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Washington Labor & Employment Wire » National Labor Relations Board

NLRB Postpones Deadline for Employer Compliance With Notice Posting Rule


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The NLRB’s recent rulemaking requiring private employers to post workplace notices of federal labor law rights, originally slated to take effect on November 14, 2011, has been delayed until January 31, 2012. The postponement follows litigation by various business groups challenging the final rule, as well as efforts by Congressional Republicans to overturn it. The NLRB has denied any connection between the delay and the litigation, instead explaining that it postponed the effective date to provide small- and medium-sized businesses additional time to familiarize themselves with the rule’s requirements.

Applying its rarely-used rulemaking powers, the NLRB published a final rule on posting that applies to unionized and non-unionized workplaces alike. Addressing the objections of various commenters over an eight-month comment period, the final rule omitted requirements obligating employers to distribute notice electronically and incorporated new notice language clarifying the right of employees to abstain from engaging in statutorily-protected activity under the NLRA.

Following the publication of the final rule on August 30, 2011, the National Association of Manufacturers and the National Federation of Independent Business each filed suit against the NLRB, asserting that the rulemaking exceeded the Board’s authority and violated their First Amendment rights. The cases were consolidated in Nat’l Assoc. of Manufacturers v. NLRB, No. 1:11-cv-01629 (D.D.C.). The NLRB’s postponement followed a request of the presiding judge in that litigation, who asked that the Board push back the effective date so that she would have more time to evaluate the parties’ arguments. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have also challenged the final rule in a separate action on similar grounds, in federal court in South Carolina in Chamber of Commerce v. NLRB, No. 2:11-cv-02516 (D.S.C.).

Congressional Republicans have also challenged the final rule, introducing the “Workforce Democracy and Fairness Act” (H.R. 3094) in the House in October and challenging the rule, along with other recent Board actions in a recent hearing by the House Small Business Committee.

Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.


NLRB to Delegate Authority to Acting General Counsel

With the impending expiration of the term of recess appointee Craig Becker once Congress adjourns in December, the NLRB announced on November 3 that it will delegate authority over various litigation matters to Board Acting General Counsel Lafe Solomon. With the Supreme Court having invalidated nearly 600 rulings issued by a previous two-member Board between December 2007 and March 2010 in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), the NLRB policy would provide Solomon with the authority to carry out basic Board functions.Without a three-person quorum, New Process Steel prevents the Board from issuing decisions. Although delegation to Solomon does not include this adjudicative authority, it will allow Solomon to carry out other key functions, including certifying the results of secret ballot elections, seeking 10(j) injunctions against employers and unions over unfair labor practices, and conducting appeals to the Supreme Court.

Congressional Republicans and business interests have been highly critical of Solomon’s tenure as Acting General Counsel, most notably his role in challenging various new state constitutional amendments banning the use of the card check process in union elections and for his role in initiating an unfair labor practice complaint against Boeing Company for purportedly engaging in anti-union discrimination in locating a new non-union production line in South Carolina. Solomon has been nominated to a full term as General Counsel, but his nomination remains stalled in the Senate.

Upon expiration of Becker’s term, the Board will be composed of Democratic chairman Mark Pearce and Republican member Brian Hayes. The Senate has not taken action on the nomination of Republican NLRB lawyer Terence Flynn and Senate Republicans have repeatedly blocked Becker’s nomination to a full five-year term.


Implementation Date of New NLRB Posting Requirement Postponed until January 31, 2012


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The NLRB has postponed implementation of its new notice posting rule until January 31, 2012.  Under the rule, which was to take effect on November 14, 2011, most private sector employers will be required to post an 11-by-17 inch notice informing employees of their rights under the NLRA, regardless of whether they have a unionized workforce.  A copy of the new workplace poster was released by the NLRB last month and can be found here.

Since the rule was issued in August 2011, the NLRB has received inquiries demonstrating confusion about which employers are covered by the rule.  In response to the confusion, the Board postponed the implementation date “to allow for enhanced education and outreach to employers,” particularly small- and medium-sized businesses.  No changes in the form or content of the notice will be made.

The rule has also generated lawsuits challenging the Board’s authority to require employers to post the notice and to impose penalties for noncompliance.  Plaintiffs include the U.S. Chamber of Commerce, the National Federation of Independent Business, and the National Association of Manufacturers.

The NLRB Press Release regarding the delayed implementation date is available here


NLRB Issues Series of Pro-Union Decisions in Chairperson Liebman’s Final Week

In a series of controversial 3-1 decisions issued last week, the National Labor Relations Board further insulated collective-bargaining relationships from challenge by modifying the “recognition bar” doctrine and re-establishing the “successor bar” doctrine, and reduced the standards a union must meet to establish an appropriate bargaining unit.  All three decisions by the Democratic-controlled Board will have widespread implications for employers.

The first case, Lamons Gasket Co., 357 NLRB No. 72, reversed the Board’s 2007 decision in Dana Corp., 361 NLRB 434 (2007), and returned to prior policy which bars an election petition for a reasonable period of time after an employer voluntary recognizes a representative based on a showing of the representative’s majority status.  In Dana Corp.,  the Board modified the “recognition bar” doctrine by establishing a 45-day “window period” for employees to file a petition for an election after being notified that their employer had voluntarily recognized a union based on the union’s showing of majority support. 

In overruling Dana Corp., the Board returned to the policy established in Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), under which an employer’s voluntary recognition of a union, based on a showing of majority support, prohibits a petition for an election for a “reasonable period of time.”  The Board defined a reasonable period of time as no less than six months after the parties first bargaining session and no more than one year.   

The Board’s decision is intended to give new bargaining relationships an opportunity to succeed by barring challenges to that relationship.  The Board noted that the decision in Dana Corp., was based on a suspicion that “employee choices which must precede any voluntary recognition are often not free and uncoerced,” which the Board claimed to be “unfounded.”  In addition, the Board found that, during the past four years of practicing the Dana Corp. procedures, the procedures themselves proved unnecessary and in contravention of the Act.  

Chairman Liebman, and members Becker and Pearce joined in the order.  Member Hayes dissented, arguing that his colleagues “failed to provide any reasoned explanation why the policies they advocate are preferable to the reasonable policies established in the precedent they now overrule.”   

The second case, UGL-UNICCO Service Co., 357 NLRB No. 76, prohibits challenges to an incumbent union following a change in ownership by re-establishing the “successor bar” doctrine that was overturned in the 2002 MV Transportation decision.  The Board’s decision is the latest decision in a decades-long battle over the successor bar that evolved from the Board’s 1975 decision in Southern Moldings, Inc. and has been overruled on several occasions largely along partisan lines. 

The Board held that where a successor employer has recognized an incumbent union, the union is entitled to a “reasonable period of bargaining,” during which it has an irrefutable presumption of majority status.  As in the Lamons Gasket decision, the Board defined a reasonable period of bargaining to be no less than six months and no more than one year. Here, however, the Board established five factors to determine if a reasonable period has elapsed after six months: (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues that are being negotiated; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse. 

Member Brian Hayes vigorously dissented from the decision claiming that it protects “labor unions, not labor relations stability or employee free choice” by providing unions protections beyond what the law requires or provides.

Last, in Specialty Healthcare 357 NLRB No. 83 the Board created a heightened standard for any employer contending that employees in a petitioned-for unit should be placed in a broader bargaining unit.  Employers must now show that the petitioned-for unit shares an “overwhelming community of interest” with the larger unit of employees.  Specifically, where a union seeks an election in a unit of employees which is readily identifiable as a group, and where the Board finds that the employees share a “traditional community of interest,” the petitioned-for unit shall be deemed appropriate for bargaining unless the Employer can demonstrate that the employees it would add to the unit share an “overwhelming community of interest” with the petitioned-for unit. 

Member Hayes criticized the majority’s ruling for encouraging “union organizing in units as small as possible,” and for making it “virtually impossible” for employers to oppose such organizing efforts.  He warned that the resulting fragmentation of the workforce would lead to increased collective bargaining costs and compromise labor relations stability.


Chairperson Liebman Leaves NLRB, Return to Two-Member Board Possible In 2012

The National Labor Relations Board has been reduced once again to only three members when NLRB Chairperson Wilma Liebman departed from the Board when her term ended on August 27, 2011.  With the expiration of Liebman’s term and the impending expiration of Member Craig Becker’s recess appointment on December 31, 2011, the NLRB may soon face a return to the gridlock and inaction that plagued the Board between December 2007 and March 2010, when it was reduced to two members.

Although the two-member Board, which included Liebman, issued nearly six hundred decisions between late 2007 and 2010, its actions were summarily invalidated by the Supreme Court in New Process Steel L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010).  The Court held in New Process Steel that the Board must have a quorum of three members in order to fully exercise the Board’s powers.  In response to the decision, President Barack Obama recess-appointed Becker and Member Mark Pearce in July 2010 to return the Board to a full quorum.   With Liebman’s departure, Pearce has been designated as the new Board Chairman.   

Since that time, House and Senate Republicans have been highly critical of the Democratic majority Board’s recent rulemaking and adjudications, most notably a recent rule requiring employers to post notices of employees’ NLRA rights, a proposed rule that would affect the timing and process for union elections, and a NLRB case filed again Boeing, Inc. for allegedly relocating work from Washington State to South Carolina in order to avoid potential future strikes. In upcoming days and weeks, House Republicans are expected to vote on legislation to halt the Boeing case and overturn various Board rulemaking initiatives.

Meanwhile, the possibility of another powerless two-member Board has become increasingly likely, as Republicans are likely to prevent votes on Obama Administration nominees to replace Liebman and Becker and to keep the House of Representatives in pro forma session to avoid additional recess appointments. Although some legal experts have questioned the effect of House pro forma sessions on the Senate, which would actually vote on Board nominations, such a move arguably could prevent the Board from acting indefinitely. A return to two members would not prevent NLRB regional offices from conducting representation elections and handling unfair labor practice cases, but would halt any appeals of those cases to the Board, as well as the Board’s ability to issue final rules.

Liebman, whose term ended on August 27, 2011, was first appointed to the NLRB as a Member by President Bill Clinton in October 1997 and was confirmed the following month. President George W. Bush appointed her to two additional terms in 2002 and 2006. President Obama designated her Chairperson on January 20, 2009. The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. The fifth seat on the Board has been vacant since the expiration of former Member Peter Schaumber’s term in August 2010.   In January 2011, President Obama nominated Terence Flynn, who is currently Hayes’ Chief Counsel, to fill the vacancy created by Schaumber’s departure, but that nomination has not been acted on yet by the Senate. 


New NLRB Rule Will Require Most Private-Sector Employers to Post Notice


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 On August 30, 2011, the NLRB will publish a final rule in the Federal Register requiring private employers to post workplace notices of employee NLRA rights. The posting requirement, which takes effect on November 14, 2011 is intended to inform employees - both unionized and non-unionized - of their NLRA rights and is patterned after similar posting requirements under the Fair Labor Standards Act, the Family and Medical Leave Act, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. The rule will not apply to non-NLRA employers, including employers of railroad, airline, and agricultural workers. Although already required to post the similar Department of Labor notice, covered federal contractors will also be required to post the NLRB notice.

The final rule requires employers to post an 11-by-17 inch poster in the workplace and it also requires covered employers to post the notice on an internet or intranet site, if personnel rules and policies are customarily posted there. However, employers will not be required to distribute the posting by email, Twitter or other electronic means. The poster will be provided for download on the NLRB website and available at no charge in hard copy form at NLRB regional offices.  The NLRB announced that the posters will available by November 1, 2011.

Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.

An NLRB fact sheet regarding the new posting requirements can be found here.


NLRB’s Solomon Releases Report on Use of Social Media


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On August 18, 2011, NLRB Acting General Counsel Lafe Solomon released Memorandum OM 11-74, which reviewed recent case developments concerning the use of social media. With workers increasingly relying on social media to organize or raise concerns about working conditions, and employers increasingly relying on restrictive workplace social media policies in response, the Office of the General Counsel sought to provide guidance concerning use of these popular media, including Facebook, Youtube, and Twitter.

A review of 14 social media cases investigated by the Office of General Counsel that were submitted by NLRB regional offices to the NLRB’s Division of Advice for guidance, the report covered several issues relevant to the modern workplace. The cases under consideration included an examination of whether employee Facebook and Twitter postings were protected concerted activity, whether Facebook or Youtube videos of interviews with non-union workers could be unlawful and coercive, and whether various employer social media policies were lawful.

Nine of the 14 cases referenced in the report concerned Facebook or Twitter posts by employees, considering whether such postings were considered protected or concerted activity. In four of those cases, the NLRB’s Division of Advice concluded that employees engaged in protected concerted activity. In five, the Division found that the communication was not protected. In examining these cases, the Division applied its traditional, non-social media precedents. Whether a communication is protected depends not on whether it is communicated via Facebook versus via leaflet, but whether the employee acted in concert with or on behalf of other employees versus whether she acted only on her own behalf. The former is protected, the latter not.

In one case, the Division concluded four employees engaged in protected concerted activity where they posted on Facebook to defend a co-worker eventually terminated for “poor performance.” Even though the Facebook posting included profanity, the Division noted that this feedback, which was in response to a request from the co-worker prior to her termination meeting with management, “directly implicated terms and conditions of employment” and was “textbook” protected concerted activity. Similarly, in another case, the Division found protected concerted activity  where several restaurant employees complained about their employer’s withholding policies on Facebook and pledged to raise the issue at an upcoming meeting with management.

In contrast, the Division found no concerted activity where employees of another restaurant complained about their employer’s tipping policy on Facebook but never raised the issue with management. In other cases, the Division held that personal criticism of managers, on either Facebook or Twitter, were not protected where such comments expressed frustration but did not seek to engage co-workers in discussion or future meetings to address the concerns. 

Several cases held employer social media policies invalid for various reasons, including  but not limited to, categorical bans on depicting the employer in any media without advance permission or bans on “inappropriate” postings that employees “would not want their manager or supervisor to see.” The Division reasoned that these sweeping prohibitions threatened protected rights under Section 7 of the National Labor Relations Act, including criticism of employer policies or working conditions. The Division, however, upheld an employer media relations and public affairs policy that limiting employee contacts with the press, concluding that the rule was intended to prohibit employees from speaking to reporters on their own behalf, rather than to engage in protected concerted activity.

Finally, the report also addressed union coercion in a case in which union organizers visited a non-union jobsite and questioned the employees about their immigration status. The Division concluded that the videos, which were posted to Facebook and Youtube, were unlawful coercive conduct in violation of Section 8(b)(1)(A) of the NLRA.


ALJ Rejects Boeing’s Bid to Dismiss NLRB Unfair Labor Practice Complaint

On June 30, 2011, ALJ Clifford H. Anderson rejected Boeing Co.’s challenge to the controversial unfair labor practice complaint filed against it by the NLRB in April. The NLRB’s complaint, which has ignited a partisan firestorm, alleges that Boeing unlawfully transferred an aircraft assembly line from Washington State to South Carolina as retaliation for prior strikes by the unionized workforce in Washington State. The case will proceed to trial before the ALJ.

The case has drawn fierce condemnation by Congressional and Senate Republicans, Republican governors and state attorneys general, and right-to-work groups, who allege the case represents a frontal attack on right-to-work states. NLRB Acting General Counsel Lafe E. Solomon has defended the complaint, pointing to a number of specific statements made in the press by Boeing officials concerning the desire to set up the production line in a non-union setting. For example, one high-level Boeing official told the Seattle Times that “The overriding factor (in locating the work in South Carolina) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.”

In seeking dismissal of the unfair labor practice complaint, Boeing argued that the building a new production line for 787 Dreamliners in South Carolina did not represent a removal or transfer of work from Washington State, since the second production line had never been located in Washington State. Boeing further argued that the NLRB would have to - and could not - prove that any unionized Washington workers were adversely affected by the decision to build the production line in South Carolina. Additionally, Boeing argued that the comments made by its officials were taken out of context and that it only considered permissible factors in locating the production line in South Carolina.

In rejecting Boeing’s motion to dismiss the complaint prior to the NLRB General Counsel putting on evidence, the ALJ ruled that the NLRB General Counsel would have the opportunity to present evidence and make a showing of unlawful discrimination. The ALJ explained that it is unusual to dismiss an unfair labor practice complaint at such an early stage and ordered the trial to go forward. In addition, the ALJ also refused Boeing’s request to dismiss a costly potential remedy sought by the NLRB General Counsel - the transfer of the production line back to Washington State - and noted that Boeing had not yet set forth facts showing that the allegedly anti-union statements by its officials were taken out of context.


NLRB Issues Proposed Regulations to Expedite Election Process

In a proposed rule to be published in the Federal Register today, June 22, 2011, the National Labor Relations Board would streamline and expedite its election procedures. Stating a desire to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation,” the rule would move resolution of eligibility disputes to the post-election period, reduce the ability of parties to seek Board review in representation cases, shorten various existing filing deadlines, require employer disclosure of employee contact information, and allow the parties to make increased use of electronic filing. In setting forth these amendments, the Board’s Democratic-majority maintained that the regulations merely seek to reduce unnecessary litigation and undue delay - they would not require that representation elections be held within a specific number of days.

Brian E. Hayes, the NLRB’s lone Republican, expressed doubts that the majority was concerned about expediting the representation elections process. He disputed the claim that the process is too slow, and argued that the majority’s true aim was to aid unions in representation elections.

With the NLRB embroiled in a series of contentious partisan disputes, including the recent filing of union discrimination charges against Boeing, Inc. and legal challenges to state constitutional amendments outlawing the majority sign-up process, the reaction to the proposed rule was predictable. Union leaders praised it, noting that the reforms would bring faster, more transparent elections, while business interests and Republicans have characterized the proposed rule as a giveaway to labor.

Labor has long criticized the current representation election procedures, believing they allow employers to defeat union drives through delay and labor consultant-directed anti-union messaging. The shorter election periods would thus provide employers with a smaller target and would likely allow more representation drives to come to a vote. While unions win nearly two-thirds of representation elections coming to a vote, they fail in the majority of the representation drives they initiate. Employer opposition - primarily through coordinated messaging and education campaigns - leads roughly three in every 10 election drives to fizzle out prior to voting, either through union withdrawal or NLRB rejection of an election petition.

The NLRB will allow 60 days for written comments and will hold a public hearing on the proposed rule on July 18-19 in Washington, D.C.


NLRB Sues Arizona Over Secret Ballot Amendments; Suit Against South Dakota to Follow

On May 6, 2011, the NLRB filed suit against Arizona in federal court to overturn its recently-passed state constitutional amendment banning the use of the card-check process in union elections, asserting that the amendment creates an “actual conflict” with federal labor law and is therefore preempted. (NLRB v. Arizona, D. Ariz., case number not available, complaint filed 5/6/11).

In November 2010, voters in Arizona, South Dakota, South Carolina, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. 

Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret-ballot elections and voluntary recognition after a showing of majority support through the use of the card-check or majority sign-up processes. The state constitutional amendments would eliminate the latter pathway to union certification, preventing employers from entering into neutrality agreements with unions utilizing the card-check or majority sign-up processes and requiring NLRB-conducted secret-ballot elections in all circumstances.  

The NLRB initially threatened legal action against Arizona, South Carolina, South Dakota, and Utah in January 2011. In January 2011 letters to the attorneys general of those four states, NLRB Acting General Counsel Lafe Solomon warned that the state amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. In response, the state attorneys general asserted the legality of those amendments and pledged to defend them.  The NLRB’s May 6 news release announcing the suit against Arizona stated that the complaint against South Dakota will be filed “in the coming weeks.”

The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card-check or majority sign-up processes outside the voluntary recognition context.  This year, Senate Republicans have introduced the Secret Ballot Protection Act, a federal bill mirroring the state constitutional amendments that would ban the card-check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats controlling the Senate, the legislation is unlikely to have majority support in that body, let alone the 60 votes needed for cloture.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.