Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

Attached is a decision from the NLRB in D. R. Horton, Inc. (decided the last day of Member Becker's term). In a 2-0 decision with Member Hayes recusing himself, the Board finds that an employer violates Section 8(a)(1) of the Act when it requires its employees who are 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 and working conditions against their employer in any forum, arbitral or judicial. The Board finds such waivers to unlawfully restrict the Section 7 rights of employees to engage in concerted activity for their mutual aid and protection, notwithstanding the provisions of the Federal Arbitration Act.

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This afternoon, the White House announced President Obama's intention to recess appoint three members of the National Labor Relations Board, including Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, Chief Counsel to Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers. A link to the NLRB press release which contains the prospective members' biographies is found here. For now, these appointments render the Board's recent procedural actions taken in anticipation of its loss of a quorum moot. We anticipate that industry groups will challenge the President's authority to make recess appointments while Republican Senators hold pro forma congressional sessions. We will continue to follow this closely and update you on any future developments.

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This post was written by William Bevan, III, John A. DiNome and Joel S. Barras.

On November 30, 2011, the National Labor Relations Board (“Board”) voted 2-1 to advance certain proposed rules to expedite the current union election process and significantly limit employer participation in that process. The proposed rules will be drafted in final form for eventual publication in the Federal Register and re-voted by the Board. Uncertainty lingers, however, because the final vote must occur before expiration of Member Craig Becker’s recess appointment when Congress adjourns for the year. While the proposed rules are not as onerous as originally proposed by the Board, (1) they would effectively minimize an employer’s time to express its views about bargaining with its employees and (2) will eliminate any legal pre-election challenge to contested issues such as the scope of the bargaining unit and voter eligibility.

The New Rules

The Board is responsible for administering representation elections under the National Labor Relations Act (“NLRA”). Historically, the Board adheres to an internal policy designed to schedule elections within approximately six weeks after the filing of a representation petition. As indicated by the Board’s annual statistics, the actual elections in the overwhelming majority of cases fell within this six-week benchmark, because most are usually conducted pursuant to election agreements.

The Board’s proposed rules would significantly reduce the time between the filing of a representation petition and the election. This cut from filing to election leaves employers with significantly less time to present their views on unionization and bargaining to their employees and to attempt to convince employees that the union’s side of the story is not the only side.

Specifically, the proposed changes that the Board acted on include:

1. Authorizing hearing officers to limit any pre-election hearing issues only to whether an election should be held. Previously, employers could challenge election unit scope, and voter inclusion/exclusion eligibility issues, such as supervisory, casual, or confidential employee status. These issues will now be raised only after the election.
2. Authorizing the hearing officer to decide whether to permit the parties to file post-hearing briefs. Previously either party had the right to file post-hearing briefs.
3. Eliminating all pre-election review and consolidating pre- and post-election issues in a single, post-election request for review.
4. Eliminating the Board’s discretionary option to postpone elections to resolve a pre-election request for review.
5. Eliminating the practice of special appeals at the hearing stage of the proceeding.
6. Giving the Board discretion on whether to hear and decide appeals, thus eliminating what had been either party’s guaranteed right to appeal on election issues.

The Board has yet to act on a number of additional proposed changes which still require further deliberation.

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The U.S. House of Representatives Committee on Education and the Workforce has approved the Workforce Democracy and Fairness Act (“Bill”), which is part of the House Republican jobs agenda aimed at removing regulatory hurdles to creation of jobs. The Bill is a legislative challenge to a recent NLRB Rule. That Rule provides for conducting union representation elections within 10 days of the filing of a representation petition with the NLRB— a move favored by unions to expedite elections and, unintentionally of course, to drastically limit an employer’s time to provide employees with a fuller understanding of the facts prior to a vote. In contrast to the NLRB Rule, the Bill would mandate a waiting period of at least 35 days before an election.

The Bill also addresses the NLRB’s recent decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). That decision adopted a new approach for determining an appropriate bargaining unit. Specialty Healthcare “opens the door” to smaller, more narrowly defined bargaining units that, being smaller, take fewer votes to become unionized. Under the Specialty Healthcare standard, an employer that argues that a proposed unit inappropriately excludes certain employees must prove that the excluded employees share “an overwhelming community of interests” with employees in the proposed unit. The proposed House legislation would reinstate the more than 50 year old NLRB standard for determining employee-voter inclusions and exclusions in the proposed bargaining unit. That traditional standard includes in the proposed voting unit all employees who share a sufficient—rather than “overwhelming”-- community of interests.

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In a related matter involving a different NLRB Rule, several national trade associations have filed federal lawsuits to prevent the NLRB from enforcing another Rule that would require employers to post a notice notifying employees of their rights under the National Labor Relations Act. The multiple judicial challenges-- now consolidated in the District of Columbia in federal court—are before the court on motions for summary judgment to declare the Rule unlawful and block the Board from implementing and enforcing it.

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This post was written by William Bevan, III and Joel S. Barras.

As we noted in our August 26 posting, the National Labor Relations Board (“Board”) has adopted a Rule that requires all employers covered by the National Labor Relations Act (“Act” or “NLRA”) to post a notice notifying employees of their rights under the Act. This requirement will apply to some 6 million private-sector employers, but not agricultural, railroad, airline or very small employers. The Rule is to inform employees – both unionized and non-unionized – of their rights under the Act, similar to posting requirements under the FLSA, FMLA and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors.

Originally, the Rule was effective November 14, 2011. However, the NLRB has recently extended that deadline to January 31, 2012. The NLRB explained its reasoning for the extension as follows: “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.” The Board also noted that the Rule was not otherwise amended and that no future changes are contemplated.

Therefore, unless one of the legal challenges filed by several national trade associations is successful in enjoining the Board from enforcing this Rule, employers will be required to post the 11-by-17-inch poster in a conspicuous location seen by all employees in the workplace by the new January 31, 2012, deadline.

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This post was written by Joel S. Barras and John A. DiNome.

Recently and just prior to the expiration of National Labor Relations Board Chairman Wilma Liebman’s term, the Board issued two decisions that reverse the rights of employees to challenge the majority status of their unions following a voluntary recognition of the union by the employer or a sale or merger involving their employer. These decisions represent yet another example of the Board’s ideological shift towards creating a more union-friendly legal environment under President Obama’s administration. 

In Lamons Gasket Co., 357 NLRB No. 72 (August 26, 2011) the Board reversed its 2007 decision in Dana Corp.  Under Dana Corp., 351 NLRB 434 (2007), the Board required employers who voluntarily recognized unions to post a notice to their employees for 45 days informing them of the voluntary recognition. The notice had to contain employee rights and options regarding that voluntary recognition such as challenging that recognition. During that 45-day period, for instance, employees could file a decertification petition to reverse the employer’s voluntary recognition and vote to expressly reject union representation. Alternatively, another union could file a petition seeking to represent the same employees.

As a result of the Board’s decision in Lamons Gasket, however, neither the employees nor a rival union may challenge the recognized union’s status until a “reasonable period of time” after the voluntary recognition. This reasonable period of time ranges from six months to a year, depending on the circumstances.

In UGL-UNICCO Service Company, 357 NLRB No. 76 (August 26, 2011), the Board overruled another of its prior decisions, MV Transportation, 337 NLRB 770 (2002). Under MV Transportation, after a sale or merger of a unionized company, the bargaining unit employees or a rival union had the option to immediately challenge the union’s representative status in a Board-conducted secret ballot election. As a result of UGL-UNICCO, however, the incumbent union’s status as the employees’ bargaining representative is only subject to challenge after a “reasonable period of time” following the sale or merger. If the employer agrees to follow the existing collective bargaining agreement, this period is six months. If. Instead, the employer exercises its right to set new initial terms and conditions of employment, the bar to challenging the union’s status can be extended to a year.

Employers need to consider the impact of these cases when contemplating mergers or acquisitions and in deciding whether to adopt an existing collective bargaining agreement or unilaterally set initial terms and conditions of employment. 

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This post was written by Eugene K. Connors, William Bevan III, and Joel S. Barras.

The National Labor Relations Board has adopted a Rule that, effective November 14, 2011, requires all employers covered by the National Labor Relations Act (“Act”) to post a notice notifying employees of their rights under the Act. This requirement will apply to some six million private-sector employers, but not agricultural, railroad, airline and very small employers. The Rule is to inform employees -- both unionized and non-unionized -- of their rights under the Act, similar to posting requirements under the FLSA, FMLA, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. 

The Notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees on how to contact the NLRB with questions or complaints.

The Rule requires employers to post an 11-by-17-inch poster in a conspicuous location seen by all employees in the workplace, such as where notices concerning personnel rules or policies are customarily posted. Employers will be able to download the notice from the Board’s website (www.nlrb.gov) 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.

Beyond physical posting, the Rule requires every covered employer to post the Notice on an Internet or Intranet site, to the extent that personnel and policies are customarily posted electronically. There is no requirement, however, to distribute the posting by email or other electronic means, as originally proposed by the NLRB. Further, if at least 20 percent of an employer’s workforce is not proficient in English, the Notice must be posted in English and the other language(s) spoken by the employees.

Finally, the Rule goes beyond a simple notice-posting requirement to specify penalties for noncompliance. Included among the penalties are:  (1) a finding of an unfair labor practice, accompanied by a cease and desist order; (2) tolling of the six-month statute of limitations under the Act for filing unfair labor practice charges, unless the employee filing the charge has “actual or constructive notice that the conduct in question is unlawful;” and (3) treating a willful refusal to post the notice as evidence of an unlawful motive in other unfair labor practice cases where motive is an issue. 

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This post was written by  Roy D. Prather, III, Joel S. Barras and Eugene K. Connors.

In yet another instance illustrating the National Labor Relations Board’s (“NLRB’s”) intent to prosecute violations of the National Labor Relations Act (“NLRA”) related to employee activity on social media sites, the NLRB’s Buffalo, NY regional office has issued a complaint against Hispanics United of Buffalo Inc. (HUB), a New York nonprofit agency. The complaint alleges that the employer fired five employees because they complained about working conditions on Facebook in violation of NLRA sections 8(a)(3) and 8(a)(1). Those provisions prohibit employers from taking or threatening adverse action against employees for engaging in so-called “concerted” activities protected by the NLRA. Firing or threatening employees with adverse action for voicing complaints or concerns over working conditions has been illegal for decades. But the NLRB has logically extended its reach to include email exchanges and, more recently, discussions and comments made using social media such as Facebook and Twitter.

According to the complaint, a HUB employee on Facebook named a co-worker who claimed that HUB employees failed to adequately assist its clients. This prompted Facebook rejoinders from other HUB employees who, in defending their job performances, criticized HUB’s working conditions, including workloads and staffing issues. HUB discharged five employee participants in this online forum on the basis that their comments illegally harassed the co-worker who made the “inadequacy” claim.

As noted, the NLRB asserts that the Facebook discussions were concerted activities under NLRA section 7 because they involved terms and conditions of employment such as job performances, workloads, and staffing levels. 

A hearing before an NLRB Administrative Law Judge is set for June 22, 2011, in Buffalo. We will track and report on this case as it progresses.

This matter is on the heels of two recent attempts by the NLRB to regulate employers’ reactions to employee use of social media to discuss workplace issues. The first concerned an NLRB complaint against American Medical Response, Inc., a Connecticut ambulance provider, for discharging an employee over her criticism of her supervisor on Facebook. In the second, the NLRB threatened a complaint against Thomson Reuters Corp. for its restrictive social media policy and for disciplining a reporter for a message she posted on Twitter. Both cases settled.

The lessons to be learned from the NLRB’s new and increased attention to social media activities are simple but crucially important. First, be ever-vigilant on what the NLRA permits and what it condemns. Second, “where” discussions and other protected actions occur makes no difference. Protected activities are protected if they are face-to-face, over the telephone, in a letter, in a fax, on TV, on the radio, in a news story, and “spoken” electronically, in emails or on social media sites. Put simply, the NLRA applies fully to the “cloud.” For this reason, take a thorough look at every policy to make sure that it recognizes and complies with the NLRA by balancing employer needs against the NLRA’s protections.

Feel free to discuss any concern with one of the authors or with another Reed Smith attorney of your choosing.

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The National Labor Relations Board (“NLRB” or “Board”) recently issued a complaint against a Connecticut ambulance service accusing it of illegally discharging an employee for posting negative comments about her supervisor on her Facebook page. The NLRB also challenged the employer’s blogging and Internet policy, asserting that it chills employee rights under the National Labor Relations Act (the “Act”). The Act protects the right of all workers, both union and non-union, to communicate with one another about wages, hours, and other terms and conditions of employment, and prohibits employers from taking action against employees for having engaged in such “protected concerted activity.”

According to the NLRB’s complaint, Dawnmarie Souza was asked to prepare an incident report after the company received a customer complaint about her. A supervisor denied Ms. Souza’s request for assistance from her union, Teamsters Local 443, in completing the report. The Board also alleges that the supervisor threatened Ms. Souza with discipline because of her request for union representation.

Later that day, on her own time and using her own computer, Ms. Souza posted negative comments about the supervisor on her Facebook page. In support of Ms. Souza, her coworkers also posted negative comments about the supervisor on the same page. The company discharged Ms. Souza just three weeks later, and the NLRB claims it did so because she violated the company’s Internet policy. The employer, however, contends that it discharged Ms. Souza based on several serious complaints about her behavior. 

Following an investigation, the NLRB’s Hartford office determined that the Facebook postings were “protected concerted activity.” In addition, the Board viewed the company’s Internet and blogging policy, which barred employees from making disparaging remarks when discussing the company or a supervisor and which prohibited employees from depicting the company online without company approval, as a violation of the Act. An NLRB administrative law judge is set to hear the case in January.

Until a decision is rendered, all facts relating to this case, including the company’s Internet and blogging policy, will not be publicly available. The Board’s position, however, is that the policy chilled employees’ rights under the Act by barring employees from making any disparaging remarks or depicting the company in any way on the Internet without prior permission. Such policies are bound to be viewed as overly restrictive by the Board, especially because employees would generally be protected if they engaged in the same sort of behavior on their own time in any public forum.

This is not the first time that the Board has closely examined whether a social media policy infringes upon employee rights. On December 4, 2009, the NLRB’s Office of General Counsel issued an Advice Memorandum analyzing a social media policy adopted by Sears Holdings, which prohibited employees from using social media to disparage “a company’s or competitor’s products, services, executive leadership, employees, strategy and business prospects,” to discuss confidential and proprietary information, or to make explicit sexual references. The Office of General Counsel found this policy was permissible because a reasonable employee, viewing the policy as a whole, would not believe it limited conduct protected by the Act. 

Every employer, whether it has a union or not, is now on notice that the NLRB will focus on examining employers’ efforts to limit employees’ use of social media, challenging those it views as likely to chill employee rights to act together to complain about or address work issues. Employers should thus analyze their social media policies to ensure that employee restrictions are not so broad as to interfere with or chill such employee rights. While an employer can restrict disclosure of confidential and proprietary information and require compliance with its harassment policy, it cannot prohibit employees from discussing the employer with other employees on social media sites, at least not where such discussion could be “concerted activity” protected by the Act.

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This post was written by Daniel J. Moore and James A. Burns, Jr.

 On June 17, 2010, the U.S. Supreme Court held that the National Labor Relations Board (“NLRB” or “Board”) lacked the authority to issue any decisions during a 27-month period when it had only two members. New Process Steel, L.P. v. NLRB, No. 08-1457. The Court’s ruling effectively invalidates nearly 600 decisions issued by the two-member Board, leaving unclear how those cases will be resolved by a Board that is now back to a full five members, three of whom are generally expected to favor unions. A full copy of the Court’s decision is available here.

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This post was written by Bill Bevan, John DiNome and Joel Barras.

This past weekend, with the Easter Congressional recess just under way, President Barack Obama wasted no time in announcing the recess appointments of his two proposed Democratic nominees to serve as members on the National Labor Relations Board (NLRB). One appointment was Buffalo union-side attorney Mark Pearce; the other was the highly controversial Craig Becker from Washington, D.C., who is counsel to the AFL-CIO and the Service Employees International Union. President Obama decided not to install his Republican nominee, Brian Hayes, as a recess appointment to the NLRB. As a result of these recess appointments, Democrats now occupy three of the four filled seats on the NLRB, with Mr. Hayes awaiting Senate confirmation to occupy the remaining seat. Mr. Becker’s and Mr. Pearce’s appointments will last until the end of the next Congressional session, which coincides with the end of 2011. Notably, the terms of Republican Board Member Peter Schaumber and Republican NLRB General Counsel Ronald Meisburg expire in August 2010. The president, of course, could simply take his time filling Mr. Schaumber’s seat, leaving the Board at three Democratic Members, and let the general counsel’s side of the Agency be run by a career acting general counsel until his administration sees what the makeup of Congress looks like after the 2010 elections. Given Mr. Becker’s published works, which are explicitly pro-union, and his stated belief that the Act can be structurally reformed by Board decision-making and rule-making, it is expected that employers’ rights, particularly during union organizing campaigns, will be greatly diminished through future NLRB decisions. Indeed, Mr. Becker’s stated views in the past are that employers should essentially have no involvement in union organizing elections. As always, we will continue to monitor the NLRB docket and decisions to update you on any legal developments.

Also included in the president's announcement were two appointments to the Equal Employment Opportunity Commission (EEOC), Georgetown Law Professor Chai Feldblum and the former Assistant Secretary of Labor for Employment Standards under President George W. Bush, Victoria Lipnic.

To learn more about the appointments, please read the White House's press release.

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In perhaps no U.S. presidential election in recent memory has the outcome been more important to a change in our basic labor law, the National Labor Relations Act (“NLRA” or “Act”). Predictions are that if Sen. Obama is elected President and the Democrats take control of Congress, the crown jewel in labor’s legislative agenda, the Employee Free Choice Act, which passed the House last year but fell short in the Senate,¹ could become the law of the land.²

The Employee Free Choice Act (“EFCA”), as passed by the U.S. House of Representatives, has three major features that make sweeping changes in the current provisions of the NLRA. First, the Act will permit unions to obtain certification through a mandatory card check conducted by Regional Offices of the National Labor Relations Board (“NLRB” or “Board”). Second, EFCA will impose first contracts through interest arbitration where the parties are unable to agree on the terms of such agreements. Third, EFCA will amend certain provisions of the Act to permit NLRB Regional Directors, acting at their own discretion, to seek injunctive relief against employers for alleged violations arising out of union organizing campaigns. The Board will be required to assess both back pay and double liquidated damages on employers who discharge employees during an organizing campaign. In addition, the Board will have authority to assess a civil penalty of up to $20,000 per violation of Section 8(a)(1) or (3) of the Act that substantially interferes with the union organizational process during the period of organizing and, after certification or recognition of a union, until a first contract is entered into. Each of these changes and its significance is examined below.

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