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NLRB "recess" appointments were unconstitutional; Board lacked a quorum
January 25, 2013 by Ross Runkel at LawMemo

Noel Canning v. NLRB (DC Cir 01/25/2013)

The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.

On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.

At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.

Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."

Lots of chatter from all over:



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NLRB's recent significant decisions
December 21, 2012 by Ross Runkel at LawMemo

The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.

The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.

Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.




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NLRB: Firing for Facebook posting was legal
October 01, 2012 by Ross Runkel at LawMemo

Let the NLRB's press release tell the story:

The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]

The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.



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NLRB Member Terence Flynn resigns
May 27, 2012 by Ross Runkel at LawMemo

NLRB Member Terence F. Flynn submitted his resignation to the President and to NLRB Chairman Mark Gaston Pearce on May 26.

[Press release]

His resignation is effective July 24, 2012. He has immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.

The NLRB’s Inspector General recently issued two reports on allegations of improper conduct by Member Flynn during the period when he was serving as a Chief Counsel to Member Peter Schaumber.

Flynn was sworn in as a Board Member on January 9, 2012, following a recess appointment by the President.

Flynn's resignation leaves the Board with four Members - three Democrats and one Republican.



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NLRB invites briefs on whether faculty members are employees.
May 22, 2012 by Ross Runkel at LawMemo

The National Labor Relations Board is inviting briefs from interested parties on the question of whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managers.

[Official Notice]

The case is Point Park University (06-RC-012276). [Case documents] At this Pittsburgh-based university, faculty members petitioned for an election and voted in favor of representation by the Communications Workers of America, Local 38061. However, the university challenged the decision to hold the election, claiming that the faculty members were managers and therefore ineligible for union representation.

The case ultimately was presented to the U.S. Court of Appeals for the D.C. Circuit, which remanded it to the Board for a fuller explanation of its original conclusion that the faculty’s role at the university is not managerial. Specifically, the court asked the Board to identify which of the factors set forth by the Supreme Court in its 1980 decision NLRB v. Yeshiva University are most significant in deciding whether faculty members are statutory employees or managers.

After a new decision by an NLRB Regional Director again concluded that the Point Park faculty members were statutory employees, the Board granted the University’s request to take up the issue once more.

To aid the Board in addressing the matters raised in the court’s remand, the Board has invited briefs. In its Notice and Invitation to File Briefs, the Board listed eight questions that the briefs should address. and invited submissions of empirical and practical evidence. Briefs should be filed with the Board on or before July 6, 2012.



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NLRB election rule is enjoined for lack of quorum
May 14, 2012 by Ross Runkel at LawMemo

The US District Court for the District of Columbia has ruled that the National Labor Relations Board's December 22, 2011 rule amending its election procedures is invalid because the Board did not satisfy the statutory quorum requirement in adopting the rule.

Chamber of Commerce v. NLRB (Dist DC 05/14/2012)

Two of the Board's three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote.

As the court put it,

"The NLRB's claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."

"Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court's decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle."



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Judge upholds NLRB notice posting rule, but not penalties for failure to post
March 02, 2012 by Ross Runkel at LawMemo

National Association of Manufacturers v. NLRB (D. Dist of Columbia 03/02/2012)

The National Association of Manufacturers and National Right to Work Legal Defense and Education Foundation sued to enjoin enforcement of the NLRB's new rule (taking effect April 30) requiring all employers subject to the NLRA to post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures.

The court held that

"the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule - the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law."

As part of the same case - National Association of Manufacturers v. NLRB (D. Dist of Columbia 03/02/2012) - The US District Court for the District of Columbia declined to allow plaintiffs to "shoehorn a challenge to the President's recent recess appointments into" the case challenging the NLRB's notice posting rule.

The court said:

"the rule was promulgated by a quorum of undisputedly duly authorized members well before the recess appointments were announced, and it is set to go into effect automatically on April 30." "The Court declines this invitation to take up a political dispute that is not before it."

OK, no surprises here.



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NLRB: Certain mandatory arbitration agreements violate federal labor law
January 06, 2012 by Ross Runkel at LawMemo

D. R. Horton, Inc. and Michael Cuda. Case 12–CA–25764 (01/03/2012)

The NLRB has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.

The Board said:

"In this case, we consider whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial. For the reasons stated below, we find that such an agreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. In the circumstances presented here, there is no conflict between Federal labor law and policy, on the one hand, and the FAA and its policies, on the other."

The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

Chairman Mark Gaston Pearce and Member Craig Becker joined in finding the agreement unlawful. Member Brian Hayes was recused from the case. The decision was finalized on Jan. 3, but was issued publicly by the agency Jan. 6.

The decision requires Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all forums.

It is noteworthy that this decision will apply to private sector employers whether or not they are unionized.



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President making three recess appointments to NLRB
January 04, 2012 by Ross Runkel at LawMemo

President Obama today announced his intent to recess appoint three individuals to serve as Members of the National Labor Relations Board.

We expect the appointments to be challenged on the ground that the Senate was not in "recess."

Sharon Block, Democrat, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, Republican, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, Democrat, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE's central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

Press release



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NLRB postpones rights posting rule to April 30
December 23, 2011 by Ross Runkel at LawMemo

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.

The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.

The new implementation date is April 30, 2012.

Most private sector employers (whether unionized or not) will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction.



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Chamber v. NLRB seeks to enjoin new election rule
December 21, 2011 by Ross Runkel at LawMemo

The Chamber of Commerce of the United States of America sued the NLRB on December 20 seeking to enjoin implementation of the NLRB's new rule on elections.

[Here is the Complaint]

The Chamber claims that the rule exceeds the Board's statutory authority and violates the first and fifth amendments.



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NLRB adopts new election rule
December 21, 2011 by Ross Runkel at LawMemo

The NLRB has adopted its controversial new rule designed "to reduce unnecessary litigation and delays."

The rule will be published in the Federal Register on December 22, and is due to take effect on April 30, 2012.

[Press release]
[Rule text]

Main features:

1. Authorize hearing officers to limit the evidence introduced at the pre-election hearing to that relevant to a genuine issue of fact material to whether a question of representation exists. Currently, parties can challenge the scope of the unit and raise issues as to whether potential voters are supervisors or confidential employee. These issues would now be resolved after the election is held.

2. Eliminate the parties' right to file post-hearing briefs, giving hearing officers discretion to either allow or disallow them.

3. Eliminate parties’ right to seek Board review of regional director’s pre-election rulings while allowing parties to seek post-election review of all such rulings that have not been rendered moot by the election.

4. Eliminate the policy that the regional director normally will not schedule an election until a date 25 days after the direction of election in order to permit the Board to rule on any request for review.

5. make Board review of a regional director’s or judge’s disposition of post-election disputes discretionary after both stipulated and directed elections.



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President nominates two NLRB Members
December 15, 2011 by Ross Runkel at LawMemo

According to a White House Announcement (12/14/2011), the President has announced the intention of nominating two Democrats as Members of the National Labor Relations Board: Sharon Block (Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor) and Richard Griffin (General Counsel for International Union of Operating Engineers). Also pending at the Senate is the nomination of Republican Terence F. Flynn (Chief Counsel to NLRB Board Member Brian Hayes).

The term of Democrat Craig Becker will expire at the end of December. This will leave only two Members, less than the quorum necessary to decide cases.

We anticipate that the Board will enter 2012 with only two Members, and that this situation will continue for a considerable period of time.

Sharon Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Richard Griffin is the General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE's central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.



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NLRB will amend election rules
December 01, 2011 by Ross Runkel at LawMemo

The NLRB voted 2-1 to adopt a resolution to take action on a number of amendments to its election rules. [Text of Resolution (11/30/2011)]

Although the exact wording of the amendments is yet to be drafted, they would:

1. Authorize hearing officers to limit the evidence introduced at the pre-election hearing to that relevant to a genuine issue of fact material to whether a question of representation exists. Currently, parties can challenge the scope of the unit and raise issues as to whether potential voters are supervisors or confidential employee. These issues would now be resolved after the election is held.

2. Eliminate the parties' right to file post-hearing briefs, giving hearing officers discretion to either allow or disallow them.

3. Eliminate parties’ right to seek Board review of regional director’s pre-election rulings while allowing parties to seek post-election review of all such rulings that have not been rendered moot by the election.

4. Eliminate the policy that the regional director normally will not schedule an election until a date 25 days after the direction of election in order to permit the Board to rule on any request for review.

5. make Board review of a regional director’s or judge’s disposition of post-election disputes discretionary after both stipulated and directed elections.



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NLRB announces details on election rules amendments
November 29, 2011 by Ross Runkel at LawMemo

Following is the full text of an NLRB press release dated 11/29/2011:

National Labor Relations Board Chairman Mark Gaston Pearce today released details of his proposal to amend certain election procedures in order to reduce unnecessary litigation in disputed cases. The amendments are drawn from a comprehensive overhaul of the election process proposed this summer through the federal rulemaking process.

The Chairman’s resolution will be considered and put to a vote at a public meeting of the Board set for Wednesday afternoon at 2:30. The text of the Chairman’s resolution is at http://nlrb.gov/sites/default/files/documents/3089/final_rule_resolution_11-28.pdf, and an explanation of the amendments can be found at http://nlrb.gov/publications/rules-regulations/notice-proposed-rulemaking/proposed-amendments-nlrb-election-rules-an. The meeting will be streamed live from the Board’s website at http://www.nlrb.gov.

If the resolution is approved by a majority of the Board, a final rule will be drafted and circulated among the members for a subsequent vote. No final rule can issue without such approval.

Chairman Pearce issued the following statement in connection with the resolution:

“The vast majority of NLRB-supervised elections, about 90%, are held by agreement of the parties – employees, union and employer – in an average of 38 days from the filing of a petition. The amendments I propose would not affect those agreed-to elections.

Rather, the amendments would apply to the minority of elections which are held up by needless litigation and disputes which need not be resolved prior to an election. In these contested elections, employees have to wait an average of 101 days to cast a ballot. And as several employees testified at our hearing in July, that period can be disruptive and painful for all involved.

Today an election can be held up by pre-election appeals to the Board, which in the end are rarely granted and even more rarely result in a changed outcome. An election can also be delayed by raising irrelevant issues in pre-election hearings, which are intended to be quick and non-adversarial. Such unnecessary litigation wastes enormous amounts of time and resources for the parties and the agency. The amendments I propose would simply address these procedures, by 1) limiting subjects that can be raised in a pre-election hearing to those that are directly relevant to the election, and 2) postponing any election-related appeals to the Board until after the election.

I continue to believe that modernizing and streamlining the Board’s processes as originally proposed would greatly increase the efficiency of the agency in carrying out its statutory mission. However, because the Board may lose a quorum in a matter of months, I am putting forward a more limited resolution at this time. Other portions of the original rule will remain under consideration by the Board for possible future action.”

Following is the full text of Chairman Pearce's proposed resolution:

NATIONAL LABOR RELATIONS BOARD

BOARD RESOLUTION NO. 2011-1

WHEREAS on June 22, 2011, the National Labor Relations Board published a Notice of Proposed Rulemaking (NPRM) (76 FR 36812), proposing to amend its rules and regulations governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining with their employer; and

WHEREAS on July 18 and 19, 2011, the Board held a public meeting at which it heard testimony from sixty-six witnesses concerning the rule proposed in the NPRM; and

WHEREAS the Board has received over 65,000 written comments pursuant to the NPRM and has reviewed all of the comments received;

NOW, THEREFORE, IT IS HEREBY RESOLVED that the Board take the following action on the NPRM:

1. Prepare a final rule to be published in the Federal Register containing the following significant elements:

a. Amend Sections 102.64(a) and 102.66(a) of the Board’s Rules and Regulations (R&R) to state that the purpose of the hearing described in Section 9(c) of the Act is to determine if a question of representation exists that should be resolved by an election and to give the hearing officer authority to limit the evidence introduced at the hearing to that relevant to a genuine issue of fact material to whether a question of representation exists;
b. Amend R&R Section 102.66 to provide that post-hearing briefs may be filed with permission of the hearing officer;
c. Amend R&R Section 102.67 to eliminate parties’ right to seek Board review of regional director’s pre-election rulings while allowing parties to seek post- election review of all such rulings that have not been rendered moot by the election;
d. Eliminate the language in Section 101.21(d) of the Board’s Statements of Procedure that states that the regional director normally will not schedule an election until a date 25 days after the direction of election in order to permit the Board to rule on any request for review;
e. Amend R&R Section 102.65 to clarify the standard for seeking special permission to appeal to the Board;
f. Amend R&R Sections 102.62(b) and 102.69 to make Board review of a regional director’s or judge’s disposition of post-election disputes discretionary after both stipulated and directed elections;
g. Substitute a revised statement of the general course and method by which the Board’s functions are channeled and determined, to be published in the final rule, for current Part 101, Subpart C, of the Board’s Statements of Procedure; and
h. Make such other amendments as may be needed to effectuate the purposes of, or conform the remainder of the existing rules to, the amendments described above;
Provided, that no final rule shall be published until it has been circulated among the members of the Board and approved by a majority of the Board.

2. Continue to deliberate on the remainder of the amendments proposed in the NPRM.




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NLRB sets vote on portions of proposed election rule
November 18, 2011 by Ross Runkel at LawMemo

The National Labor Relations Board has scheduled a Nov. 30 vote on whether to adopt a small number of the amendments to its election procedures that the Board proposed earlier this year.

In mid-June, the Board published a Notice of Proposed Rulemaking which proposed amending the rules and regulations governing the NLRB election process in order to simplify procedures, make them more uniform across regional offices, and reduce unnecessary litigation.

The Board received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July. In response to those comments, and in light of the possibility that the Board will lose a quorum at the end of the current congressional session, Board Chairman Mark Pearce will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.

The meeting of the Board’s three members, to be held at NLRB headquarters in Washington, will be open to the public, although the public may not participate. Members will discuss and vote on a resolution to accept the Chairman’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.

Members of the public and media may attend the meeting, space permitting. Requests should be sent to publicmeeting@nlrb.gov with the following text in the subject line: REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08. The meeting will also be webcast with a link available through the agency’s website, www.nlrb.gov.



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NLRB postpones date for required notice-posting to January 31, 2012.
October 05, 2011 by Ross Runkel at LawMemo

Text of 10/05/2011 press release:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

Member Brian E. Hayes dissented from the adoption of the final rule. For this reason, he agrees with any postponement of the effective date of the rule.

Most private sector employers will be required to post the 11-by-17-inch notice, which is available at no cost from the NLRB through its website, either by downloading and printing or ordering a print by mail.

For further information about jurisdiction and posting requirements, please see our Frequently Asked Questions, which will be updated frequently as new questions arise. For questions that do not appear on the list, or to arrange for an NLRB presentation on the rule, please contact the agency at questions@nlrb.gov or 866-667-NLRB.



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NLRB ALJ dismisses Facebook case
September 30, 2011 by Ross Runkel at LawMemo

In this morning's edition of Employment Law Memo, we reported:

In Karl Knaus Motors (09/28/2011), an employee made two postings on his Facebook page. An NLRB ALJ determined that one of the postings was protected and concerted activity, and that the other was neither protected nor concerted.

The ALJ decided that the employer discharged the employee for the unprotected posting, and therefore dismissed an unfair labor practice charge.

Later today the NLRB issued the following press release on this case:

Administrative Law Judge rules Chicago car dealership had overly broad employee policy, but discharged employee’s activity not protected

A National Labor Relations Board Administrative Law Judge ruled on Wednesday that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity.

The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first, the employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Though the salespeople did not directly complain to their employer that the food offerings could affect their commissions, they discussed with each other that their sales could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to and commented on the Facebook page.

On the same day, the salesman posted photos of an accident that had occurred earlier involving a vehicle from an adjacent dealership that was accidently driven into a pond. Both dealerships are part of the same ownership group. Judge Biblowitz found that while the postings involving the sales event and the subsequent exchange of comments with other employees was protected activity, the postings involving the accident were not. Further, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act.

Regarding the employee policy, Judge Biblowitz found that certain paragraphs were overly broad and tended to chill employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. Though the employer had changed the policy prior to the hearing, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.



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Liebman leaves NLRB; 3 left; headed for 2
August 27, 2011 by Ross Runkel at LawMemo

NLRB Chairman Wilma Liebman's term expires today, leaving the NLRB with three Members (out of the "normal" five Members): New Chairman Mark Gaston Pearce, Craig Becker, and Brian Hayes.

Craig Becker's recess appointment expires December 31. At that point, with only two Members, the Board will be powerless to issue even the most routine orders.

Of course, the Senate could confirm the President's nominations of Becker and Terence F. Flynn, but this seems unlikely in the present political environment.

Also, there is the possibility that the President could make additional recess appointments (which don't need Senate approval). The only problem with that is that there needs to be a recess, and it looks like Congress intends to keep itself running (formally) full-time which will deny the President the ability to make recess appointments.

Sadly, what used to be fairly routine appointments and confirmations are being held up by the political wrangling in Washington.



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NLRB to require employers to post notices of employee rights
August 25, 2011 by Ross Runkel at LawMemo

The National Labor Relations Board has issued a Final Rule [here] requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice. The rule was placed on public inspection at the office of the Federal Register on August 25. It is scheduled to be posted in the Federal Register on August 30, 2011 and will take effect 75 days later, on November 14, 2011.

Similar postings of workplace rights are required under other federal workplace laws. The 11-by-17-inch notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule.

The notice of rights will be provided at no charge by NLRB regional offices or can be downloaded from the Board website and printed in color or black-and-white. Translated versions will be available, and must be posted at workplaces where at least 20% of employees are not proficient in English.

Employers must also post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there.


Questions and Answers:

Does my company have to post the notice?

The posting requirement applies to nearly all private-sector employers subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization’s unique rules under the Act.

When will the notice posting be required?

The final rule takes effect 75 days after it is posted in the Federal Register, or on November 14, 2011.

There is no union in my workplace; will I still have to post the notice?

Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor. Will I have to post the notice?

The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?

The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

How will I get the notice?

The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.

What if I communicate with employees electronically?

In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Many of my employees speak a language other than English. Will I still have to post the notice?

Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice, and of the required link to the Board’s website, in the appropriate languages.

Will I have to maintain records or submit reports under the Board’s rule?

No, the rule has no record-keeping or reporting requirements.

How will the Board enforce the rule?

Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.

What will be the consequences for failing to post the notice?

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Can an employer be fined for failing to post the notice?

No, the Board does not have the authority to levy fines.

Was there a public comment period? What was the response?

The Board received more than 7,000 public comments after posting a notice of the proposed rule in the Federal Register. A detailed description of the comments and the Board’s response to them, including responsive modifications to the rule, may be found in the Preamble to the Final Rule.



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NLRB: No backpay remedy for undocumented immigrant workers
August 09, 2011 by Ross Runkel at LawMemo

The National Labor Relations Board ruled today that a 2002 U.S. Supreme Court decision compels the conclusion that the Board lacks remedial authority to award backpay to undocumented immigrant workers whose rights have been violated under the National Labor Relations Act, even in cases where their illegal status was known to the employer at the time of hiring.

Mezonos Maven Bakery, 357 NLRB No. 47 (08/09/2011).

A three-member panel of the Board – Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Brian Hayes – issued the unanimous decision in Mezonos Maven Bakery, with Member Craig Becker recused. The Board cited broad language in the Supreme Court decision, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002), which made clear that “awarding backpay to undocumented workers lies beyond the scope of [the Board’s] remedial authority, regardless of whether the employee or employer violated” the Immigration Reform and Control Act of 1986 (IRCA). View the decision here.

In a concurring opinion, Chairman Liebman and Member Pearce agreed that Hoffman is controlling authority and thus precludes backpay here. But they reviewed the policy implications of that result, writing that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.” Law-abiding employers who must compete with immigration-law violators also may be harmed, they wrote.

“We would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct,” they wrote.

Member Hayes agreed that Hoffman mandated the result in this case. He did not join his colleagues’ critique of that decision, expressing his view that “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment. It is the role of Congress to determine whether to alter the law in response to the Court’s decision.” Quoting the Hoffman majority’s statement that traditional remedies other than backpay were sufficient to effectuate national labor policy, Member Hayes also did not join his colleagues in suggesting what remedies might permissibly be imposed in future cases.

The seven employees in question worked for Mezonos Maven Bakery in Brooklyn for up to eight years, and were not asked for documentation when they were hired. They were fired on February 12, 2003, after complaining as a group about treatment they were receiving from a supervisor. Unfair labor practice charges were filed, the parties settled, and the Board issued an unpublished Decision and Order pursuant to a formal settlement stipulation. The Board ordered Mezonos, among other things, to offer reinstatement and to make the employees whole for lost wages and benefits, and that order was enforced by the United States Court of Appeals for the Second Circuit.

However, Mezonos later argued that it could not offer reinstatement or backpay under the Hoffman decision because the workers were undocumented. On November 1, 2006, Administrative Law Judge Steven Davis decided against the employer, finding that in this case (unlike Hoffman), it was not the workers but the employer who violated IRCA by failing to verify their work authorization status. That decision was appealed to the Board, resulting in the current decision.



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House committee subpoenas NLRB re Boeing case
August 08, 2011 by Ross Runkel at LawMemo

The House Oversight and Government Reform Committee has issued an extravagantly broad subpoena to the NLRB, asking for documents "referring or relating to the Boeing Company" and "referring or relating to the International Association of Machinists."

Could a subpoena be more broad than that?

Here is the Committee's announcement:

(WASHINGTON)--House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) issued a subpoena to the National Labor Relations Board (NLRB) and Acting General Counsel Lafe Solomon August 7 as part of its investigation into NLRB action against the Boeing Company. It compels NLRB to comply with earlier, outstanding Committee document requests submitted in May. NLRB is compelled to produce identified materials to Committee offices no later than 12:00 p.m. August 12.

"NLRB's action in the case against Boeing has the potential to create a job-killing precedent just as U.S. manufacturers are working toward economic recovery. That a Washington, D.C.-based bureaucracy could dictate the work location and parameters for a world-leading company is unprecedented in a global economy and hobbles a leading American job creator at a time of economic vulnerability," Issa said.

Chairman Issa added, "President Obama and both Democratic and Republican Members of Congress have questioned the wisdom behind NLRB's actions against Boeing. As this matter could take years to resolve and create even more crippling uncertainty for job creators, it is imperative that Congress get complete facts about NLRB's rationale and its decision making process in this matter without further delay."

The NLRB subpoena requests documents dating from January 1, 2009 covering the following:

1) Documents in the custody or control of the Office of the General Counsel or the National Labor Relations Board referring or relating to the Boeing Company.

2) Communications to or from any person in the Office of the General Counsel or the National Labor Relations Board referring or relating to The Boeing Company, including but not limited to all emails and call logs.

3) Documents in the custody or control of the Office of the General Counsel or the National Labor Relations Board referring or relating to the International Association of Machinists.

4) Communications to or from any person in the Office of the General Counsel or the National Labor Relations Board referring or relating to the International Association of Machinists, including but not limited to all emails and call logs.

# # #

The NLRB's Acting General Counsel issued this response:

Today the House Oversight Committee issued a broad subpoena compelling production of all NLRB documents related to the Boeing case, following three months of correspondence between the Committee and the NLRB Office of General Counsel. In response, Acting General Counsel Lafe Solomon said, "To the best of my knowledge, this is the first time since 1940 that the National Labor Relations Board has been the subject of a Congressional subpoena. I am disappointed and surprised by this development. For months, my staff and I have diligently tried to satisfy the Committee's desire for information while also preserving the integrity of our process and the rights of the parties in a case being actively litigated. I continue to believe that a solution is possible, and will work with the committee in the days and weeks ahead to find a reasonable and responsible balance." Since issuing the Boeing complaint on April 20, the Office of General Counsel has received numerous information requests from Members of Congress. A list of the letters and Agency responses can be found here. Three significant points are highlighted in the correspondence:


· The Agency has turned over numerous documents - more than 1000 pages in all - detailing the legal theories of the case, motions made by all parties, court transcripts, and rulings.

· The Agency stated definitively that there has been no communication with the White House regarding the Boeing case. Similarly, there has been no communication to date between the Office of General Counsel and the Board on the merits of the Boeing case. The Agency response to requests in both categories is that there are no documents to provide.

· Many of the remaining documents sought by the Committee will be made available as the trial proceeds and evidence is entered into the court record. These include statements of witnesses who will testify, and statements by Boeing and the Machinists Union whose premature disclosure could interfere with the fairness of the trial and any possible settlement negotiations. In addition, we believe that the premature disclosure of any documents from the investigative file of an open case would establish precedent that could endanger future cases.




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Remembering John Truesdale
July 05, 2011 by Ross Runkel at LawMemo

At age 89 we have lost a great man. Here is the press release from the NLRB:

Former National Labor Relations Board Chairman John C. Truesdale, whose career at the NLRB spanned six decades, died on Sunday, July 3, 2011, according to family and friends. He was 89, and had been suffering from cancer for about a year.

Mr. Truesdale’s long and distinguished NLRB career began in 1948, when he took a job as a field examiner at the agency’s Buffalo office. He later held the same position in the New Orleans office, where he met his future wife Karin, before moving to the agency’s Washington DC headquarters to work in the Office of the Executive Secretary. He later served as Executive Secretary of the NLRB for twenty years.

First appointed by President Jimmy Carter, Mr. Truesdale served four separate stints as Board Member between 1977 and 1996. He retired in 1996, but was asked to return in 1998 by President Clinton, who gave him a recess appointment and designated him to serve as Chairman. The following year he was confirmed by the unanimous vote of the Senate. Few, if any, other NLRB employees rose from an entry-level position all the way to the top as a Board Member and ultimately Chairman.

In a 1998 Washington Post article on his elevation to the Chairmanship, Mr. Truesdale was quoted as follows: "I spent my entire career trying to expedite the issuance of cases. I come in with no preconceived notions of policy but to reduce the amount of time it takes to issue decisions." During his tenure as Chairman, he used every tool at his disposal to expedite case processing, including his considerable interpersonal skills and sense of humor.

Mr. Truesdale "re-retired" from the NLRB in 2001 at the age of 80. Thereafter, he worked as a labor-management arbitrator.

On behalf of the Board, Chairman Wilma Liebman said, "John Truesdale will truly be missed. He was an exceptional public servant, a friend and role model to many, and a wonderful, warm and witty man. He was relentlessly curious about so many subjects and dedicated to the NLRB and its work. I will miss his frequent emails filled with questions, humor and personal interest. As present Executive Secretary Lester Heltzer said upon learning of John's death, 'The honor, privilege and pleasure of knowing John will always be cherished.'"

Mr. Truesdale was raised in Grinnell, Iowa, where his father was the college basketball coach, and served in the Coast Guard during World War II. He received an AB degree from Grinnell College and went on to earn a master’s degree in industrial and labor relations from Cornell University, and a JD degree from Georgetown University Law School.

He is survived by his wife Karin, a daughter, Margaret, and sons Jack, Charlie, and Andrew, and by two sisters. Arrangements for a Memorial service have not yet been announced.



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NLRB to amend election rules
June 21, 2011 by Ross Runkel at LawMemo

The NLRB has proposed significant changes in its rules for conducting representation elections. The proposals are directed at streamlining procedures, eliminating unnecessary litigation, and facilitating electronic communication and filing.

[Fact Sheet] [Proposed Rules]

Public hearings will be held on July 18 and 19. Comments deadline is August 20.

My view: These proposed rules will be adopted without any significant changes. The new rules will result in representation elections being held in a more speedy manner, which clearly tips in favor of labor unions. The Democrats on the Board are flexing their muscles.



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NLRB seeks briefs on class action arbitration issue
June 21, 2011 by Ross Runkel at LawMemo

The NLRB is inviting briefs [link to Invitation] on the following issue:

Did the respondent violate Section 8(a)(1) of the [National Labor Relations Act] by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Briefs are due July 20.

My view:

This is a case of extraordinary importance because -

(1) The US Supreme Court has held that an arbitration agreement containing a class action waiver is enforceable under the Federal Arbitration Act even if such a provision would be considered unconscionable under the laws of a particular state. AT&T Mobility LLC v. Concepcion (US Supreme Court 04/27/2011).

(2) If the NLRB holds that such an agreement violates the National Labor Relations Act, then employers who maintain such agreements will be subject to unfair labor practice charges. So, employers would not be able to implement such an agreement in spite of the Supreme Court decision.

(3) Any decision by the NLRB in this case will apply to both unionized and non-union employers in the private sector.




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