election in the face of voluntary card-based union recognition.

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The NLRB has issued an RFI (Request for Information) to identify firms who can provide the means for employees at businesses across the country to "vote" electronically on whether they want union representation.  The idea would be that, sitting in the comfort of their own home . . . or the union hall, employees can use a computer, telephone or some other electronic means to register their choice on election day.  This method of voting, so the argument goes, avoids the "intimidation" employees may feel when voting in a voting booth by secret ballot at their place of employment.  Not only that, it would save the NLRB money by avoiding the need to send field agents to the companies where elections are scheduled.  No ballot, no voting booth, no assurance of privacy, and no protection from someone looking over the employee's shoulder, or worse, as she votes.  And electronic voting can be ordered administratively by the agency in the dead of night rather than through legislation undertaken in the light of day.

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Two significant developments last week affect the functioning of the country's federal agency in charge of overseeing union-management relations. The first is a decision by the US Supreme Court and the second is the resignation of the agency's general counsel effective June 18th.

As a result of political disagreements over nominations to fill vacancies on the National labor Relations Board, the Board operated with only two of its five members during 2008, 2009 and into 2010.  During that time, the two members decided almost 600 cases (though most were not particularly controversial from the standpoint of illuminating policy or setting precedent).  On June 17, the Supreme Court ruled in New Process Steel v. National Labor Relations Board, No. 08-1457, that the two members did not have the authority to decide those cases because they did not constitute a proper quorum under the National Labor Relations Act.  Instead, the Court ruled that at least three sitting Board members were required for the NLRB to act.  The ruling nullifies the decisions made in all 600 cases and effectively remands the cases back to the Board for re-adjudication.

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The NLRB's General Counsel, Ron Meisburg, recently announced his anticipated resignation, effective June 20, 2010.  Meisburg's departure now frees President Obama to appoint Meisburg’s successor.  While a number of names as replacement GC have surfaced, no clear front runner has emerged.

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In yet another pro labor move under the Obama administration, the National Mediation Board (“NMB”), which oversees labor affairs of airlines and railroads, has issued a final rule that will make it easier for unions to organize airline and railroad employees.  Under the new rule, unions must obtain votes from a majority of all workers who cast ballots in order to be recognized.  This is a significant change from the old rule, which had governed these elections for the past 76 years.  In the past, unions had to obtain votes from a majority of all workers eligible to cast ballots in order to be recognized.  Essentially, the old rule allowed workers who did not cast a ballot to effectively count as a “no” vote.  As a result, in most cases the new rule will decrease the number of votes unions must obtain to win recognition.  Most companies, which are governed by the National Labor Relations Act, follow the same majority requirements as the new rule.

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Andrew Stern’s sudden resignation as International President of the Service Employees International Union (“SEIU”) took the labor world by surprise and sparked debate about his legacy and the future of the nation’s largest and most politically powerful labor union.  The selection of SEIU Executive Vice-President Mary Kay Henry as his successor has sparked an equally intense debate about the direction she is likely to take SEIU in the future.  Many had assumed that Anna Burger, SEIU’s Secretary − Treasurer and Chair of Change to Win − not to mention Stern’s longtime protégé − was all but guaranteed the job.  However, Henry’s candidacy grew support among the members of SEIU’s Executive Council when she promised to “heal rifts” within the union caused by internal debate over Stern and the long-term viability of his organizing philosophy. The SEIU Executive Council’s rejection of Burger seemed to signal a desire at the top of SEIU for a genuine change of direction.  Yet, in the days following her election, Henry has sent mixed signals about her true intentions.

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The Wall Street Journal calls him “labor’s biggest weapon.”  His nomination to the National Labor Relations Board prompted Senator John McCain to refer to him as “probably the most controversial nominee that I have seen in a long time.”  When his nomination stalled in the Senate after a heated partisan debate, President Obama was forced to make a rare recess appointment to reserve his position on the Board.

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President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

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In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

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National Labor Relations Board (NLRB) Nominee Craig Becker needed 60 Senate votes to overcome the Republican-led filibuster blocking his confirmation, but he only received 52 votes on Tuesday. Two Democrats, Sen. Blanche Lincoln (Ark.) and Ben Nelson (Neb.), went against their party to vote him down in the cloture vote, which failed 52-33.

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On Tuesday, February 4th, the United States Senate Health, Education, Labor, and Pensions (“HELP”) Committee called a rare hearing to question Craig Becker, President Barack Obama’s nominee for the National Labor Relations Board (“NLRB”). While Becker was approved by the HELP Committee last year in a 15-8 vote, Arizona Senator John McCain (R.) placed a hold on his nomination, keeping a Senate vote from taking place. Therefore, the White House resubmitted his nomination and the Committee voted on Becker again yesterday, before a confirmation vote in the full Senate.

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On December 24, 2009, the National Labor Relations Board ("NLRB") issued a revised version of its Case Handling Manual (Part One).  For those inside the NLRB, the Manual provides guidance on various internal policies and procedures for enforcement proceedings.  For those outside the NLRB, the Manual not only states how the agency is likely to deal with issues that arise during such proceedings, but also provides insight into the agency’s enforcement priorities.  Part One (the part recently revised) covers unfair labor practice (“ULP”) charges, but also includes sections that apply to representation elections and compliance proceedings as well.

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On December 24, Craig Becker’s nomination to the NLRB ran into a significant obstacle when the Senate returned the nomination to the White House for reconsideration.

Becker, who works for the Service Employees International Union, was nominated by the President earlier this year to fill one of the two vacant Democratic seats on the NLRB.  There has been significant controversy surrounding his nomination due to what critics describe as his extreme, some say radical, pro-union views concerning possible changes to the nation’s labor laws.  The nominations of Democrat Mark Pierce and Republican Robert Hayes were both held over by the Senate for consideration during the next term, indicating that both are likely to be confirmed.  

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Fairly or not, America’s commercial banks have been vilified by many as the cause of the nation’s financial meltdown. The CEOs of America’s most venerable financial institutions have been called to Washington and excoriated by an angry Congress, and on talk shows across the nation their salaries have been contrasted with those of hourly-paid financial workers. The new administration has called for tighter regulation of the financial sector and even appointed a “pay czar” to review the compensation structures of banks that have received bailout funds. While most of the attention over the banking crisis is focused on whether, and to what extent, the industry is in need of reform, far less attention has been placed on the veritable “perfect storm” the current political and economic climate has created for unions eager to make inroads into an industry that has been largely untouched by big labor.

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Last week, Secretary of Labor Hilda Solis announced the Department of Labor's planned launch of an ambitious new public awareness campaign called "We Can Help."  The campaign, set to debut in early 2010, is designed to help inform workers about their rights under federal wage and hour laws.

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In one of the largest back pay awards in the agency's history, the National Labor Relations Board (NLRB) concluded a settlement with five Michigan beer distributors that required the companies to pay $41 million in back pay to employees and the Teamsters. Findings from an ALJ, supported by the NLRB and the 6th Circuit Court of Appeals, concluded that the five companies colluded to systematically oust the union by separately engaging in bad faith bargaining, unlawfully declaring impasse, and then implementing their respective labor contracts with substantially lower wages and benefits.

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The Supreme Court agreed on November 2, 2009 to decide whether decisions of the National Labor Relations Board (NLRB) are valid if they were reached by only two members when other NLRB seats were vacant.  In New Process Steel, LP v. NLRB, the Seventh Circuit concluded that the NLRB’s two-member decision in that case was appropriate and binding.  The Supreme Court is expected to hold oral argument early next year and decide the case in June 2010. 

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