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September 01, 2005
Schaumber gets NLRB recess appointment
- The President will recess appoint Peter C. Schaumber as a Member of the National Labor Relations Board for a term that expires in August 2010, according to a White House press release.
- Schaumber's regular term expired August 27, leaving only two Members on a five-Member Board.
- Earlier, the NLRB announced that it would continue deciding cases even with only two Members.
- Labor Law Blog has a good commentary on Shaumer's voting record.
Thanks to Labor Law Blog for the tip.
Posted September 01, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
August 07, 2005
NLRB Law Memo
NLRB Law Memo (free) summarizes National Labor Relations Board decisions.
- On the web: http://www.lawmemo.com/NLRB/memo/
- email subscription: http://www.lawmemo.com/signup/
- RSS feed: http://www.lawmemo.com/rss.htm
Posted August 07, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
July 10, 2005
Article: Prohibiting employee conversations
In both unionized and non-union workplaces employers may have work rules that forbid such things as:
- having "negative conversations" about managers
- making "false, vicious, profane or malicious statements toward or concerning [the employer] or any of its employees"
- using "abusive or profane language"
- "verbal, mental and physical abuse"
- "harassment . . . in any way"
No problem? Think again. These quotes were taken from actual NLRB decisions in which the employers were held to be in violation of the National Labor Relations Act.
It didn't matter whether the employers were unionized or non-union.
As this article points out:
There are numerous decisions by the NLRB holding that the mere maintenance of an overly broad work rule violates the law. The liberal members of the five-member NLRB, who were appointed by President Bill Clinton, penned many of these decisions. Despite the presence of a more conservative NLRB comprised of President George W. Bush's appointments, the decisions issued within the past year do not indicate an imminent change in the law.
The author: Alan Model, a principal at Grotta, Glassman & Hoffman, a management-side law firm.
My view: Many employers continue to believe they can ignore the NLRB. Sadly, some lawyers believe this also. Truth is, they can't. A significant percentage of NLRB decisions involve non-union employers. Alan Model's article focuses on work rules that restrict what employees can say about management and about other employees, but this is only one aspect of the workplace where the NLRB gets involved.
Policy on reviewing books and articles:
- I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
- Books: I'll need to see the actual book.
- Articles: I must be able to link to a no-charge digital source such as a web site.
Posted July 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
July 06, 2005
Secret surveillance
An employer installed secret surveillance cameras to monitor employees, but didn't bother to tell the union or offer to bargain about it. The cameras caught employees doing drugs, and the employer discharged them.
This created two questions for the NLRB and the DC Circuit:
- Is installing a secret camera a mandatory subject of collective bargaining? That is, must the employer first notify the union and offer to bargain about it? The NLRB said yes (2-1), and the DC Circuit agreed. This was a unilateral change in the terms and conditions of employment in violation of Section 8(a)(5).
- If the employer must offer to bargain but did not, can the employer use the information gathered by the cameras to discharge employees? The NLRB said yes (2-1), relying on Section 10(c):
No order of the Board shall require reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was discharged or suspended for cause.
The Board distinguished two of its prior decisions: Taracorp Industries, 273 NLRB 221 (1984) and Great Western Produce, 299 NLRB 1004 (1990).
The DC Circuit was not impressed, saying (2-1) that the Board failed to "adequately" distinguish its prior cases. So the Circuit Court sent the case back to the Board to take another look at the remedy. A dissenting judge thought the case was a slam-dunk due to the plain and unambiguous language of Section 10(c).
The decisions: Anheuser-Busch, Inc., 342 NLRB No. 49 (2004); Brewers and Maltsters Local 6 v. NLRB (DC Cir 07/05/2005).
My view:
- It's within the Board's discretion to decide that installing cameras is a mandatory subject of bargaining, so a circuit court is required to uphold that part of the decision.
- The remedy question is much more doubtful.
- The Board did distinguish its prior cases, but simply not to the satisfaction of the court. I think the court is asking too much, and trying to micromanage the NLRB's policy-making.
- Now the Board must once again distinguish its prior cases or overrule them. With only three Members, the Board won't do any overruling soon because of its unwritten rule that it takes three Members to do that, and we can be sure that the Democrat Member will not go along.
- Sadly, the facts in this case arose in 1998, an ALJ rendered a decision in 1999, and here we are another six years later with only a dim light at the end of the long tunnel.
More commentary by Michael Fox at Jottings By An Employer's Lawyer.
Posted July 06, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
June 30, 2005
NLRB nominations: An interesting switch
The President has nominated Ronald E. Meisburg (Republican) to be General Counsel of the National Labor Relations Board for a term of four years. Meisburg had been nominated to be a Member of the Board, but the President withdrew that nomination. [Press Release]
The President also re-nominated current Board Member Peter C. Schaumber (Republican) whose current term expires in August.
The nomination of Dennis P. Walsh (Democrat) is also pending in the Senate.
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Ronald E. Meisburg |
Peter C. Schaumber |
Dennis P. Walsh |
Others on the Board are Chairman Robert J. Battista (Republican) and Member Wilma B. Liebman (Democrat).
Currently the five-Member Board has two vacancies, and Senate confirmation of all the above folks would still leave one vacancy and the Board would be evenly split between Republicans and Democrats.
Former General Counsel Arthur F. Rosenfeld's term expired June 3, 2005, and John E. Higgins, Jr. is serving as Acting General Counsel.
Thanks to Labor Law Blog, an interesting anonymously-written blog, for the tip.
Posted June 30, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
June 10, 2005
Bannering was not unlawful secondary picketing
It can be a fine line between free speech protected by the first amendment and secondary picketing that violates the National Labor Relations Act (NLRA). Today's issue of Employment Law Memo tells the story:
Overstreet v. United Brotherhood of Carpenters (9th Cir 06/08/2005).
The NLRB's Regional Director sued the union under NLRA Section 10(l) seeking to enjoin an alleged violation of Section 8(b)(4)(ii)(B). The trial court denied the injunction; the 9th Circuit affirmed (2-1).
The union had a dispute with three contracting companies, objecting to their failure to hire union employees and alleged failure to meet local labor standards. In an effort to induce the contractors to change their practices, the union put pressure on 18 "retailers" who did business with them. Near each retailer, the union set up a 4x15 foot banner that read "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in smaller black letters on each side. Individual union members held the banners from 20 to several hundred feet from the retailers' entrances. The union members remained stationary, did not block entrances, and did not confront customers.
(1) The court announced a new standard for granting Section 10(l) injunctions. Previously the standard was highly deferential to the Regional Director: whether the Regional Director had "reasonable cause" to believe the union violated Section 8(b)(4)(ii)(B). The court adopted the same standard used in Section 10(j) cases, which is the ordinary standard generally governing issuance of injunctions, including whether the Regional Director has a "fair chance of success on the merits." Additionally, because this particular case had 1st amendment overtones, the court said there should be no deference at all to the NLRB's conclusions and that there must be a "particularly strong" showing of likely success.
(2) The court held that the Regional Director was unlikely to succeed on the merits. The union conceded that its goal was to dissuade customers from patronizing the retailers, which had the goal of encouraging the retailers to cease doing business with the contractors. Thus, the issue was whether the union's actions fit the "threaten, coerce, or restrain" portion of Section 8(b)(4)(ii)(B). Here there was no "coercing" because there was no "picketing," and no one-on-one physical interaction or communication. The court also concluded that the union was not engaged in "signal picketing" (a signal to employees of the secondary employers) because the banners were directed toward passing motorists and were not directed at employees.
(3) The court rejected the argument that the banners were fraudulent in that they used the phrase "labor dispute" - suggesting that the union had a primary dispute with the retailers rather than with the contractors. The banners were not false because the union in fact did have a labor dispute with the secondary businesses (retailers).
The DISSENT said the Regional Director was likely to prevail on the "fraudulent speech" claim because the banners falsely conveyed the message that the union had primary labor disputes with the secondary employers, that is, that the retailers were treating their employees shamefully.
My view: Let the law review articles begin.
Posted June 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 26, 2005
Senate: Please confirm two NLRB nominees
The President has nominated Ronald E. Meisburg and Dennis P. Walsh to serve as Members of the National Labor Relations Board. Now the Senate should confirm them without delay.
Both previously served with distinction as Board Members. Meisburg faithfully represents the traditional Republican view, and Walsh faithfully represents the traditional Democrat view. Great balance. The Board has had two vacancies for long enough. It is time for the Senate to do its job.
Meisburg, a Republican, previously served as a Member of the NLRB under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004.
Prior to serving on the Board, Meisburg had been a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Washington, D.C. He previously was a partner with Heenan, Althen & Roles in Washington, and served at the U.S. Department of Labor in the Office of the Solicitor of Labor. While at the Department of Labor, Mr. Meisburg served in the Division of Employee Benefits and the Division of Mine Safety and Health and was awarded the Secretary of Labor's Distinguished Achievement Award. He received a B.A. degree from Carson-Newman College in 1969 and a J.D. from the University of Louisville in 1974.
Mr. Meisburg was president of the Energy and Mineral Law Foundation (1994 - 1995); a member of the Employment Lawyers Advisory Council of the National Association of Manufacturers (1996-1998); and a member of the Industrial Relations Committee of the U.S. Council for International Business (1993-1998).
Mr. Meisburg is married to Mary Helen Ratchford. The family resides in Arlington, VA.
Walsh, a Democrat, previously served as a Member of the NLRB from December 30, 2000 to December 20, 2001 under a recess appointment by President Clinton, and again under a regular appointment by President Bush from December 17, 2002 to December 16, 2004.
Walsh was Chief Counsel to Member Wilma B. Liebman, and from 1994 to 1997, he was Chief Counsel to Member Margaret A. Browning.
A native of Oxford, NY, Mr. Walsh was a career NLRB attorney from 1984 to 1989, serving as an attorney-advisor in the Office of Representation Appeals; staff counsel on the staff of Member Patricia Diaz Dennis; staff attorney in the Appellate Court Branch; and field attorney with the NLRB's Philadelphia office (Region 4). From 1989 to 1994, he was an associate at the law firm of Spear, Wilderman, Borish, Endy, Browning and Spear in Philadelphia.
Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review. He received a B.A. degree, summa cum laude, in Government from Hamilton College in 1976.
Mr. Walsh is married to Barbara A. O'Neill, an attorney. They are the parents of two children: Steven and Rose. The family resides in Olney, Maryland.
Posted May 26, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 22, 2005
En banc rehearing on use of state funds (corrected)
CORRECTION (added on 05/25/2005): The 9th Circuit did not order an en banc rehearing. It ordered an "ordinary" rehearing by the same 3-judge panel that originally heard the case.
California ties a string to state-funds grants over $10,000: Private employers can't use the money "to assist, promote, or deter union organizing."
A 9th Circuit panel ruled that the NLRA preempted the statute, and now the 9th Circuit will rehear the case en banc with a panel of 11 judges. Chamber of Commerce of the United States v. Lockyer (9th Cir 04/20/2004) is the panel decision. Order granting rehearing (9th Cir 05/13/2005): is [here].
California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
A 9th Circuit panel held that these provisions are preempted by the National Labor Relations Act (NLRA) under the "Machinists" preemption doctrine (Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976)). The panel stated, "[w]e are constrained to conclude that California--acting as a regulator, not a proprietor in imposing these restrictions--has acted in such a way as to undermine federal labor policy by altering Congress' design for the collective bargaining process." The panel rejected the argument that "the statute merely affects California's use of its own funds," observing "[t]he statute will alter the NLRA process of collective bargaining and union organizing, because an employer who decides against neutrality will incur both compliance costs and litigation risk."
My view: The original panel decision was well written, but probably wrong.
Machinists preemption is designed to keep states from regulating certain activity that Congress wants to be unregulated by anybody. The relevant activity here is an employer (or a union) expressing its opinion either for or against union organization. That's NLRA Section 8(c).
California law does not limit employers' ability to express their opinions; it merely says they can't spend state money to do so. Whatever employers could say before the statute they can still say. It's just that state money must be spent on other things. Hence, in my view, no real interference with Congress's policies, and no preemption.
Stephen F. Befort (law prof at University of Minnesota Law School) and Bryan N. Smith have written a great article about this case - At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, with lots of background and lots of opinions. Oh, yes, they agree with me. Or I agree with them.
Posted May 22, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 05, 2005
Walsh re-nominated to NLRB
The President has re-nominated Dennis P. Walsh to the NLRB. Walsh served as a Member of the National Labor Relations Board from December 30, 2000 to December 20, 2001 under a recess appointment by President Clinton, and again under a regular appointment by President Bush from December 17, 2002 to December 16, 2004.
Walsh is a Democrat, and can be counted on to provide a clear pro-union view on matters of NLRB policy.
An excellent account of Walsh's NLRB record is provided in the Labor Law Blog.
The Board is currently working with only three Members instead of five. The President has also re-nominated Republican Ronald E. Meisburg (See my Meisburg blog [here]) and both nominations are pending confirmation by the Senate.
Walsh was Chief Counsel to Member Wilma B. Liebman, and from 1994 to 1997, he was Chief Counsel to Member Margaret A. Browning.
A native of Oxford, NY, Mr. Walsh was a career NLRB attorney from 1984 to 1989, serving as an attorney-advisor in the Office of Representation Appeals; staff counsel on the staff of Member Patricia Diaz Dennis; staff attorney in the Appellate Court Branch; and field attorney with the NLRB's Philadelphia office (Region 4). From 1989 to 1994, he was an associate at the law firm of Spear, Wilderman, Borish, Endy, Browning and Spear in Philadelphia.
Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review. He received a B.A. degree, summa cum laude, in Government from Hamilton College in 1976.
Mr. Walsh is married to Barbara A. O'Neill, an attorney. They are the parents of two children: Steven and Rose. The family resides in Olney, Maryland.
Posted May 05, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
March 04, 2005
NLRB's new "full consent election" agreement
Parties to an NLRB election now have a third form of voluntary agreement that waives appeal to the Board and allows the Regional Director to make a final decision on all pre-election and post-election disputes. [press release]
The new Full Consent Election agreement is a welcome option. For those parties who want to avoid the time and expense of appeals to the Board, this option allows them waive a Board appeal to agree that the Regional Director will make all the decisions.
Effective March 1, 2005, new Section 102.62(c) provides:
"Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of the employees involved may, with the approval of the Regional Director, enter into an agreement providing for a hearing pursuant to sections 102.63, 102.64, 102.65, 102.66 and 102.67 to resolve any issue necessary to resolve the question concerning representation. Upon the conclusion of such a hearing, the Regional Director shall issue a Decision. The rulings and determinations by the Regional Director thereunder shall be final, with the same force and effect, in that case, as if issued by the Board. Any election ordered by the Regional Director shall be conducted under the direction and supervision of the Regional Director. The method of conducting such consent election shall be consistent with the method followed by the Regional Director in conducting elections pursuant to sections 102.69 and 102.70, except that the rulings and determinations by the Regional Director of the results thereof shall be final, and the Regional Director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, provided further that rulings or determinations by the Regional Director in respect to any amendment of such certification shall also be final."
Posted March 04, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 25, 2005
Hotel unions escape NLRB charge
HERE UNITE Locals 2 and 11 are continuing their boycott against hotels in San Francisco and Los Angeles. One big sticking point in negotiations has been the unions' demands for two year contracts. Although there is a history of five and six year contracts, the two-year proposals were designed to coordinate expiration dates with major cities such as New York, Chicago, Boston, Honolulu, and Toronto.
The hotels went to the NLRB and charged that the locals' demands were unlawful. The theory: The unions were attempting to broaden the scope of their separate bargaining units and merge them into a single national bargaining unit.
The NLRB's Regional Directors sought advice from headquarters, and the General Counsel (essentially the NLRB's prosecuting office) decided the unions acted lawfully and the charges should be dismissed.
The General Counsel's Advice Memo is chock full of quotes from union officials who obviously would like to have some kind of nationwide bargaining. But the law is pretty clear. The fact that two locals get together and coordinate their demands is not illegal. So long as the locals bargain separately and bargain only about matters in their own bargaining units, there is no problem. Neither local ever asked to bargain on a national level.
The expiration date of a contract is a mandatory subject of bargaining (that is, you must bargain about it but you are not required to agree to it). Demanding a uniform expiration date relates to each local's bargaining unit because it effects each local's economic leverage. And that's exactly why the employers resist it.
So the trip to the NLRB was a diversion. And speaking of diversions, a number of conventions are re-scheduling for other venues.
Keep up on the exciting world of NLRB Advice Memos by reading NLRB Law Memo, a free weekly email from LawMemo.Com [Get it]
Posted February 25, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 02, 2005
NLRB continues to watch non-union employers
Non-Union employers took pleasure in the NLRB's decision that Weingarten rights do not apply in the non-union workplace. IBM Corp., 341 NLRB No. 148 (06/09/2004).
This shift in NLRB policy should not be taken as a signal that the NLRB is no longer paying attention to the non-union workplace.
Case in point: The first NLRB decision of 2005, National Specialties Installations, 344 NLRB No. 2 (01/18/2005). Two employees went to the president of the company to complain that their paychecks had bounced, and the president fired them. This is a classic example of a Section 8(a)(1) violation. The employees were engaged in "concerted activity" and they were complaining about "terms and conditions of employment." That was the reason they got fired. End of discussion.
The NLRB issued its usual order in such cases, to reinstate the employees with back pay. The cost to the employer? All the expenses of litigation plus paying two employees who were not performing services while the litigation was going on.
Posted February 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
January 26, 2005
Meisburg renominated to NLRB
The President has re-nominated Ronald E. Meisburg to the NLRB. Meisburg served as a Member of the National Labor Relations Board under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004.
Meisburg can be counted on to provide a clear pro-management view on matters of NLRB policy. At the same time, his votes have demonstrated that he will not strain the facts in order favor an employer. On the facts, he calls 'em the way he sees 'em.
I assume the Senate will wait until the President nominates a Democrat before they confirm the nomination. I also assume that this won't happen until the President makes some kind of deal with Senate Democrats. Meanwhile, the Board is working with only three Members instead of five.
Prior to serving on the Board, Meisburg had been a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Washington, D.C. He previously was a partner with Heenan, Althen & Roles in Washington, and served at the U.S. Department of Labor in the Office of the Solicitor of Labor. While at the Department of Labor, Mr. Meisburg served in the Division of Employee Benefits and the Division of Mine Safety and Health and was awarded the Secretary of Labor's Distinguished Achievement Award. He received a B.A. degree from Carson-Newman College in 1969 and a J.D. from the University of Louisville in 1974.
Mr. Meisburg was president of the Energy and Mineral Law Foundation (1994 - 1995); a member of the Employment Lawyers Advisory Council of the National Association of Manufacturers (1996-1998); and a member of the Industrial Relations Committee of the U.S. Council for International Business (1993-1998).
Mr. Meisburg is married to Mary Helen Ratchford. The family resides in Arlington, VA.
Posted January 26, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
January 21, 2005
NLRB allows e-filing for all documents in all cases
Kudos to the NLRB for expanding its E-Filing Project to include all documents in both representation and unfair labor practice cases. Parties can go to the NLRB web site and fill out a one page form and submit documents directly to the Office of the Executive Secretary. [Details]
First you need to go to this page and click near the bottom to indicate that you agree to the terms of the NLRB's e-filing program. Then you can proceed to the submission form.
Posted January 21, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
