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Washington Labor & Employment Wire » National Labor Relations Board

Obama Announces Nominations for NLRB Member, General Counsel

On January 5, 2011, President Obama announced plans to nominate Terence F. Flynn to a vacancy on the National Labor Relations Board (”NLRB”) and Lafe E. Solomon to serve as NLRB general counsel.

Flynn, the current chief counsel to NLRB member Brian Hayes and former chief counsel to former NLRB member Peter Schaumber, has a depth of experience in cases arising under the National Labor Relations Act. A graduate of  Washington and Lee University School of Law and the University of Maryland, College Park, Flynn was previously a counsel in Crowell & Moring LLP’s labor and employment group from 1996 to 2003, with earlier stints at the law firms David Hagner Kuney & Krupin and Reid & Priest. Flynn would take Schaumber’s former seat, which was vacated upon the expiration of Schaumber’s term in August 2010.

Solomon, a long-time NLRB attorney, has served as acting general counsel since June 2010, when his predecessor, Ronald Meisburg, stepped down for a private sector position. Solomon has worked continuously for the NLRB for almost four decades, excepting a short break to attend law school at Tulane University in the mid-1970s. Starting as a field examiner in 1972, Solomon has served in a number of NLRB positions, including, most recently, head of the NLRB’s Office of Representation Appeals. In his time at the NLRB, he has worked for ten Board members, including current NLRB chairperson Wilma Liebman. General counsel is the Board’s highest-ranking legal position, with important investigative and prosecutorial functions, including supervising the NLRB’s regional offices, directing policy concerning the issuance of complaints, and enforcing Board decisions.

NLRB Proposes Posting Requirements Through Rarely-Used Rulemaking

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Utilizing its rarely-used rule-making authority, the National Labor Relations Board on December 21, 2010 announced a proposed rule that would require all private employers under its jurisdiction to post workplace notices of statutorily-protected employee rights. The proposed rule is intended to inform employees - both unionized and non-unionized - of their rights under the NLRA 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. Non-NLRA employers, including employers of railroad, airline, and agricultural workers, would not be affected by the proposed rule.

The proposed rule would require employers to post an 11-by-17 inch poster in the workplace and, where the employer regularly communicates electronically with its employees, distribute an electronic version of the poster. The poster would be provided for download on the NLRB website, as well as in hard copy form at NLRB regional offices. Under the proposed rule, failure to adhere to the posting requirements would be considered an unfair labor practice under NLRA Sec. 8(a)(1) and, in cases of knowing violations, could be considered evidence of unlawful anti-union sentiment in NLRB proceedings in which employer motive is at issue. The NLRB has clarified that, at least during a transition period, non-compliant employers unaware of the posting requirement would usually not face penalties if they promptly rectified the non-compliance.

The Board approved the proposed rule over the dissent of the Board’s lone Republican, Brian E. Hayes, who argued that the posting requirement is beyond the scope of the Board’s NLRA Sec. 6 power to issue “such rules and regulations as may be necessary to carry out the provisions” of the NLRA. 

The NLRB will be accepting comments on the proposed rule for 60 days following its publication in the Federal Register.  More information can be found here.

NLRB invites amicus briefing on anti-union discrimination in handbilling

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On November 15, 2010, the NLRB invited interested parties to file amicus briefs concerning employer discrimination in handbilling by nonemployees. In a unanimous opinion in Roundy’s Inc., 356 NLRB No. 27, (Nov. 12, 2010), the Board upheld an ALJ determination that a Wisconsin grocer committed an unfair labor practice by expelling peaceful nonemployee union handbillers from 23 stores. Determining that the grocer could not establish a property interest in the area of that handbilling permitting it to “interfere with, restrain, or coerce employees” engaging in protected concerted activities, the Board found the grocer’s conduct in violation of Section 8(a)(1) of the National Labor Relations Act (”NLRA”) at those 23 locations.

The invitation for further briefing, however, concerns two other locations where the grocer’s valid property interest in the location of the handbilling would be balanced against its employees’ right to engage in concerted activity. For these two locations, the ALJ determined that the grocer committed an unfair labor practice by engaging in anti-union discrimination - permitting access to various third parties while denying access to unions. However, the ALJ based his decision on Sandusky Mall Co., 329 NLRB 618 (1999), which was later overturned by the Sixth Circuit in Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001). While it is not uncommon for the Board to continue to adhere previous Board decisions overturned by federal courts, it requested further briefing on the continuing validity of its Sandusky Mall Co. decision.

In inviting briefs, the Board asked interested parties to weigh in on the continuing validity of the Board’s decision in Sandusky Mall Co., proposals for alternative standards for anti-union discrimination were the Board to depart from Sandusky Mall Co., and the relevance of the Board’s 2007 Register Guard decision to the analysis. 

The Board’s reference to Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), is of particular interest. In that case, the Republican-majority Bush-era NLRB determined that employees do not have a protected NLRA Section 7 right to use employer email systems to send union-related solicitations. The Board also held that the employer did not violate Section 8(a)(3) of the NLRA by disciplining an employee for sending emails soliciting union support pursuant to the employer’s policy forbidding the personal use of email. Applying a standard of whether the employer engaged in “unequal treatment of equals,” the Board held that the employer could enforce its policy against union activity even though it had not enforced the policy against other types of personal emails, including those concerning baby announcements or inquiries for sports tickets. Instead, the Board reasoned that the employer had not permitted analogous solicitations for non-union groups. Although the D.C. Circuit Court of Appeals later refused to apply the Board’s decision in full, it declined to explicitly overturn the “unequal treatment of equals” standard. 571 F.3d 53 (D.C. Cir. 2009).

The application of a similar “unequal treatment of equals” standard to the case currently before the Board could potentially allow the grocer to allow third party access to the properties in question while not permitting handbilling. Alternatively, the current Board’s 3 to 1 Democratic-majority could elect to revisit the Register Guard standard and determine that 1) union solicitation over employer email systems, like handbilling, is a protected Section 7 right, or 2) as in Sandusky Mall Co., apply a higher level of scrutiny in determining whether anti-union discrimination has occurred.

Amicus briefs must not exceed 25 pages in length and must be filed on or before December 13, 2010.

The NLRB’s press release can be found here.

Facebook Postings May Be Protected Speech Under NLRA

As announced by the NLRB on November 2, 2010, John S. Cotter, Acting Regional Director of the NLRB’s Hartford, CT office (Region 34), filed an unfair labor practice complaint on October 27 against ambulance service American Medical Response (”AMR”), alleging that it unlawfully terminated an employee for disparaging a supervisor on Facebook. The case, which is slated for hearing before an administrative law judge in January 2011, may redefine the scope of employer social media policies and enshrine the protections for concerted activity in a new and growing medium.

The complaint concerns a series of Facebook posts by AMR employee Dawnmarie Souza in November 2009, following the denial of her request for union representation at an investigatory interview regarding alleged misconduct. The postings, which were made on Souza’s own time on her own computer, related to denial of representation and subsequent threats of discipline arising out of the investigation and garnered additional comments from co-workers. The complaint alleges that upon learning of the posts, AMR terminated Souza under its broad internet policy, which forbids employees from making “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors” and posting photographs in any way depicting the company in internet postings.

The theory behind this unfair labor practice charge would not protect all employee Facebook, blog, and internet postings. Only those communications representing an employee’s right to engage in concerted activities under federal labor law - such as complaints about wages or working conditions - are protected. Under this theory, such communications are protected regardless of the medium of communication: the Facebook postings relating to concerted activity are treated the same way as oral communications or the distribution of printed materials such as flyers. However, Facebook and internet postings not related to concerted activity, or done on company time or equipment in violation of an appropriately-tailored internet policy, would not be protected.

In addition to the Facebook posting/concerted activity charge, the Acting Regional Director’s complaint alleges that AMR wrongfully denied Souza union representation in the investigatory interview and enforced an overly broad internet policy. AMR has denied the allegations and maintains that the termination was not based solely on the Facebook postings, and instead was the result of Souza’s repeated serious performance problems.

NLRB to Revisit Key Bush-Era Union Recognition Precedents

Signaling that reversal of two employer-friendly precedents of the George W. Bush-era NLRB is a serious possibility, the NLRB released a series of split decisions granting review over two groupings of cases concerning union recognition. In a series of 3-2 decisions dated August 27, but released on August 31, the full Board opened the door to revisiting two key precedents of the Bush-era NLRB:  Dana Corp., 351 NLRB No. 298 (2007) and MV Transportation, 337 NLRB No. 129 (2002), which themselves reshaped the recognition bar doctrine and the successor bar doctrine, respectively.

In its Dana Corp. decision, the then-majority Republican Board determined that under the “recognition-bar” doctrine, employees possessed a 45-day window to file a petition for an election or decertification after being notified that the employer has voluntarily recognized a union based on a union’s showing of majority support through union-authorization cards signed by employees (i.e., “card-check”). This represented a departure from a 1960s-era precedent that limited challenges after voluntary recognition for a reasonable period of time.

In Dana Corp., the Board held that a petition for a formal Board election is barred only where (1) unit employees have been notified via a Board-authorized posting of the employer’s recognition of the union and have been notified of their right to file decertification petitions or to support petitions of rival unions, and (2) no valid petition is filed within 45 days from the date of notice.  It is possible that the current majority Democratic Board would seek to return to the pre-2007 standard.

In its MV Transportation decision, the then-majority Republican Board held that, a rival union, the successor employer, or the employees themselves may challenge an incumbent union’s majority status in successorship situations. Under this decision, which overturned a Clinton-era NLRB precedent, St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), the majority status of the incumbent union in a successorship situation is tenuous, receiving nothing more than a rebuttable presumption going forward.  The majority Democratic Board could return to the St. Elizabeth Manor, Inc. standard, in which employees of a newly-acquired unionized employer could not seek to decertify the union until after “a reasonable period of time for bargaining” with the new employer has passed.

Democratic Members Craig Becker and Mark Pearce, and Chairman Wilma Liebman voted in favor of the decisions to review, which were issued over the vigorous dissents of Republican Members Peter Schaumber (on the final day of his term) and Brian Hayes. In advance of its review, the NLRB has invited interested parties to file amicus briefs to address both lines of cases.

NLRB Member Schaumber Leaves Office, Reducing Board to Four Members

After eight years of service on the NLRB, including a year as its chairman, Member Peter C. Schaumber left office upon the expiration of his second term on August 27, 2010.

Confirmed to the NLRB as a Republican appointee of President Bush in 2002, and reconfirmed for a second term in 2005, Schaumber, a Washington, D.C. labor arbitrator, served as chairman of the panel from March 2008 until January 2009. His term was notable for the prolonged 27-month period in which he served on a depleted two-member Board with Democrat Wilma B. Liebman, who succeeded him as chairman. The roughly 600 decisions issued by the two-member Board were invalidated by the Supreme Court in June 2010 in New Process Steel LP v. NLRB.  Schaumber, along with Liebman and President Obama’s three recent NLRB appointments, have begun to review and resolve these decisions.

Schaumber’s departure reduces the Board’s composition to four members, and leaves Member Brian Hayes as the sole remaining Republican Board member. 

NLRB to Review 96 Decisions Invalidated by Supreme Court

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In a July 1, 2010 press release, in response to the Supreme Court’s June 17 decision in New Process Steel v. NLRB, the NLRB announced that it will seek to review 96 cases currently pending in the federal appellate courts that had been issued by a two-member Board.  The Supreme Court’s decision invalidated nearly 600 decisions issued while the Board was operating with only two members.

The Board is seeking remand of the cases that were pending at the time of the New Process Steel decision - 6 cases in the Supreme Court and 90 cases in federal courts of appeal - and will consider each before a three-member panel comprised of Chairman Wilma Liebman and Member Peter Schaumber (who made up the two-member panel that initially ruled on each case), as well as a third member chosen at random from among Republican member Brian Hayes and Democrat members Mark Pearce and Craig Becker. Consistent with Board practice, the two members not selected to preside over a particular case may nonetheless elect to participate in the case.

With the June 30, 2010 swearing-in of Hayes, the Board has now been restored to its full compliment of five members.  Members Hayes and Pearce were confirmed on June 22 by the Senate.  Becker, who along with Member Pearce received a recess appointment in March 2010, has not been confirmed for a full term and will serve until the Senate adjourns its 2011 session.

It remains uncertain whether or how the Board will address the approximately 500 decisions of the two-member panel which were not challenged in the federal courts.

Pearce, Hayes Confirmed for Full Terms as NLRB Members

On June 22, 2010, the Senate, by voice vote, approved Mark G. Pearce (D) and Brian E. Hayes (R) for full terms as members of the NLRB, along with 63 other of President Obama’s stalled nominees. The deal followed a year-long impasse over the nomination of union attorney Craig Becker (D), who was initially nominated to the Board by President Obama in July 2009, along with Pearce and Hayes.

Becker, who, along with Pearce, was provided a recess appointment by President Obama in March 2010, was excluded from the package of 65 nominees after Senate Minority Leader Mitch McConnell (R-KY) and Senate Republicans raised objections to his inclusion. Pro-labor Senate Democrats initially balked at Becker’s exclusion, but eventually relented to the compromise package.

Becker’s nomination previously stalled in the Senate after opposition by Senate Republicans and business groups. His nomination for a full term on the Board is still pending, but his exclusion from the compromise likely ends any chance of overcoming a Republican-led filibuster to that nomination.

Pearce, a labor lawyer in private practice in Buffalo, New York, had not drawn significant opposition, but his nomination had been held up by the impasse over Becker’s nomination.  Hayes, a Republican Senate staffer whose nomination has been pending since July 2009, did not receive a recess appointment.

The compromise follows last week’s Supreme Court decision in New Process Steel L.P. v. NLRB, striking down hundreds decisions by the depleted two-member Board. The confirmations of Pearce and Hayes, along with the recess appointment of Becker, returns the Board to its full compliment of five members.

The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. Becker’s recess appointment expires when the Senate adjourns its 2011 session.

Supreme Court Finds Two-Member NLRB Lacked Authority To Issue Orders

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On June 17, 2010, in a 5-4 decision, the Supreme Court declared that the National Labor Relations Board lacked the statutory authority to issue orders once its membership fell to two members in January 2008. The Board operated with two members until March 2010, when President Obama made two recess appointments. A summary of the Court’s opinion in New Process Steel, LP v. NLRB is available at SCOTUSblog.

In a press release, the current Board defended its effort under “difficult circumstances” to delegate the Board’s powers to a two-member quorum to prevent a “Board shut-down,” but stated it “will now do [its] best to rectify the situation in accordance with the Supreme Court’s decision.” The Board indicated that the issue had been raised in five other cases pending before the Supreme Court and 69 cases pending before the Courts of Appeal. Expecting these cases to be remanded to the Board, “[t]he now-four member Board will decide the appropriate means for further considering and resolving them.” The sole Republican member’s term expires in August.

The Supreme Court gave no guidance as to how the Board should proceed, but noted that “[i]f Congress wishes to allow the Board to decide cases only with two members, it can easily do so.” While Congress could legislatively overrule the Supreme Court, as it did in passing the Lilly Ledbetter Fair Pay Act in 2009 to overrule Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), it is not clear whether there is the time or the votes for such action. Any legislative fix is likely complicated by the controversial recess appointment by President Obama of Board chairman Craig Becker, whose nomination had been returned at the end of the 2009 Senate session after Majority Leader Harry Reid was unable to muster 60 votes to move the nomination forward.

Absent a legislative cure, the Board now faces novel and potentially complicated questions regarding the nearly 600 orders affected by the Supreme Court’s ruling. One possible solution would be for the Board to just re-affirm or re-issue its prior orders without further reconsideration. In general, the orders handed down by the Board involved non-controversial issues where Democrat member Wilma Liebman and Republican member Peter Schaumber were able to agree, and thus the result would not likely change with an additional Democrat vote. But there were instances where Liebman signed on to orders “solely for institutional reasons and to expedite final resolution of [a] case,” even though she disagreed with the underlying Board precedent. See, e.g., Fluor Daniel, Inc., 353 NLRB No. 15 (Sept. 25, 2008). With a Democrat majority, the Board may be interested in revisiting some orders which applied precedent it would no longer apply.

In addition, in situations where an unfair labor practice charge has been resolved through withdrawal or settlement, the Board may lack jurisdiction to issue new orders affirming the prior unlawful orders. For example, the Fluor Daniel case discussed above was subsequently settled during compliance proceedings, and so the issues decided by the Board are now moot. In situations where orders are not re-issued, ALJs will not be bound to follow the original orders, but as a practical matter, they may find such opinions persuasive until told otherwise.

The Board may also need to address quickly decisions that either remanded a case to the ALJ for further proceedings or led to a compliance proceeding before an ALJ. If, for example, the Board found a violation of the Act and the General Counsel initiated a compliance proceeding, the ALJ may suddenly be without jurisdiction to proceed. If the Board reissues an order, the Board will have to work out the mechanics of reinstituting compliance proceedings.

Finally, the Board may face continued litigation over whether its delegation of certain powers to the General Counsel (such as the ability to approve the commencement of litigation seeking section 10(j) injunctions) was lawful. While the Court’s opinion stated that its decision did not address that question, the dissent noted that the Court was not rejecting such a view.

Outgoing NLRB General Counsel Meisburg Issues Report on 10(j) Injunction Proceedings

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In a report made public on June 15, 2010, outgoing NLRB General Counsel Ronald Meisburg reviewed the 112 injunction proceedings authorized under Section 10(j) of the National Labor Relations Act since the beginning of his tenure in January 2006. Of these proceedings, 58 went forward without being settled, withdrawn, or otherwise not filed.

Under Section 10(j), the Board may seek injunctive relief from the federal courts to preserve the rights of employees engaged in administrative proceedings before the Board. The Board pursues Section 10(j) relief in only a fraction of cases - of the more than 90,000 cases before the Board in Meisburg’s term, the Board authorized Section 10(j) relief in only those112 cases. Nevertheless, Meisburg noted that those 112 cases “represent an active and vital 10(j) program” and compared favorably with other four-year periods.

In his report, Meisburg noted that the Board pursued Section 10(j) relief most commonly in cases involving interference with organizing campaigns, withdrawal of recognition from the incumbent union, undermining of the bargaining representative, and the refusal to bargain by a successor employer. The report further noted that of the 58 Section 10(j) cases that went forward, the Board won 42 and lost 12, with four cases still pending.