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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.

LawMemo publishes Employment Law Memo.

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.

* * *

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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.

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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

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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."

LawMemo publishes Employment Law Memo.

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?"

LawMemo publishes Employment Law Memo.

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
  

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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."

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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."

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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.)

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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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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)

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

"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.

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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)

LawMemo publishes Employment Law Memo.

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.

LawMemo publishes Employment Law Memo.

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: