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Cert granted: Is the NLRB authorized to act when only two of its five positions are filled?
November 02, 2009 by Ross Runkel at LawMemo

The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.

Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.

The 7th Circuit held that the NLRB had the statutory authority to hear cases and issue orders regarding unfair labor practice charges.

The US Supreme Court granted certiorari on November 2, 2009 to review the 7th Circuit judgment. New Process Steel v. National Labor Relations Board.

The official question presented:

Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that "three members of the Board shall, at all times, constitute a quorum of the Board"?

[Briefs]

Obama's NLRB - What Changes To Expect [Wow]
September 18, 2009 by Ross Runkel at LawMemo

If you follow the NLRB at all, here is something you absolutely must read.

The US Chamber of Commerce has published a 79 page report, The National Labor Relations Board in the Obama Administration: What Changes To Expect

No matter which side of the issues you are on, this document will arm you with a knowledge of the probable future changes to expect from the NLRB under the Obama administration.

HT: Workplace Prof Blog; Adjunct Prof Blog.

Third nomination to NLRB
July 10, 2009 by Ross Runkel at LawMemo

President Obama has announced his intent to nominate Republican Brian Hayes as a Member of the National Labor Relations Board. [White House press release]

The NLRB now has two Members. The President has nominated three additional Members to bring the Board up to its statutory level of five Members.

The other two nominations are Democrats Craig Becker and Mark Pearce. [Read their biographies here]

Biography for Brian Hayes:

Brian Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).

Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts.

Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act.

Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB.

In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section.

Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center.

My view: All three individuals are highly qualified, and there should be no trouble obtaining confirmation at the Senate. It will be nice to have a full five-Member Board in operation again.

Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.
May 01, 2009 by Ross Runkel at LawMemo

The US Circuit Court for the District of Columbia decided today that the two-Member NLRB lacks the authority to issue orders.
Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009).

Later today the 7th Circuit came to the conclusion that the two-Member NLRB does have the authority to issue orders.
New Process Steel v. NLRB (7th Cir 05/01/2009).

The NLRB has been limping along with only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.

Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.

So now, Circuit Courts are split. The DC case gets sent back to the NLRB for a new decision by a quorum, and the 7th Circuit case gets affirmed.

For more gory details, see Employer Law Report, Two Conflicting Federal Circuit Court Decisions Issued Today Call Into Question all NLRB Opinions Issued in the Past Year and Workplace Prof Blog, Two-Member NLRB Decisions Struck Down

Just to make things interesting, Northeastern Land v. NLRB (1st Cir 03/13/2009) previously held that orders from a two-Member Board were lawful. So the Circuit split is 2-1 in favor of the Board.

2-Member NLRB lacks authority to issue orders
May 01, 2009 by Ross Runkel at LawMemo

The US Circuit Court for the District of Columbia decided today that the two-Member NLRB lacks the authority to issue orders.

Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009)

The NLRB has been limping along with only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.

Laurel Baye argued that the whole thing was a sham. On a more technical level (one that the DC Circuit agreed with), the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.

So, the whole case gets sent back to the NLRB for a new decision by a quorum.

For more gory details, see Workplace Prof Blog, Two-Member NLRB Decisions Struck Down

Just to make things interesting, Northeastern Land v. NLRB (1st Cir 03/13/2009) recently held that orders from a two-Member Board were lawful.

President to nominate two NLRB Members
April 25, 2009 by Ross Runkel at LawMemo

The President has announced his intention to nominate two Members of the National Labor Relations Board. [April 24, 2009 press release]

Both individuals are Democrats. Both are lawyers representing labor unions.

The NLRB normally has five Members, but currently there are only two, one Democrat and one Republican. By tradition, no more than three are from the same political party, so the next appointment will have to be a Republican.

Craig Becker:

Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.

Mark Pearce:

Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.

The following is Mr. Pearce's biography as it appears on the Creighton, Pearce, Johnsen & Giroux web site:

Mark Gaston Pearce has dedicated his career to the practice of labor and employment law. He is currently a principal partner in a firm representing individuals as well as public and private sector labor unions in all matters involving employment and labor relations. Previously a district trial specialist with the National Labor Relations Board and a partner at a major Buffalo law firm, Mr. Pearce has extensive trial experience in state and federal courts and agencies. He also represents clients in civil service and employment discrimination litigation, collective bargaining, contract compliance, arbitration, and Taylor law prosecution. Additionally, Mr. Pearce represents individuals in all employment matters including the negotiation of professional employment contracts, partnership, and severance agreements.

Mr. Pearce is a graduate of Cornell University and State University of New York at Buffalo School of Law. He is admitted to practice in New York State and the United States District Court for the Western District of New York in 1979 and 1980 respectively.

In 2007 and 2008 Mr. Pearce was appointed by NYS Governor Elliott Spitzer to the Commission on Increasing Diversity in the State Government Workforce and the Industrial Board of Appeals respectively. He has served on the NYS Office of Court Administration Commission to Examine Solo and Small Firm Practice and contributed to its report and recommendation issued in 2006. Mr. Pearce is a member of the Procedures and Practices Committee of the American Bar Association Section on Labor and Employment Law, the Board of Directors of the Coalition for Economic Justice, the WNY Workforce Investment Board, the Advisory Board of the Labor and Employment Relations Association of Western New York (formerly IRRA), The Labor Advisory Board of Cornell University School of Industrial Labor Relations- Great Lakes Division, Buffalo Arts Studio, the Erie County Bar Foundation and the Council of the Burchfield-Penney Art Center. He also serves on the NYS Supreme Court Appellate Division 4th Dept. Committee on Character and Fitness, the Board of Directors of the Lawyers Coordinating Committee of the AFL-CIO and has served as president of the Volunteer Lawyers Project Inc., the Minority Bar Association of Western New York, and Housing Opportunities Made Equal.

Mr. Pearce is adjunct faculty at Cornell University School of Industrial Labor Relations and is a member of Cornell Adjunct Faculty -Upstate, New York State United Teachers Local # 37-950 an affiliate of American Federation of Teachers (AFL-CIO). He is a member of the sections on Labor and Employment Law of the American Bar Association and the New York State Bar Association, the Minority Bar Association of Western New York (an affiliate chapter of the National Bar Association), The Bar Association of Erie County. Mr. Pearce has lectured on labor and employment law and given Continuing Legal Education presentations for the American Bar Association , New York State Bar Association, the Pacific Coast Labor and Employment Law Conference, the AFL-CIO, Cornell University and the National Labor Relations Board.

Mr. Pearce is a recipient of the Minority Bar Association of Western New York Legal Service and President's Awards; the 1490 Enterprises of Western New York Black Achiever in Industry award; special recognition from the Buffalo Chapter of the Coalition of Black Trade Unionists; the Coalition for Economic Justice Rev. Robert Beck Award; the Communications Workers of America, Western New York Council Eugene J. Mays Citizenship Award and was designated an "Uncrowned King" and African American Community Builder by the Uncrowned Queens Institute. Mr. Pearce is a class of 2000 graduate of Leadership Buffalo and is listed in the 2007 Buffalo Spree magazine's Superlawyer edition for New York State.

NLRB's ADR Program for ULP cases is now permanent
March 24, 2009 by Ross Runkel at LawMemo

After running a pilot ADR program since December 2005, the NLRB announced today that the program will be permanent.

Press Release: NLRB Establishes Permanent ADR Program For Settling Unfair Labor Practice Cases.

The Board assigns neutrals to assist the parties in reaching settlements, which are then approved by the Board. During the pilot program, the parties reached settlements in approximately 60% of the cases.

Participation is voluntary, and a party can withdraw at any time. The Board usually appoints an NLRB administrative law judge, who facilitates confidential settlement discussions to explore resolution options that serve the parties’ interest. Settlement conferences are held in person, telephonically, or by videoconference.

Additional details [here].

Decision by two-member quorum of NLRB was lawful
March 18, 2009 by Ross Runkel at LawMemo

The NLRB, by statute, should have five Members. Currently it has only two. This is because they serve limited terms, and some terms expired, and the nomination-confirmation process broke down.

Back in December 2007, when there still were four Members, they knew the number would soon drop to two. What to do? The four formally delegated the power to decide cases to three Members. Of those three, two are remaining.

So, is there a legal quorum?

Argument in favor: The statute expressly gives the Board the power to delegate to a panel of three, and two of those three makes up a quorum.

Argument against: Two can be a quorum of a panel of three, but there was no panel of three.

The 1st Circuit unanimously ruled in favor of the NLRB in Northeastern Land v. NLRB (1st Cir 03/13/2009). [The identical issue is still pending decision in the DC Circuit: Laurel Baye Healthcare v. NLRB, Docket Nos. 08-1162 and 08-1214.]

In Northeastern Land the employer petitioned for review of the NLRB's decision that the employer violated section 8(a)(1) of NLRA by maintaining an overbroad confidentiality provision and discharging an employee for violating it. The 1st Circuit enforced the order.

The court reasoned that the plain text of the statute favored the NLRB's position:

Section 3(b) "The Board is authorized to delegate to any group of three ... all of the powers ... and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group ... ."

Plant closed. Will NLRB order it to re-open?
January 26, 2009 by Ross Runkel at LawMemo

Wild as it may seem, it is just possible that the NLRB will order an employer to re-open a plant that it closed in December. It seems unlikely to me, but not beyond the realm of possibility.

George Lenard at George's Employment Blawg has an interesting and entertaining explanation: NLRB to Consider Ordering Shuttered Window & Door Plant Reopened.

Wilma B. Liebman is new Chairman of the NLRB
January 22, 2009 by Ross Runkel at LawMemo

President Obama designated Wilma B. Liebman to be Chairman of the NLRB on January 20, 2009. [NLRB Press Release]

Wilma B. Liebman has served as a Member of the National Labor Relations Board (NLRB) since November 14, 1997. She was first appointed by President Clinton and confirmed by the Senate to a five-year term that expired on December 16, 2002. She was reappointed by President Bush and confirmed by the Senate to a second term that will expire on August 27, 2011. She was again reappointed by President Bush and confirmed by the Senate to a third term that will expire on August 27, 2006.The NLRB is an independent federal agency that decides unfair labor practice and representation cases under the National Labor Relations Act.

Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.

From 1994-1996, Ms. Liebman served as Special Assistant to the Director of FMCS. In this role, she was a key member of the Mediator Task Force on the Future of FMCS, an 18-member employee group charged with articulating a vision and recommendations to lead the Agency into the 21st century.

Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. She served as Legal Counsel to the International Brotherhood of Teamsters for nine years and as staff attorney with the NLRB from 1974 to 1980.
Ms. Liebman is an elected member of the Executive Board of the Industrial Relations Research Association and of The College of Labor and Employment Lawyers, Inc.

A native of Philadelphia, PA, Ms. Liebman holds a B.A. from Barnard College in New York City and a J.D. from the George Washington University Law Center. She resides in Washington, D.C.

(Thanks to Workplace Prof Blog for this news.)

Employee Free Choice Act - Probably on hold
January 19, 2009 by Ross Runkel at LawMemo

The labor movement, lots of Democrats, academics, and others have their hopes built up that the election of Barack Obama and the increase in the number of Congressional democrats will result in the early enactment of the Employee Free Choice Act (EFCA).

That seems doubtful to me.

There are other more pressing problems. Such as seriously dysfunctional credit markets, drooping housing market, bank failures, foreclosures, a disastrous situation in the auto industry, enormous job losses, and two wars that really aren't going anywhere.

I suppose if the EFCA were the only thing on the table, the democrats could push it through in spite of huge opposition by business and the republicans.

However, that sort of push would create the kind of partisan ill will that would make it even more difficult to get needed legislation in higher priority areas.

On top of that, the need to create new jobs and preserve existing jobs will be a much higher priority than making union organizing easier.

My prediction: On hold until 2010.

High-level discussion of proposed labor law reform
January 14, 2009 by Ross Runkel at LawMemo

Follow-Up on Proposed Reform is something worth reading if you have an interest in possible reform of the traditional labor laws (that is, NLRB stuff). It is brought to you by Labor Law Blog.

It's a discussion between the Labor Law Blog editor (whose true identity I cannot reveal) and Joe Brock, from Laboring Away at the Institute.

Here is just a sample:

Joe Brock: I've been looking over your proposal with some interest, and I have some comments that i'd like to share. Your statistics are obviously well researched, and I think these statistics would be surprising to the general public who might not have the benefit of the numbers. For example: You correctly note that the median time between petition and election was 39 days in 2007. I think that would surprise many who have come to the conclusion in listening to the unions argument that it routinely took much longer. I think that 39 days from petition to election is about what it SHOULD take to make such a potentially career changing decision.

Labor Law Blog: You focus on the half of elections held within 39 days and say the law does a good job. I focus on the half of elections that take more than 39 days (including 7% that take more than 56 days and the small minority that take many months) and say that the law can do a substantially better job. There is no need to wait months. We can do better.

Don't stop now. Read the whole thing.

No-match letter no-discussion rule was unfair labor practice
January 12, 2009 by Ross Runkel at LawMemo

Today's NLRB Law Memo reports on an interesting crossover between no-match letters and employer no-discussion rules.

The federal government issues a "no-match letter" when an employee's name does not match up with the reported social security number. It's an attempt to prevent illegal workers from faking social security numbers, and to prevent employers from employing illegals.

When the folks at Ashley Furniture got a no-match letter, they told their employees that they were required to resolve the discrepancy with the Social Security Administration, and instructed them not to discuss their no-match letters with anyone. They also told an employee not to discuss with anyone that he had received a disciplinary warning and that his "green card" had expired.

The problem with that, of course is that ordinarily employees have a statutory right to discuss workplace issues with fellow-employees. Section 7 of the National Labor Relations Act.

So one of the employees filed an unfair labor practice charge with the NLRB, and the NLRB found that the disciplinary warning, green card issue, and no-match letters constituted Section 7 "workplace matters" which employees were free to discuss among themselves or with outsiders, and that the employer could not lawfully prohibit such discussions absent a legitimate and substantial business justification.

The employer asserted several confidentiality concerns as justification for its "no-discussion" requirement.

The NLRB found that the employer's defense failed because none of its confidentiality concerns outweighed the employees' Section 7 right to discuss the workplace matters at issue. Accordingly, the NLRB found that the employer's no-discussion requirement violated Section 8(a)(1) of the Act.

The case: Ashley Furniture Industries, Inc., 353 NLRB No.71 (12/31/2008).

Guess? What? Deposition question created an unfair labor practice
January 08, 2009 by Ross Runkel at LawMemo

Monday's NLRB Law Memo contains a reminder: An employer can commit an unfair labor practice during a deposition by asking an employee whether he voted for a union. Yes, even though the question may have been relevant, and even though the employer had no illegal motive in asking the question.

Chinese Daily News, 353 NLRB No. 66 (Dec. 22, 2008).

The NLRB held that the employer violated Section 8(a)(1) of the National Labor Relations Act when its attorney asked an employee union supporter during a deposition - which was taken in connection with the employer's defense of a class-action wage-and-hour lawsuit brought by some of its employees - whether the employee, who was a supportive declarent in the motion for class certification, had "vote[d] for the Union to win the election[.]"

The Board applied the test set forth in Guess?, Inc., 339 NLRB 432 (2003)

The Board made two assumptions, for the purpose of argument:

• that the deposition question at issue was relevant to the litigation. 

• that the questioning did not have an illegal objective.  

However, the Board found that the employee's substantial Section 7 interest in maintaining the confidentiality of his election vote outweighed the employer's need for the information concerning his vote for the purpose of developing its defense to the lawsuit, i.e., that the class should not be certified because the plaintiffs would not act in the best interests of the class, and that one of the plaintiffs and the supportive declarents, including the employee, were biased against the employer because they were Union supporters.  

The Board therefore concluded that the deposition question regarding how the employee voted in the election constituted an unlawful interrogation.

My view: Nice reminder that employer lawyers dealing with issues that may have nothing at all to do with interacting with a union need to keep the National Labor Relations Act in the backs of their minds.

More on this case from Workplace Prof Blog: Company's Deposition Question Violates NLRA. 

Comments on joint petition rule
April 27, 2008 by Ross Runkel at LawMemo

NLRB is proposing a new type of petition for election.
[Federal Register notice (02/26/2008)]

This would result in a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director.

The Board asked for written comments. Here you go:

• Bruce Buchanan, an attorney with King & Ballow Law Firm
• California Nurses Association
• Catholic Healthcare Partners
• Center on National Labor Policy
• Chamber of Commerce of the United States
• HR Policy Association
• Jackson Lewis Law Firm
• Massachusetts Nurses Association
• National Right to Work Legal Defense Foundation, Inc.

Schaumber to chair NLRB
March 19, 2008 by Ross Runkel at LawMemo

Peter C. Schaumber will be the chairman of the (now) two-Member NLRB. It's sad that the President and Senate cannot get together to fully staff the National Labor Relations Board. Meanwhile, congratulations to Member Schaumber, a capable and conscientious Member.

The NLRB press release:

N.L.R.B. BULLETIN Division of Information Washington, D.C. March 18, 2008

MEMBER PETER C. SCHAUMBER DESIGNATED NLRB CHAIRMAN

The White House today announced that President Bush intends to designate Peter C. Schaumber as Chairman of the National Labor Relations Board. Member Schaumber is currently serving his second term as a Board Member, his first term having expired on August 27, 2005. He served under a recess appointment by President Bush from September 1, 2005 to August 3, 2006, when he was confirmed by Senate for a second term expiring on August 27, 2010.

In a statement, Member Schaumber said:

The President’s announcement is an honor and privilege. I look forward to serving as Chairman of the National Labor Relations Board. I pledge to carry out my responsibilities with the utmost respect for the rule of law and for the protections afforded to all parties subject to the National Labor Relations Act. The stewardship of the NLRB is vital to protect workplace democracy and promote collective bargaining. I thank the President for the faith and trust he has placed in me.

Member Schaumber began his legal career as an Assistant United States Attorney for the District of Columbia. After government service, he practiced law with Colton and Boykin (1980 – 1987) and with Wickwire Gavin (1987 – 1993), and he served as a full-time labor arbitrator.

* * *

Chamber v. Brown predictions
March 19, 2008 by Ross Runkel at LawMemo

Chamber of Commerce v. Brown was argued this morning at the US Supreme Court. [Details; briefs] [Transcript of argument]

I have nothing better to do than make a prediction on the outcome of this important case.

My view: California (Brown) will win, 6-3 or better.
Paul Secunda's (Workplace Prof Blog) view: Chamber of Commerce will win, 6-3.

California's statute simply says that an employer that receives state funds or grants cannot spend that money "to assist, promote, or deter union organizing." Violation of that restriction, of course, carries penalties.

The Chamber argues that California's statute is preempted by two well-known preemption doctrines. California disagrees, saying that the statute acts in a neutral way to keep employers from spending state money to deter union organizing.

Today's oral argument was interesting because there was a good discussion of labor law preemption, and the distinction between the State acting in a proprietary role versus a regulatory role.

I believe the Court will surprise many onlookers by using a reasoning process that goes something like this:

1. The Court does not like facial challenges to the legality of statutes. Does not like them at all. For example: Washington State Grange v. Washington State Republican Party (March 18, 2008 ); Gonzales v. Carhart (2007).
2. The case raises serious questions of federalism and state sovereignty, which will be resolved as follows: Once a state decides to give money to a private party, the state has the power to limit what the money is spent for, even though it appears that the state is meddling with national labor policy. National labor policy does not require states to allow state funds to be used for anti-union or pro-union advocacy.
3. To the extent that California employers are concerned that the statute unduly tangles them in red tape or has a real-life effect of regulating labor relations, they can attack the statute as it has been applied.

NLRB proposes new form of joint petitions for consent election
March 09, 2008 by Ross Runkel at LawMemo

NLRB is proposing to adopt a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director. The Board seeks written comments which must be received on or before March 27, 2008.

Federal Register notice (02/26/2008)

The current proposal for revision of the Board's Rules and Regulations would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected.

No showing of interest is required to be filed with the petition. If it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances.

Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of Sec. 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under Sec. 103.20 of the Board's Rules and Regulations.

Any motions to intervene may be filed with the Regional Director in accordance with Sec. 102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable.

Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition.

Three nominees to NLRB
January 27, 2008 by Ross Runkel at LawMemo

President Bush has announced his intention to nominate three lawyers to the NLRB, which now is limping along with only two Members. [White House Announcement]

Thanks to Michael Fox for tipping me off on this. His reaction/prediction is here: NLRB Back to Full Strength? By No Means a Sure Thing

The nominees:

1. Robert J. Battista (Republican), whose previous term expired December 16.


2. Dennis P. Walsh (Democrat), whose previous term expired December 31.


3. Gerard Morales (Republican), a partner in the Snell & Wilmer law firm.

The following biographical information is from the Snell & Wilmer web site:

Gerard Morales

Partner

Labor/Employment/Construction Law - Representation in employment related matters, including wrongful termination, employment discrimination, arbitration and other alternative dispute resolution proceedings. Extensive experience in NLRB unfair labor practice trials, and union elections matters, collective bargaining, labor law issues affecting the construction industry, the Hispanic labor force and cross boarder employment, wage and hour compliance, corporate policy development, and administrative proceedings before state and federal regulatory agencies, including the Equal Employment Opportunity Commission, U.S. Department of Labor, and National Labor Relations Board.

Employee Benefits Law - Representation with respect to collectively-bargained employee benefit funds.

International - Representation of U.S. companies in negotiating lease and distribution agreements, joint ventures and other arrangements in Mexico.

Recognitions & Awards

Named Southwest Super Lawyer by Law & Politics Magazine (2007)
Chambers USA, America's Leading Lawyers for Businesses, The Client's Guide (2005)
The International Who's Who of Management, Labour & Employment Lawyers (2006)

Personal

Born La Habana, Cuba

Memberships & Activities

Chairman (2005), Associated General Contractors, Labor and Employment Law Council
Lex Mundi, Labor and Employment Law Committee
American Bar Association, Labor and Employment Law Sections
Hispanic National Bar Association, Region VI past president
AAA Panel of Arbitrators, Member
National Law Center for Inter-American Free Trade, Board Member
ALI-ABA Labor Law of NAFTA program, Chair
ALI-ABA Faculty Employee Benefits Course
ALI-ABA Labor Employment Advisory Panel

Other Professional Experience

Field Attorney with the National Labor Relations Board

Presentations & Publications

• Adjunct Professor, University of Arizona College of Law (2001-2002)

• Field Attorney, National Labor Relations Board

• Labor Law Enforcement in Mexico, co-author, National Law Center for Inter-American Free Trade

• Frequent speaker and contributor of articles on employment-related topics

• Contributing author of Employee Benefits Law, ABA Section of Labor and Employment Law

• How to Take a Case before the NLRB, Chapter Editor, ABA Section of Labor and Employment Law

• Associated General Contractors Labor and Employment Law Symposiums, presenter ABA Labor Section Committee on Practice and Procedure ALI-ABA Labor and Employee Benefits Courses of Study, Lecturer

Community Involvement

National Law Center for Inter-American Free Trade, Board of Directors
ALI - ABA Faculty

Education

Tulane University (M.B.A. and J.D.)
Stetson University (B.A., Political Science/Economics)

Court Admissions

United States Supreme Court
Supreme Courts of Arizona, Louisiana, Nevada, Texas, and the District of Columbia
United States Court of International Trade

Languages Spoken

Spanish

NLRB arranges for two-Member Board
December 28, 2007 by Ross Runkel at LawMemo

• NLRB arranges for two-Member Board to issue decisions.

• NLRB delegates litigation authority to General Counsel.

The NLRB took the following actions December 20, announced December 28:

            Anticipating a loss of two members when Congress adjourns in January, the National Labor Relations Board has unanimously decided to temporarily delegate to the General Counsel authority on all court litigation matters that otherwise would require Board authorization.  This delegation will give the General Counsel full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the National Labor Relations Act.  The Board issued a similar delegation of authority to the General Counsel in 1993 and 2001.

            The sitting members are Wilma B. Liebman, Peter C. Schaumber, Peter N. Kirsanow, and Dennis P. Walsh.  Former Chairman Robert J. Battista's term expired on December 16, 2007, leaving one vacancy.  Members Kirsanow and Walsh are serving in recess appointments that will expire at the sine die adjournment of the current session of Congress.

            Under these circumstances, the Board also delegated its powers to Members Liebman, Schaumber, and Kirsanow. This action will permit Members Liebman and Schaumber, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases.  In 2005, a three-member Board issued a similar delegation permitting a two-member quorum to issue decisions.

            The temporary delegations, decided on December 20, 2007 and announced today, will be effective as of midnight tonight.  They will be revoked when the Board returns to at least three members.  In announcing the delegations, the Board stated that it has "a continuing responsibility to fulfill its statutory obligations in the most effective and efficient manner possible."

            The Board acted pursuant to Section 3(b) of the Act, which provides that

[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.  ...  A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.

In addition to the statutory language, the Board relied on the legal analysis and U. S. Circuit Court precedent set forth in the March 4, 2003 opinion issued by the Office of Legal Counsel of the U.S. Department of Justice (OLC) in response to the Board's May 16, 2002 request for OLC's opinion whether the Board may issue decisions during periods when three or more of the five seats on the Board are vacant.  OLC's opinion concluded that "if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained."

The Board has historically relied on this reasoning where one member of a three-member Board is disqualified or recused from participating on the merits of a case. The Board also noted that OLC's opinion does not distinguish between decisions that were pending at the time of the delegation of authority to the three-member Board and decisions that are submitted to the Board after the delegation and the departure of the third member.

Shopping mall cannot prevent newspaper employees from urging boycott of mall tenants
December 27, 2007 by Ross Runkel at LawMemo

Fashion Valley Mall v. NLRB (California 12/24/2007) (4-3)

The Supreme Court of California granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. The court held that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

Union members employed by a newspaper distributed leaflets to customers entering and leaving the store of a tenant in a shopping mall. (This was to protest the tenant running ads in the newspaper, which the union claimed treated its employees unfairly.) Mall officials required the union members to leave because they did not have a Mall-issued permit. In order to obtain a permit, an applicant must agree not to urge a boycott of any shopping mall tenant.

The union filed unfair labor practice charges with the National Labor Relations Board (NLRB), and the Board ruled that the Mall violated Section 8(a)(1) by maintaining its permit requirement, which had the purpose and effect of shielding tenants from otherwise lawful consumer boycott handbilling. The Mall petitioned the DC Circuit for review, and the DC Circuit asked the California Supreme Court to clarify the following question: "Under California law, may [the Mall] maintain and enforce against the Union its [permit rule]?" The California court answered in the negative, thus assuring that the DC Circuit will uphold the NLRB decision.

The California court noted that the California constitution grants greater protection for free speech than the federal constitution does. A private shopping mall "can be a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks." Robins v. Pruneyard Shopping Center, 23 Cal3d 899, affirmed in Pruneyard Shopping Center v. Robins, 447 US 74 (1980).

After reviewing Pruneyard and other intervening decisions, the court held that the shopping mall's rule was viewpoint-neutral but not content-neutral "because it prohibits speech that urges a boycott while permitting speech that does not," and therefore is subject to strict scrutiny. The mall's purpose of maximizing tenants' profits "is not compelling compared to the Union's right to free expression."

The DISSENT argued that Pruneyard was wrong and has been rejected overwhelmingly by other jurisdictions. Even if Pruneyard is not overruled, it can be distinguished on the ground that the activity involved in this case is not compatible with the normal use of the property, which is to allow the "businesses on the premises to do business."

Earlier report on this case: Workplace Prof Blog: California Shopping Malls are Public Forums

NLRB losing its quorum?
December 21, 2007 by Ross Runkel at LawMemo

As of January 1 there will be only two Members of the National Labor Relations Board.

Will they be a quorum for conducting business?

The full Board has five Members.

At the end of December 16, the number dropped to four because of the expiration of the term of appointment for Chairman Battista.

At the end of December 31, the terms of Members Kirsanow and Walsh will expire because they are recess appointees who were not approved by the Senate.

That will leave two: Wilma B. Liebman (Democrat) and Peter C. Schaumber (Republican).

So how can two be a quorum? Watch this.

About two years ago, a roughly similar event occurred. There were only three Members, and one of their terms was about to expire. On Aug. 26, 2005, Chairman Battista and Members Liebman and Schaumber delegated to themselves, as a three-member group, all of the Board's powers in anticipation of the expiration of then Member Schaumber's term on Aug. 27, 2005. Pursuant to this delegation, the remaining two Board Members (Chairman Battista and Member Liebman) constituted a quorum of the three-member group with the authority to issue decisions and orders in unfair labor practice and representation cases. This appears to be permissible under Section 3(b) of the National Labor Relations Act.

So, before the year ends, I expect a similar delegation to three Members, with the surviving two becoming a quorum.

And don't look for any recess appointments by the President. The Senate has figured out a way to keep itself in session so there will be no "recess" and the President will not have the chance.

NLRB bombs use of email for union organizing
December 21, 2007 by Ross Runkel at LawMemo

On Chairman Battista's last day in office the NLRB dropped two bombs.

The case: The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007). This was another 3-2 decision, along party lines.

Part one was expected:

An employer does not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations."

This is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.

Part two is a bit more radical:

What happens when an employer allows employees to use emails for some non-work purposes, but forbids email use for organizing purposes? The NLRA prohibits employers from discriminating against union activity? So what does it mean to "discriminate"?

The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and "group" or "organizational" postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis, "rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals." The majority overruled the Board's decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.

Thus, on the last day in which the Bush Board commanded a majority of the NLRB, it adopted a position that has been discussed for many years, but that had been a definite minority position.

Professor Jeffrey M. Hirsch at Workplace Prof Blog has a lengthy comment on this case - Major NLRB Internet and Discrimination Decision - in which he says "The majority's analysis here is weak" and " This makes no sense at all."

US Supreme Court will decide labor preemption case
November 20, 2007 by Ross Runkel at LawMemo

The US Supreme Court announced today that it will review the 9th Circuit's judgment in Chamber of Commerce v. Brown (certiorari granted 11/20/2007) [Details, briefs]

Oral argument is expected to be scheduled for March or April 2008.

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."

Sitting en banc, the 9th Circuit held that these two sections "do not undermine federal labor policy, are not preempted by the NLRA [National Labor Relations Act] and do not violate the First Amendment." The court reasoned that (1) these sections are not preempted by the NLRA under either Machinists preemption (Lodge 76, International Assn of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)); and (2) these sections do not violate the 1st Amendment, because (consistent with Rust v. Sullivan, 500 US 173 (1991)) they, "like various federal acts, require[ ] only that those who accept government grant and program funds use them for the purpose for which they were given."

The "Question Presented" in the petition for certiorari:

"Is the State of California’s regulation of noncoercive employer speech about union organizing, California Assembly Bill 1889, Cal. Gov’t Code §§ 16645.2, 16645.7, preempted by federal labor law?"

Chamber v Brown at the Supreme Court
October 23, 2007 by Ross Runkel at LawMemo

I'm betting that the US Supreme Court will grant certiorari in Chamber of Commerce v. Brown, to review the 9th Circuit's 12-3 en banc decision.

Friday the US Solicitor General filed an amicus brief urging the Court to grant certiorari, and taking the position that the 9th Circuit's decision was wrong. [Click here for details and briefs.]

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." 

Sitting en banc, the 9th Circuit held that these two sections "do not undermine federal labor policy, are not preempted by the NLRA [National Labor Relations Act] and do not violate the First Amendment." The court reasoned that (1) these sections are not preempted by the NLRA under either Machinists preemption (Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)); and (2) these sections do not violate the 1st Amendment, because (consistent with Rust v. Sullivan, 500 US 173 (1991)) they, "like various federal acts, require[ ] only that those who accept government grant and program funds use them for the purpose for which they were given." 

This case has the perfect ingredients for a grant of certiorari:

• There is a split of authority among the lower courts.


• The case involves fundamental legal issues that are important on a national scale:


• Whether California has interfered with employers' rights of free speech (either under the 1st amendment or Section 8(c) of the NLRA).


• Whether California has a right to control the use of funds that employers receive from the state.


• Whether federal legislation (the National Labor Relations Act) preempts the state statute.

It may be another month or so before the Court decides whether to take this case. If it does, then it will be more months before an oral argument, and then more time before a decision.

For more discussion of this case:

• SCOTUSblog: Government Recommends Grant in No. 06-939, Chamber of Commerce v. Brown


• Workplace Prof Blog: Solicitor General Recommends Supreme Court Hear Challenge to State Financial Accountability Acts
  

NLRB policy shifts
October 20, 2007 by Ross Runkel at LawMemo

In a three day flurry, the NLRB issued several decisions announcing changes in the Board's policies and legal interpretations. Most of them were pro-employer, with the Board's vote divided along party lines.

• New rules for voluntary recognition bar.

• GC must prove salts have "genuine interest" in employment .

• Reasonably based lawsuits do not violate the Act.

• At-will replacements permanently replace strikers.

• Recognizing union after merger not dependent on due process.

• Revised election ballot.

• Employee misconduct discovered through employer's unlawful conduct.

• Backpay: GC has burden as to employee seeking work.

New rules for voluntary recognition bar.

Dana Corporation, 351 NLRB No. 28 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/28.htm

The NLRB (3-2) has modified the recognition bar rules for card-based recognitions, whether or not the voluntary recognition is pursuant to a neutrality or card-check agreement. In a nutshell: "No election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition.  If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed."

GC must prove salts have "genuine interest" in employment .

Toering Electric Company, 351 NLRB No. 18 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/18.htm

The NLRB (3-2) has modified the rules for the application of Section 8(a)(1) to employer refusals to hire or to consider hiring an applicant because of union considerations, requiring the General Counsel to prove that an applicant was "genuinely interested in seeking to establish an employment relationship with the employer."

Reasonably based lawsuits do not violate the Act.

BE&K Construction Co., 351 NLRB No. 29 (September 29, 2007)
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.htm

The Board, in a 3-2 decision, held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act, regardless of the motive for bringing the suit.

At-will replacements permanently replace strikers.

Jones Plastic & Engineering Co., 351 NLRB No. 11 (September 27, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35111.htm

The Board announced that at-will employment status does not detract from an employer’s otherwise valid showing that it has permanently replaced striking employees.  The Board overruled Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.

Recognizing union after merger not dependent on due process.

Raymond F. Kravis Center for the Performing Arts, 351 NLRB No. 19 (September 28, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35119.htm

In a 3-0 decision, the Board modified its standard for determining under what circumstances a union merger or affiliation may relieve an employer of its obligation to recognize and bargain with an incumbent union.  Reversing precedent, the Board determined that an employer could not withdraw recognition after a merger or affiliation merely because the merger or affiliation was not conducted with adequate “due process.”  Rather, the Board held that the employer’s obligation to recognize the union continues unless the merger or affiliation resulted in changes so significant as to alter the identity of the bargaining representative.

Revised election ballot.

Ryder Memorial Hospita, 351 NLRB No. 26 (September 28, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35126.htm

The Board has revised its official election ballot to explicitly include language that asserts the Board’s neutrality in the election process and disclaims the Board’s participation in the alteration of any sample ballots. The Board said that this language will preclude any reasonable impression by employees that the Board endorses a particular choice in any election and, accordingly, it eliminates the need for the Board to engage in a case-by-case evaluation of allegedly objectionable altered sample ballots.

Employee misconduct discovered through employer's unlawful conduct.

Anheuser-Busch, Inc., 351 NLRB No. 40 (September 29, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35140.htm

The Board, by a 3-2 vote, reaffirmed its 2004 holding that the Act prohibits the Board from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer. Without bargaining with the union, Anheuser-Busch installed hidden surveillance video cameras.  Through use of the cameras, Anheuser-Busch learned that certain employees were engaged in misconduct, and it disciplined or discharged 16 of them.

Backpay: GC has burden as to employee seeking work.

St. George Warehouse, 351 NLRB No. 42 (September 30, 2007)..
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35142.htm

The Board, by a 3-2 vote, modified its procedures in backpay cases.  Under the new rule, the General Counsel will have the burden of producing evidence concerning employees’ efforts to find interim employment after an unlawful discharge. The employer retains the ultimate burden of proof, but once the employer shows that comparable jobs were available the General Counsel must produce the employee to testify or offer other competent evidence of the employee’s interim job search.

NLRB's new rules for voluntary recognition bar
October 03, 2007 by Ross Runkel at LawMemo

The NLRB (3-2) has modified the recognition bar rules for card-based recognitions, whether or not the voluntary recognition is pursuant to a neutrality or card-check agreement.

Dana Corporation, 351 NLRB No. 28 (September 29, 2007)

In a nutshell:

"No election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed."

The Board majority said:

"Metaldyne Corporation and Dana Corporation (the Employers) independently entered into separate neutrality and card-check agreements with the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL–CIO. Subsequently, the Employers recognized the Union upon a showing of majority support of the respective unit employees. Shortly after the Employers' recognition of the Union (22 days for the Metaldyne unit and 34 days for the Dana unit), employees in each unit filed a petition seeking a decertification election. The Metaldyne petitions were supported by over 50 percent of the unit employees, while the Dana petition was supported by over 35 percent of the unit employees. The Regional Director for Region 6 and the Regional Director for Region 8 dismissed the Metaldyne and Dana petitions, respectively, based on an application of the Board's recognition-bar doctrine. According to this doctrine, an employer's voluntary recognition of a union, in good faith and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a rival union for a reasonable period of time. A collective-bargaining agreement executed during this insulated period generally bars Board elections for up to 3 years of the new contract's term.

"The Petitioners filed timely requests for review of the Regional Directors' dismissals. Through their petitions, the employees sought a change in Board law in order to permit them to express their views, either for or against unionization, in a decertification election. The Board granted review to re-examine its recognition-bar doctrine.

"Our inquiry here requires us to strike the proper balance between two important but often competing interests under the National Labor Relations Act: 'protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.' It is a well-recognized judicial doctrine that 'the Board should be left free to utilize its administrative expertise in striking the proper balance.'] In striking that balance here, we find that the immediate post-recognition imposition of an election bar does not give sufficient weight to the protection of the statutory rights of affected employees to exercise their choice on collective-bargaining representation through the preferred method of a Board-conducted election.

"In order to achieve a 'finer balance' of interests that better protects employees' free choice, we herein modify the Board's recognition-bar doctrine and hold that no election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed. The requisite showing of interest in support of a petition may include employee signatures obtained before as well as after the recognition. These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union's recognition.

"Modifications of the recognition bar cannot be fully effective without also addressing the election-bar status of contracts executed within the 45-day notice period, or contracts executed without employees having been given the newly-required notice of voluntary recognition. Consequently, we make parallel modifications to current contract-bar rules as well such that a collective-bargaining agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and 45 days have passed without a valid petition being filed.

"The Board's usual practice is to apply a change in law retroactively, including in the case in which the change is announced. However, we find that an exception is warranted here to avoid inequitable disruption of bargaining relationships established on the basis of the former voluntary recognition-bar doctrine. We therefore apply the recognition-bar modifications adopted herein prospectively only. Accordingly, we affirm the Regional Directors' administrative dismissals of the petitions before us under extant law."

NLRB tightens up on "salts."
October 03, 2007 by Ross Runkel at LawMemo

A "salt" is a job applicant sent by a union to either (a) get a job and advocate for unionism from within, or (b) set the employer up for an unfair labor practice.

It is, of course, unlawful for an employer to refuse to hire an applicant merely because the applicant plans on expressing pro-union views.

In Toering Electric Company, 351 NLRB No. 18 (September 29, 2007), the NLRB (3-2) has modified the rules for the application of Section 8(a)(1) to employer refusals to hire or to consider hiring an applicant because of union considerations, requiring the General Counsel to prove that an applicant was "genuinely interested in seeking to establish an employment relationship with the employer."

The Board majority said:

"Section 8(a)(3) of the Act makes it an unfair labor practice for an employer 'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .' The protection of this provision has been extended to applicants for employment. Consequently, an employer can violate Section 8(a)(3) by refusing to hire or to consider hiring an applicant because of union considerations.

"In many instances, there is no question that an individual who applies for work with an employer does so pursuant to a good-faith interest in accepting a job if offered on acceptable terms. However, in some cases, it is apparent that alleged applicants have no such interest. In this case, we address such behavior under the standard adopted by the Board in FES for determining whether there has been a discriminatory refusal to hire or consider for hire. First, we define an applicant entitled to statutory protection against hiring discrimination as someone genuinely interested in seeking to establish an employment relationship with the employer. Second, we impose on the General Counsel the burden of proving under FES that an alleged discriminatee meets this definition.

"Requiring that the General Counsel prove an applicant's genuine interest in securing employment is essential to the effective administration of the Act. Our decision today will insure that only those for whom Congress intended statutory protection as actual or potential employees will receive it. As discussed below, the Board's experience has shown that in some hiring discrimination cases, particularly those involving 'salting' campaigns, unions submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with an intent to seek employment, were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer. The absence of a clear and consistently applied requirement that the General Counsel must prove an applicant's genuine interest in securing employment has opened the door to these abusive tactics. By imposing this requirement under FES, we shall prevent those who are not in any genuine sense real applicants for employment from being treated by the Board as if they were."

NLRB seeks briefs on handbilling issues
September 05, 2007 by Ross Runkel at LawMemo

NLRB has invited parties and amici to file briefs (due October 2, 2007) in New York New York Hotel (pending oral argument)

Press release and Notice: http://www.nlrb.gov/shared_files/Press%20Releases/2007/R-2632.htm

Related briefs and documents: http://www.nlrb.gov/research/frequently_requested_documents.aspx

Issues include whether Ark Las Vegas Restaurant Corporation's employees, who are employed by Ark on the premises of the New York New York Hotel and Casino, have a statutory right to distribute handbills at various places on hotel property during the employees' off-duty hours. The handbills were aimed at guests and customers and protested Ark's nonunion status and wages. Oral arguments before the full Board are scheduled for November 9, 2007.

Briefs may address the following, plus any other relevant issues:

1. Without more, does the fact that the Ark employees work on NYNY's premises give them Republic Aviation rights (324 U.S. 793 [1945]) throughout all of the non-work areas of the hotel and casino?

2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY's employees?

3. Or should they be considered the same as nonemployees when they distribute literature on NYNY's premises outside Ark's leasehold?

4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?

5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)? Compare United Food & Commercial Workers, 74 F.3d at 298. (Derivative access rights, the Supreme Court has held, stem 'entirely from on-site employees' Section 7 organizational right to receive union-related information.' ITT Industries, 251 F.3d at 997.)

Minority bargaining required?
August 17, 2007 by Ross Runkel at LawMemo

Some unions have asked the NLRB to require employers to bargain with unions that represent less than half of the employees in a bargaining unit.

The unions request that the NLRB engage in a rulemaking process to adopt the following proposed rule:

Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.

Text of Petition - Rulemaking regarding Members-Only Minority-Union Collective Bargaining.

Text of Letter - Labor Law Professors Endorsing Members-Only
Non-Majority Collective Bargaining Under The NLRA

Thanks to EFCA Updates (by Kilpatrick Stockton LLP) for making these documents available.

NLRB: Calculating backpay for salters
June 05, 2007 by Ross Runkel at LawMemo

NLRB has changed the rules for proving how much back pay to award in "salting" cases.

Here is the full NLRB press release, with a link to the decision:

Tuesday, June 5, 2007

NLRB ANNOUNCES NEW EVIDENTIARY STANDARDS FOR ESTABLISHING DURATION OF BACKPAY PERIOD IN CERTAIN DISCRIMINATION CASES

In Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, the National Labor Relations Board has announced new evidentiary standards for determining the duration of the backpay period when the discriminatee is a “salt.”

In cases of this kind, a union has sent members to seek employment from a nonunion employer with the intent of obtaining employment and then organizing the employer’s employees. Those members are commonly referred to as “salts.” Under the law, if the employer discharges or refuses to hire the salt because of his union affiliation or activity, the employer’s conduct is unlawful.

In this decision, the Board found unanimously that the employer, Oil Capitol Sheet Metal, Inc., violated Section 8(a)(3) and (1) of the National Labor Relations Act by refusing to hire a salt. The Board split, however, over the remedy to be ordered. The decision is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow. Members Wilma B. Liebman and Dennis P. Walsh dissented in regard to the remedy. The decision is posted on the Board’s website at www.nlrb.gov.

Prior to this decision, the remedy for an unlawful discharge or refusal to hire included the employer’s payment of backpay to the employee for the period from the unlawful act until the employer made a valid offer of reinstatement (or instatement, in the case of an unlawful refusal to hire). The Board applied a presumption that, if hired, the “salt” would have stayed on the job for an indefinite period. If the job was a construction job, the Board applied a further presumption that the employer would have transferred the employee to other jobsites when the job from which he was discharged (or for which he should have been hired) came to an end.

The Board majority declined to continue to apply those presumptions. The Board reasoned that they are inconsistent with the reality of salting. The reality is that salts, when hired, stay on the job until they succeed in their organizational effort or reach the point where such efforts are unsuccessful. In either situation the union typically then sends the salt to seek to organize the employees of another nonunion employer.

The Board recognized that this will not always be the case. There may be instances where the union will permit a member to work for the targeted employer for an indefinite period.

However, the Board majority view is that the union is in the better position to explain its intentions, and thus the burden to establish the fact should be on the union. The burden should not be on the employer to prove the contrary.

In its opinion, the majority stated:

The traditional presumption that the backpay period should run from the date of discrimination until the respondent extends a valid offer of reinstatement loses force both as a matter of fact and as a matter of policy in the context of a salting campaign. Indeed, as discussed below, rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer. In this context, the presumption has no validity and creates undue tension with well-established precepts that a backpay remedy must be sufficiently tailored to expunge only actual, not speculative, consequences of an unfair labor practice, and that the Board’s authority to command affirmative action is remedial, not punitive.

In reaching its conclusions, the majority relied in part on the Fourth Circuit’s decision in Aneco v. NLRB, 285 F.3d 326, where the court deemed “indefensible” the Board’s assumption that the hired salt would have worked for the respondent employer for 5 years.

The majority acknowledged that the parties to the case before it had not sought a reversal of Board law. However, the Board said that it was its responsibility to ensure that its remedies are compensatory and not punitive.

The majority also held that instatement to the job would not be ordered where the “salt” would have left the job prior to the Board’s decision.

In dissent, Members Liebman and Walsh criticized the majority for overturning Board precedent endorsed by two appellate courts and rejected by none, without any party having raised the issue, without the benefit of briefing, and without any sound legal or empirical basis. The dissent would have continued to treat salts as the Board treats all other employees who are subjected to employment discrimination. The dissent stated that, in backpay cases, it is fundamental that the Board resolves factual uncertainties against the wrongdoer, the employer. This approach is not unique to the Board. Rather, as the Supreme Court stated in Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946), the “most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own
wrong has created.” In the view of the dissenting members, the majority’s new approach not only violates that well-established principle of resolving remedial uncertainties against the wrongdoer, but it treats salts “as a uniquely disfavored class of discriminatees, notwithstanding the Supreme Court’s ruling that salts are protected employees under the National Labor Relations Act. NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995).”

The dissent also stated that the majority’s reasons for adopting its new evidentiary approach were “dubious at best,” and that it was unreasonable to presume that salts would leave employment at some fixed point in time, known by a union in advance. For those same reasons, the dissenters found that there was no justification for the majority’s departure from the presumption that a salt, like any other employee at a construction site, would have been transferred to one of the employer’s other projects upon completion of the project at the site where the discrimination occurred.

###

For comments on this case:

A Little Less Salt in the Wound, NLRB Changes Presumption on Salt Backpay, from Jottings By an Employer's Lawyer.

NLRB Changes Standard for Proving Damages in Salting Cases, from Workplace Prof Blog.

Nurse was not "supervisor" under NLRA
March 25, 2007 by Ross Runkel at LawMemo

The battle continues over the line between "supervisor" and "employee," and the DC Circuit just reversed the NLRB's decision that a registered nurse was a supervisor. The opinion was written by Senior Judge Harry Edwards - a recognized expert on labor law.

Jochims v. NLRB (DC Cir 03/23/2007), reversing Wilshire at Lakewood, 345 NLRB No. 80 (2005) (2-1).

Lisa Jochims filed an unfair labor practice charge against the employer asserting unlawful discharge for engaging in protected activities. The parties agreed that if Jochims was an "employee" and not a "supervisor" under the National Labor Relations Act (NLRA), the employer committed an unfair labor practice. The National Labor Relations Board's (NLRB) initial decision found that Jochims was an "employee" and the supplemental decision found that Jochims was a "supervisor." The DC Circuit reversed the NLRB's supplemental decision.

The NLRB cited four factors in finding Jochims was a supervisor: (1) she completed written reports of employee misconduct; (2) she sent two employees home for misconduct as directed by management; (3) she let two employees leave work for family emergencies; and (4) she completed part of one evaluation of a probationary employer.

The NLRA defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action." Under the three part test, employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment, and (3) their authority is held in the interest of the employer.

The court stated that this case did not rest on the "responsibly direct" portion of the definition of "supervisor," and was not about Jochims involvement in a "system" of progressive discipline.

In response to the NLRB's four factors finding Jochims had supervisory authority, the court found: (1) there was insufficient evidence to show supervisory status where no evidence was produced showing that Jochims' authority to write up an employee was a prerequisite to discipline, or that it routinely resulted in discipline against an employee, or that it inevitably resulted in the initiation of discipline; (2) Jochims neither made the decision to send the employees home nor recommended any such action; (3) NLRB precedent made clear that supervisory authority did not necessarily lie where authority to let employees leave early was limited to emergency situations; and (4) an evaluation did not indicate supervisory authority unless it effectively recommended discipline or directly affected an employee's job status.

NLRB takes on email issues
January 13, 2007 by Ross Runkel at LawMemo

Can a company prevent employees from using email to talk about union matters? Is use of company email a mandatory subject of collective bargaining?

These issues and more come before the NLRB in a rarely-seen oral argument on March 27, 2007.

The case: The Guard Publishing Co (Case 36-CA-8743-1) | Notice | Briefs and other documents

And the NLRB is soliciting amicus briefs (due February 9) on the following questions:

1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
6. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
7. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?

NLRB Case production report
November 09, 2006 by Ross Runkel at LawMemo

Here is the NLRB press release dated November 6, 2006:

NLRB REPORTS ON CASE PRODUCTION IN FY 2006

The National Labor Relations Board issued 477 decisions during fiscal year 2006, which ended September 30. Of this total, 324 were unfair labor practice (C) cases, and 153 were representation (R) cases. In the previous fiscal year, the Board issued 508 decisions (348 C, 160 R).

While production declined by 6% since FY 2005, the inventory of pending cases was reduced for the fourth year in a row (from 484 at the beginning of the fiscal year to 305 at the end).

In a statement, Chairman Robert J. Battista remarked:

We regret the drop in case production, but we issued some difficult decisions in FY 2006, and that had an adverse impact on our overall production. We are hopeful, with a full Board for all of FY 2007, we will see improved productivity. On the positive side, we were able to keep lowering our case backlog. We would like to take this opportunity to thank our staffs for their hard work and dedication to the mission of the agency.

The Board did not fully accomplish its FY 2006 goal under the Government Performance and Results Act (GPRA). The Board’s performance goal was to issue 90% of C cases that, if not issued by September 30, 2006, would then have been pending for more than 17 months; and 90% of R cases, that if not issued by September 30, 2006, would then have been pending for more than 12 months. In other words, C cases assigned on or before April 30, 2005 and R cases assigned on or before September 30, 2005. The Board began FY 2006 with 295 GPRA C cases and 129 GPRA R cases. The Board issued 137 GPRA C cases (46%) and 100 GPRA R cases (77%) by the end of FY 2006.

Chamber of Commerce v. Lockyer: California wins
September 21, 2006 by Ross Runkel at LawMemo

My prediction came true. California can prohibit employers from using state-grant funds "to assist, promote, or deter union organizing."

Chamber Of Commerce Of The US v. Lockyer (9th Cir 09/21/2006) (en banc) (12-3).

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 had ruled in April 2004 that the NLRA preempted the statute, but the 15-member en banc court thought otherwise.

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."

Sitting en banc, the 9th Circuit held that these two sections (enacted as part of Assembly Bill 1889 (AB1889)) "do not undermine federal labor policy, are not preempted by the NLRA [National Labor Relations Act] and do not violate the First Amendment." The court reasoned that 1) these sections are not preempted by the NLRA under either Machinists preemption (Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)); and 2) these sections do not violate the 1st Amendment, because (consistent with Rust v. Sullivan, 500 US 173 (1991)) they, "like various federal acts, require[ ] only that those who accept government grant and program funds use them for the purpose for which they were given."

Here's what I said in May 2005:

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.

Anticipatory withdrawal of recognition didn't work
August 28, 2006 by Ross Runkel at LawMemo

Q: At what point in time do you look to see whether an incumbent union has lost its majority support, so the employer can withdraw recognition?

A: When the current collective bargaining agreement expires.

Levitz Furniture, 333 NLRB 717 (2001) allows an employer to withdraw recognition of a union only if it can prove that the union had, in fact, lost majority support.

But what if the tide keeps shifting?

In Parkwood Development Center, NLRB (08/22/2006), the employer-union contract was set to expire on March 8. During the previous December the employer received a petition from a majority of employees saying they no longer wished to be represented by the union.

So, in December, the employer told the union that it would honor the existing contract but would not negotiate for a successor agreement.

Later, the union gathered signatures on a petition and also gathered authorization cards that indicated that the union had majority support. The union gave these to the employer on March 7 - the day before the contract expired.

The employer followed through on its statement that it would not negotiate.

The NLRB said the employer committed an unfair labor practice. The key date was March 8, when the contract expired. On that date, all the employer had was conflicting evidence.

Towboat pilots - an easy "Kentucky River" case
August 24, 2006 by Ross Runkel at LawMemo

Towboat pilots are "supervisors," not "employees" under National Labor Relations Act Section 2(11), says the NLRB. Not the biggest of the "Kentucky River" cases, yet interesting.

American River Transportation Co (NLRB 08/18/2006), decided by a three-Member panel. Not controversial enough for the full Board to address.

The Board held that towboat pilots had the authority, in the interest of the employer, to both responsibly direct the towboat crew and to assign work.

The majority opinion (Chairman Battista and Member Schaumber) said:

"Here, the Respondent’s pilots have the authority to make assignments and reassignments of the crew and order the crew to perform particular tasks such as standing lookout, repairing lights, cleaning windows, and fixing depth finders. During the course of navigation, the pilots use independent judgment to determine that the assignment of certain tasks to the crew is necessary for the safe passage of the boat and tow. The pilots do not check with others before ordering that action be taken. That the pilots’ instructions and orders often are routed through the mate does not diminish the pilots’ responsible direction inasmuch as the instructions and orders remain those of the pilots’. The pilots are in charge of the after watch and serve as the sole wheelhouse official responsible for the safety of the vessel, crew, and cargo. They have authority over the crew during emergencies. Finally, the pilots also possess the following secondary indicia of supervisory authority; higher pay, better benefits, and better sleeping quarters."

Member Walsh concurred in the result but not the rationale. He did "not agree that the majority's analysis ... is necessarily the proper way to harmonize the result in this case with the concerns expressed by the Supreme Court in NLRB v. Kentucky River Community Care, 532 US 706 (2001)." He concurred based on previous NLRB cases on pilots, but does "not necessarily agree" with those cases.

More "Kentucky River" cases to come soon:

• Oakwood Healthcare, Inc., Case 7-RC-22141
• Beverly Enterprises - Minnesota, Inc., Cases 18-RC-16415 and 18-RC-16416
• Croft Metals, Inc., Case 15-RC-8393

Oakwood and Beverly Enterprises deal with "charge nurses" in the health care industry.

Croft Metals deals with "leadmen" and "load supervisors" in a manufacturing setting.

NLRB Members and General Counsel confirmed
August 07, 2006 by Ross Runkel at LawMemo

The Senate has confirmed Peter C. Schaumber and Wilma B. Liebman to be Members of the National Labor Relations Board for 5-year terms and Ronald Meisburg to be NLRB General Counsel for 4 years.

Two Members continue to serve in recess appointments: Peter Peter N. Kirsanow and Dennis P. Walsh.

The terms of the Members and the General Counsel are as follows:

Member Schaumber was nominated by President George W. Bush on June 30, 2005 for a second term expiring August 27, 2010. His first term expired on August 27, 2005 and he received a recess appointment by the President on September 1, 2005. Member Schaumber began his legal career as an Assistant United States Attorney for the District of Columbia. After government service, he entered private practice subsequently serving as a full-time labor arbitrator before coming to the Board.

Member Liebman was nominated on August 2, 2006 by the President to serve a third term expiring August 27, 2011. She has served as a Member since November 14, 1997 when she was appointed by President Clinton and confirmed by the Senate to a 5-year term that expired on December 16, 2002. Member Liebman was reappointed by President Bush and confirmed by the Senate to a second term that will expire on August 27, 2006. She previously served for 2 years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). Prior to that she served as counsel to the International Union of Bricklayers and Allied Craftworkers (1990-1994) and the International Brotherhood of Teamsters (1980-1989).

General Counsel Ronald Meisburg was nominated by President Bush in July 2005 to be NLRB General Counsel for a 4-year term and was recess appointed by the President on January 4, 2006 to serve as General Counsel. He previously served under a recess appointment by President Bush as a Member of the Board from January 12, 2004 to December 8, 2004. From 1980-2003, he was in the private practice of labor law in Washington, D.C., most recently as a shareholder in the firm of Ogletree, Deakins, Nash, Smoak & Stewart.

Unanimous NLRB gives guidance on successor's obligation to hire
August 05, 2006 by Ross Runkel at LawMemo

LawMemo's popular NLRB Law Memo today reports on an NLRB decision that clarifies a successor employer's duty to hire, setting initial terms and conditions, and remedies.

The unanimous, full-Board decision clarified (1) the analytical framework for deciding whether a successor employer unlawfully refused to hire the predecessor's employees in order to avoid a bargaining obligation, (2) the initial terms and conditions for employees formerly employed by the predecessor, and (3) the appropriate remedy for refusal to hire and for unilateral implementation of terms and conditions. Planned Building Services, Inc (NLRB 07/31/2006).

The successor employer is a building maintenance company that was awarded contracts to clean buildings at which the employees had been represented by an SEIU local. The employer did not hire most of the predecessors' employees.

(1) The NLRB held that proof of unlawful refusal to hire in a successorship context is controlled by Wright Line, 251 NLRB 1083 (1980) and not by FES, 331 NLRB 9 (2000). Under Wright Line, the General Counsel has the burden to prove the employer's unlawful animus, and then the burden shifts to the employer to prove that it would have taken the same action without the unlawful animus. The FES case applies in "normal" refusal-to-hire cases, and requires the General Counsel to prove unlawful motivation plus (a) that the employer was hiring or planned to do hiring, and (b) that applicants had the relevant experience. The additional two elements in FES do not apply in successorship cases because (a) the predecessor's employees presumptively meet the successor's requirements and (b) the successor obviously must fill vacant positions.

(2) When a successor employer plans to retain all of the predecessor's employees, then the successor cannot unilaterally set beginning terms and conditions of employment. In addition, a successor who (as in this case) discriminatorily refuses to hire the predecessor's employees cannot unilaterally set beginning terms and conditions of employment.

(3) One part of the normal remedy is a make-whole remedy including back pay and benefits, measured with reference to the predecessor's terms and conditions of employment. There is always an issue of how long the back pay should run at the predecessor's rate, because the successor might negotiate a new wage rate or bargain to an impasse. The Board held that it will continue to issue its traditional make-whole remedy. However, the successor may, in a compliance hearing, prove (a) that it would not have agreed to the monetary provisions of its predecessor's collective bargaining agreement and (b) either the date on which it would have bargained new terms or the date on which it would have bargained to impasse.

President nominates Liebman for another NLRB term
August 02, 2006 by Ross Runkel at LawMemo

Wilma B. Liebman has served as a Member of the National Labor Relations Board (NLRB) since 1997, and President Bush has nominated her for another five-year term. She is one of two Democrats on the five-Member Board. [White House announcement]

Three current Members and the General Counsel are serving in recess appointments. Perhaps the Senate will confirm all of them some day. Labor Law Blog, who broke the news, thinks the Senate will approve all these appointments this week: President Bush Nominates Wilma B. Liebman to Serve Another Term on the NLRB. We'll see.

The key players at the NLRB, with links to biographies:

• Chairman Robert J. Battista
• Member Wilma B. Liebman
• Member Peter C. Schaumber (recess appointment)
• Member Peter Peter N. Kirsanow (recess appointment)
• Member Dennis P. Walsh (recess appointment)
• General Counsel Ronald E. Meisburg (recess appointment)

Union can't photograph employees during literature distribution
August 01, 2006 by Ross Runkel at LawMemo

In a dramatic reversal of its position in a 1999 case, the NLRB says a union engaged in objectionable conduct when its agents photographed employees during the union's distribution of campaign literature. In a 3-2 decision along party lines the Board overturned an NLRB-conducted election and ordered a new election.

The case: Randell Warehouse of Arizona, Inc. and Sheet Metal Workers’ International Association, Local 359 (NLRB 07/26/2006).

Detailed summary: NLRB Finds Union Photographing Of Employees During Organizing Activities Objectionable And Orders Second Election.

The Board found that employees have a right to accept or not accept the union's literature, and that photographing them as they make that choice would reasonably be coercive. The union did not provide the employees with any legitimate justification for the photographing. Thus, the Board found that the Union's conduct tended to interfere with employee free choice in the election, and directed that a second election be held. The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow. Members Wilma B. Liebman and Dennis P. Walsh dissented.

In a previous decision, the Board had applied a different rule for union photography than for employer photography. This new decision stresses that the rules for photographing employees who are engaging in protected conduct should be the same regardless of whether the party doing the photographing is a union or an employer.

The rule:

In the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.

Thanks to David Kight of Spencer Fane Britt & Browne LLP for the tip.

"Kentucky River" cases and the breakdown of the system
July 16, 2006 by Ross Runkel at LawMemo

I have harsh words for the President, the Senate, and the NLRB.

The "Kentucky River" cases have been awaiting decision for a long time. Three cases will determine how one decides which workers are classified as "employees" entitled to the protections of the National Labor Relations Act, and which ones are "supervisors."

It was May 2001 when the US Supreme Court decided NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), and told the NLRB that the Board's test for determining supervisory status was "inconsistent" with the statute. Three pending cases are called "Kentucky River" cases, in honor of that Supreme Court decision.

It's more than five years later, and the Board has not fixed things.

In part, it's because the Board has had lots of vacancies, and for a lot of the time has not been at its full five-Member strength. The Board dislikes issuing "big" decisions without having five voting Members.

The blame for the vacancies rests at the feet of the President and the Senate, who, simply put, have not carried out their responsibilities to appoint and confirm NLRB Members. That has been irresponsible.

The Board must take blame for some of the delay. Although the Board has been at full strength for seven months, and the cases are fully briefed, the cases remain undecided.

Employers and employees deserve better.

For more on these cases, see NLRB - "Kentucky River" Cases.

Airport security company is under NLRB jurisdiction
June 29, 2006 by Ross Runkel at LawMemo

A company that provides passenger and baggage screening services pursuant to a contract with the Transportation Security Administration is subject to the National Labor Relations Board's jurisdiction.

Firstline Transportation Security, Inc (347 NLRB No. 40 - 06/28/2006).

The Board split 4-1. Details: NLRB Law Memo 06/29/2006.

Rejecting national security concerns, the Board said:

"The Board has been confronted with issues concerning national security and national defense since its early days. Our examination of the relevant precedent reveals that for over 60 years, in times of both war and peace, the Board has asserted jurisdiction over employers and employees that have been involved in national security and defense. We can find no case in which our protection of employees' Section 7 rights had an adverse impact on national security or defense."

Seems right to me.

Inflatable rats featured in NLRB General Counsel report
June 16, 2006 by Ross Runkel at LawMemo

NLRB Law Memo says:

General Counsel Ronald Meisburg has issued his first report on cases decided on a request for advice or on appeal from a Regional Director's dismissal of unfair labor practices, plus requests for Board authorization for injunction proceedings under Section 10(j).

Cases include a General Counsel decision to ask the NLRB to modify a 2001 holding that contract language standing alone is sufficient to establish a Section 9(a) relationship in the construction industry, a decision on whether a union's display of an inflatable rat is a secondary boycott, and a proposed remedy for an employer unilaterally implementing surveillance cameras.

Get the whole thing here: Report on Case Developments January through March 2006 (06/15/2006)

Appearance of bias at the NLRB
June 10, 2006 by Ross Runkel at LawMemo

In nine cases the NLRB has exposed an ALJ's practice of writing decisions by copying from briefs filed by the General Counsel. Last week seven got sent back for re-assignment to a different ALJ.

An utter waste of time and money for the Board, the parties, the other ALJs, and the taxpayers.

In NLRB cases, trials are held in front of administrative law judges - ALJs. High standards of competence and integrity are crucial.

For the latest seven cases, see NLRB Law Memo 06/09/2006.

For an excellent discussion of these developments, see Workplace Prof Blog - An ALJ Who Really Needs a Good Clerk, written by Professor Jeff Hirsch.

Jeffrey M. Hirsch, Associate Professor of Law, University of Tennessee College of Law. Professor Hirsch joined the UT law faculty in August 2004 after working for four years in the Appellate Court Branch of the National Labor Relations Board in Washington, D.C. He received a J.D. degree from New York University in 1998 and, following graduation, was a judicial clerk for the Honorable Haldane R. Mayer on the U.S. Court of Appeals for the Federal Circuit and the Honorable Robert R. Beezer on the U.S. Court of Appeals for the Ninth Circuit. While in law school, Professor Hirsch received the ABA/BNA Prize for excellence in labor and employment law and the Seymour M. Goldstein Prize for academic excellence in labor relations. His scholarly work has been published in the Seton Hall Law Review, the Fordham Law Review, and the New York University Environmental Law Journal.

Dana Corp neutrality agreement before the NLRB
April 11, 2006 by Ross Runkel at LawMemo

The NLRB issued a new call for amici briefs relating to a new case on neutrality agreements. Here is the whole press release, including the Board Order:

State bar is NLRB-exempt
April 08, 2006 by Ross Runkel at LawMemo

National Labor Relations Act Section 2(2) exempts political subdivisions from the NLRB's jurisdiction. Is the State Bar of New Mexico one of these? Yes (2-1).

State Bar of New Mexico (NLRB 03/24/2006).

The question is slightly more complex than one might think, simply because of the way the New Mexico State Bar is organized and operated.

It was originally established by statute to operate as an agency of the New Mexico Supreme Court. In 1978 the legislature revoked its statute, and the Supreme Court adopted a rule "continuing" the state bar, which then was organized as a non-profit corporation.

The NLRB split 2-1 along party lines. The two Republicans (Chairman Battista and Member Schaumber) found that the state bar is exempt because it was created by the state to constitute a department or administrative arm of the state government. They thought it was especially significant that the Supreme Court of new Mexico has the final say on almost everything the state bar does.

Member Walsh thought the focus should be more on the day-to-day operations, and the fact that the New Mexico Supreme Court has little or no control over personnel and labor relations issues.

My view:

• This decision is an example of how the NLRB can split along political party lines.
• I wonder why this case (a matter of first impression for the Board) was decided by a panel of three instead of the full Board. Perhaps they didn't think it was important enough.

Well settled NLRB rules
February 20, 2006 by Ross Runkel at LawMemo

I just learned about a new web site / blog that is unique.

• Title: It is well settled that ...
• Concept: Quotes From NLRB Decisions Since January 14, 2004 Recognizing What Is "Well Accepted," "Well Established," Or "Well Settled."
• Author: David Hoskins, Member of Frost Brown Todd LLC, with his office in Louisville, KY.
• David's main blog: Kentucky Employment Law Notes

Go see it now.

Can union require its employees to join the union?
February 13, 2006 by Ross Runkel at LawMemo

Unions have employees. Can a union require, as a condition of employment, that its own employees become and remain members of the union?

It all depends on what these employees do for a living, and what their job duties are, according to a recent decision by the NLRB.

Union field representatives: The union can require these employees to belong to the union. This is because, as the NLRB has said, these employees, "in conducting the [union's] business, might be asked to explain how the [union] functions as a collective-bargaining representative, or why it is desirable for workers to organize." Retail Store Employees Local 428, 163 NLRB 431 (1967).

Clerical employees: Not in this case, says a majority of the NLRB. Stationary Engineers Local 39, 346 NLRB No. 34 (01/31/2006).

After review of the job duties of clerical employees in this case, Chairman Battista and Member Schaumber determined that the clerical employees have no responsibility for explaining to members or others the benefits of membership or how the union functions. They contended that the Union has failed to show that membership in the Union is either "necessary" for, or even "reasonably related" to, the clericals' proper performance of their job duties. Accordingly, they concluded that union membership is not necessary for the performance of clerical functions in this case, finding that the union violated the Act.

Member Liebman would find that a union can require its employees to be members of the union if membership is reasonably related to their performance of the job duties. She wrote: "The majority's view interprets Retail Store Employees far too narrowly, undervaluing the clerical employees' duties as they relate to serving the membership of the Union." She further wrote: "[T]he [administrative law judge's] key finding - that 'the clericals who perform duties dealing with membership issues and collective bargaining are performing the type of work which permits [the Union] to require them to be members and thus sisters or brothers to the members it represents' - is consistent with record evidence and the principles of Retail Store Employees."

NLRB policy changes arriving soon
January 19, 2006 by Ross Runkel at LawMemo

The NLRB is political. There! I said it.

On major policy issues, expect the Board to split 3-2. Three Republicans vs. two Democrats. This is the way things have been for decades, with the only difference being which political party was in control.

Now that the President has made some recess appointments, the Board is at its full strength of five Members.

Already we've seen these big changes in NLRB policy:

• Non-union employees do not have Weingarten rights.
• Graduate student assistants are not "employees" under the National Labor Relations Act.
• Temporary employees are excluded from a unit of permanent employees unless all parties consent.
• Threats of plant closure will not be presumed disseminated.

I'm expecting these changes during 2006:

• Return to the rule that an employer can withdraw recognition from a union if the employer has a good-faith uncertainty as to the union’s majority status.
• New standards in "salting" cases.
• Medical "house staff" will not be "employees."
• Less use of mail ballots.
• Dispatchers could be classified as "supervisors."

More discussion: NLRB Reversals During the Bush Administration.

Electronic deadlines at the NLRB
January 09, 2006 by Ross Runkel at LawMemo

Read the Rules. You can file NLRB documents electronically. Your item is due at the "official closing time" of the Board - 5:00 p.m.

Comes now a lawyer who thought things were due by midnight. She figured things out shortly before 5:00 and actually made the filings (exceptions and a brief) at 5:30 and 5:42.

Then she filed a motion to file her documents late. The Board split 2-1 in her favor. WGE Federal Credit Union, 346 NLRB No. 19 (12/30/2005).

The majority said the lawyer was guilty of neglect, but concluded that they should excuse the neglect, noting that the attorney tried mightily, and in good faith, to complete the exceptions in time and, while she missed the deadline by a matter of minutes, no one was prejudiced by the delay.

I have to notice (and wonder about) the fact that it was two Republicans against one Democrat. There are many NLRB policies on which Democrats and Republican predictably disagree. I don't understand this particular division along party lines.

NLRB recess appointments
January 06, 2006 by Ross Runkel at LawMemo

The President has recess appointed one NLRB Member and a new General Counsel.

Peter N. Kirsanow was appointed to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2008.

Ronald E. Meisburg was appointed to be General Counsel of the National Labor Relations Board.

This bring the Board membership up to four (of a possible five): three Republicans and one Democrat.

The nomination of Democrat Dennis P. Walsh to be a Member of the NLRB is still pending in the Senate.

As the Labor Law Blog has pointed out:

The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office.

NLRB Member Peter N. Kirsanow, of Ohio, was a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he served as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law."

This biography from the web site of Benesch Friedlander Coplan & Aronoff, LLP.

Mr. Kirsanow focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues.

Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corp. and labor counsel for the city of Cleveland.

He has extensive experience in public sector employment matters as well as in industries such as heavy manufacturing, trucking, health care, radio and television and employee leasing.

Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, is on the advisory board of the National Center for Public Policy Research and has been an adjunct professor at Cleveland Marshall College of Law.

Mr. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.

NLRB General Counsel Ronald E. 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.

EEOC at full strength
January 03, 2006 by Ross Runkel at LawMemo

As of today the EEOC is back to full strength of five Members. Christine Griffin was sworn in. EEOC press release.

That's good, but here's my complaint: The NLRB should also have five Members, but the powers that be in the Senate have not seen fit to confirm the President's nominations. In addition, we still await Senate confirmation of a new General Counsel.

As a result, the NLRB is working with only three Members and an Acting General Counsel.

With all due respect to the EEOC, my view is that the NLRB has a greater need for a fully-staffed Board.

The President has made his nominations. Now it's the Senate's turn.

As usual, nobody in Washington listens to me.

NLRB GC meets performance goals
December 02, 2005 by Ross Runkel at LawMemo

Arthur F. Rosenfeld, Acting General Counsel of the National Labor Relations Board (NLRB) issued what is surely his last report: Summary of Operations (Fiscal Year 2005).

Highlights:

• The Office of the General Counsel met all of its performance goals under the Government Performance and Results Act of 1993 in its Headquarters and Regional Offices.
• A 97.2 percent settlement rate in meritorious unfair labor practice cases.
• Initial elections in union representation cases were conducted in a median of 38 days from the filing of the petition, with 94.2 percent conducted in 56 days.
• An 87.2 percent “win rate” in whole or in part in litigation before the Administrative Law Judges and the Board.
• A total of $84,628,885 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, and 2,842 employees were offered reinstatement.
• The United States Courts of Appeals decided 73 enforcement and review cases involving the Board, compared with 62 in FY 2004. Of these cases, 94.5 percent were enforced in whole or in part, and 78.1 percent were won in whole.

Peter N. Kirsanow nominated for NLRB
November 16, 2005 by Ross Runkel at LawMemo

The Whitehouse announced on November 16, 2005: "The President intends to nominate Peter N. Kirsanow, of Ohio, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring August 27, 2008. Mr. Kirsanow is currently a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he serves as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law."

This biography from the web site of Benesch Friedlander Coplan & Aronoff, LLP.

Mr. Kirsanow focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues.

Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corp. and labor counsel for the city of Cleveland.

He has extensive experience in public sector employment matters as well as in industries such as heavy manufacturing, trucking, health care, radio and television and employee leasing.

Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, is on the advisory board of the National Center for Public Policy Research and has been an adjunct professor at Cleveland Marshall College of Law.

Mr. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.

NLRB still has only three Members
October 14, 2005 by Ross Runkel at LawMemo

I'm unhappy with the President and the Senate for not appointing and confirming a full five-Member NLRB.

The public deserves better. So do employers, employees, and labor unions.

• It is not difficult to find highly qualified and easily confirmable people.


• Republicans should be outraged.


• Employers should be outraged.


• Unions should be delighted.


• The general public should be, at the very least, disappointed.

Perhaps I should be quiet. After all, limping along with only three Members, the Board has decided about the same number of cases as it did with five. See NLRB Reports on Case Production in FY 2005. But all that means is that they have churned out decisions. The bulk were routine, and not difficult.

Meanwhile, two things:

• No important cases will get decided with a three-Member Board. They will put these cases on hold. The backlog might not grow in numbers, but it will be larger in importance.
• No important change in policy will happen with a three-Member Board. (See NLRB Reversals During the Bush Administration.) There is an unwritten rule that it takes three votes to change policy. We have two Republicans and one Democrat, and it will take three Republicans to get any big changes.

Employers can use state funds to fight unions
September 06, 2005 by Ross Runkel at LawMemo

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."

The 9th Circuit, after a rehearing, ruled that the NLRA preempted the statute. Chamber of Commerce of the United States v. Lockyer (9th Cir 09/06/2005) (2-1).

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."

The 9th Circuit held that these provisions are preempted by the National Labor Relations Act (NLRA) under both the "Machinists" preemption doctrine (Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) and the "Garmon" preemption doctrine (San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)).

The majority opinion said that the California statute

"chills employers from exercising their free speech rights that are explicitly protected by Congress under the National Labor Relations Act. In doing so, the statute undermines the delicate balance established by Congress as between labor unions and employers. In addition, the California statute interferes with the National Labor Relations Act’s extension of exclusive jurisdiction to the National Labor Relations Board (“NLRB”) for the adoption and enforcement of representation election rules."

My view: The second opinion is considerably more persuasive than the original opinion, but probably wrong.

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.

Schaumber gets NLRB recess appointment
September 01, 2005 by Ross Runkel at LawMemo

• 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.

NLRB Law Memo
August 07, 2005 by Ross Runkel at LawMemo

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

Article: Prohibiting employee conversations
July 10, 2005 by Ross Runkel at LawMemo

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 article: "National Labor Relations Board Holds That Union-Free and Unionized Employers Cannot Prohibit Employees From Having “Negative Conversations” About Their Managers"

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.

Secret surveillance
July 06, 2005 by Ross Runkel at LawMemo

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.

NLRB nominations: An interesting switch
June 30, 2005 by Ross Runkel at LawMemo

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.

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.

Bannering was not unlawful secondary picketing
June 10, 2005 by Ross Runkel at LawMemo

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.

Senate: Please confirm two NLRB nominees
May 26, 2005 by Ross Runkel at LawMemo

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.

En banc rehearing on use of state funds (corrected)
May 22, 2005 by Ross Runkel at LawMemo

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.

Walsh re-nominated to NLRB
May 05, 2005 by Ross Runkel at LawMemo

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.

NLRB's new "full consent election" agreement
March 04, 2005 by Ross Runkel at LawMemo

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."

Hotel unions escape NLRB charge
February 25, 2005 by Ross Runkel at LawMemo

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]

NLRB continues to watch non-union employers
February 02, 2005 by Ross Runkel at LawMemo

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.

Meisburg renominated to NLRB
January 26, 2005 by Ross Runkel at LawMemo

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.

NLRB allows e-filing for all documents in all cases
January 21, 2005 by Ross Runkel at LawMemo

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.

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