House and Senate Introduce Resolutions Condemning NLRB Election Rule

Capitol Building.jpgOn February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures. Rep. Phil Gingrey (R-GA) introduced the resolution in the House with 64 co-sponsors. Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced a companion resolution with identical language in the Senate with 43 co-sponsors. Continue reading this entry at Littler's Washington DC Employment Law Update.

NLRB Nominations Sent to the Senate

Senate in session.jpgOn February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three most recent Board additions were seated via recess appointment last month. The President’s decision to exercise his recess appointment power while the Senate was still holding brief pro forma sessions has generated a substantial amount of controversy, as expressed during a congressional hearing held last week. The legality of this move is currently being challenged judicially and through legislation. While Obama announced his intent to nominate Flynn in January 2011, he did not name Block and Griffin as his choices until December 14, 2011.

Given the ongoing disagreement about the validity of the recess appointments, the Senate is not likely to confirm the appointees. If the Senate were to approve their nominations, however, Block’s term would expire on December 16, 2014; Flynn’s term would last until August 27, 2015; and Griffin’s term would end on August 27, 2016.

Littler Shareholder Stefan Marculewicz Testifies at Congressional Hearing Addressing NLRB Recess Appointments

Microphone at meeting2.JPGLittler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions. Continue reading this entry at Littler's Washington DC Employment Law Update.

House Approves Measure that Places Restrictions on NMB Representation Elections

Update: On February 6, 2012, the Senate approved the conference report by a vote of 75-20. On February 14, 2012, President Obama signed this bill into law.

stamp3.JPGAs expected, the House of Representatives approved the conference report to the Federal Aviation Administration (FAA) funding bill that includes significant restrictions over air and railway union organizing. The House voted 248-169 in favor of the report reconciling the House and Senate versions of the FAA Modernization and Reform Act of 2012 (H.R. 658), which reauthorizes the agency’s programs and provides its funding for a four-year period. Continue reading this entry at Littler's Washington DC Employment Law Update.

NLRB Chairman Says He Will Push For Additional Election Rule Changes

MarkPearce.jpgIn keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures. Among other changes, the rule will:

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Validity of Many Commonly Used Social Media Policies Challenged in NLRB Report

In its most recent effort to draw lines on the self-described “hot topic” of the “lawfulness of employers’ social media policies and rules,” the National Labor Relations Board’s (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2012, in the form of a report, issued to senior regional staff, on 14 cases which, according to the General Counsel, “present emerging issues in the context of social media.” This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues. To learn more about the report and its potential implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.

Healthcare Employer's Button & Off-Duty Access Policies Violated NLRA

In Saint John's Health Center, 357 NLRB No. 170 (Dec. 30, 2011), one of he NLRB's final decisions before then-Member Craig Becker's recess appointment expired, the Board ruled by a margin of two to one that it was unlawful for Saint John's Health Center to prohibit registered nurses from wearing union ribbons in immediate patient care areas during a union organizing drive while at the same time allowing nurses to wear a ribbon the hospital endorsed stating, "Saint John's mission is patient safe care." In the same decision, the Board considered to what extent a healthcare provider may restrict employees from returning to the workplace when they are not on duty and not there to visit a patient. The Board ordered the hospital to rescind its "off-duty employee access policy," which the Board concluded effectively told employees that, "you may not enter the premises after your shift except when we say you can." To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, Healthcare Employers May Not Selectively Prohibit Union Insignia in Patient Care Areas, by Eric Stevens and Jennifer Mora.

The Language of Lockout

By Denise Barton Ward

istock_locked_gatel[1].jpgOne tenet of NLRB case law is that an employer’s use of permanent replacements renders a lockout in support of its bargaining position unlawful. In Harborlite Corporation, 357 NLRB No. 151 (2011), the Administrative Law Judge relied on this principle to find a lockout in support of an employer’s bargaining position unlawful due to the employer’s statements that it would permanently replace employees. In a somewhat surprising result, the Board agreed the statements were unlawful, but concluded that the lockout itself was lawful. The Board’s separation of statements and conduct, as well as its implicit approval of the employer’s attempt to cure an errant statement, amounts to a welcome Board decision for employers.

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"Effectively Recommend" Dissected

By Denise Barton Ward

checklist2.JPGIn a line of decisions known as the Kentucky River cases, the Board took aim at re-defining “assign,” “responsibly to direct,” and “independent judgment” in Section 2(11) of the NLRA  as it relates to supervisory status. In DirecTV U.S. DirecTV Holdings LLC, 357 NLRB No. 149 (2011), the Board took the opportunity to dissect the meaning of “effectively recommend” as it relates to supervisory status. In light of the Board’s conclusions, employers should consider how much post-supervisor review is built into disciplinary processes, especially with respect to statutory supervisor status issues under the NLRA.

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NLRB General Counsel Policy Change Would Limit Arbitration Deferral

Thumbnail image for NLRB seal.gifThe National Labor Relations Board’s Office of the General Counsel has once again directed changes to the Board’s arbitration deferral policy. In a memorandum (doc) issued on January 20, 2012, Acting General Counsel (GC) Lafe Solomon seeks to prevent the routine deferral of Section 8(a)(1) and 8(a)(3) cases to arbitration if resolution of these unfair labor practice (ULP) charges by arbitration cannot be achieved within one year. The GC would apply this change in policy to cases that have already been deferred to arbitration – but have been pending for more than one year – as well as new cases in which there are indications that resolution via arbitration would likely take considerable time. The new policy would apply only in situations in which grievance-arbitration procedures are already explicitly laid out in a collective bargaining agreement. The new deferral policy would also apply – albeit under very limited circumstances – to cases involving allegations of contractual violations under Section 8(a)(5).

Under the long-standing arbitration deferral policy, as established by the decision Collyer Insulated Wire, the Board defers making a final determination on certain ULP charges when a grievance involving the same issue(s) can be processed under the grievance/arbitration provisions of the parties’ collective bargaining agreement. The purpose of doing so, according to the Board, is to encourage collectively-bargained dispute resolution. In January of last year, the GC first sought to amend Collyer deferral by instructing NLRB regional offices not to “defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator.” According to a Board press release, the new directive builds upon these earlier changes.

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