Labor Relations Counsel - Legal Insight into Labor Relations Developments

By Jeffrey Place

The National Labor Relations Board (“the Board”) recently issued its decision in Caterpillar, Inc., 359 NLRB No. 97, in which a union charged that the employer had violated the National Labor Relations Act (“the Act”) by refusing to grant the union access to the employer’s facility to conduct a health and safety inspection in the wake of a fatal accident. The company objected to the union’s request on several grounds. First, the company noted that it had conducted an accident re-creation, which it allowed the union’s steward to attend, and had also provided a video recording of the re-creation to the union’s safety specialist. Further, the company provided copies of post-accident photographs and the local police department’s investigation file to the union. Finally, the company pointed out that the union also represented one of the company’s primary competitors, and stated that the company wanted to maintain the confidentiality of its manufacturing procedures. 

The union asserted that photographs and video recordings could not take the place of an on-site inspection, because only being physically present at the location of the accident would give the safety specialist a full understanding of the lines of sight, angles, and physical dimensions of the work area. Further, the union noted that the police department had been unable to determine the precise cause of the accident during its investigation. The union argued that it needed access to the employer’s facility in order conduct an independent investigation, which would allow the union to then engage in informed dialogue with the company about methods for preventing future accidents.

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By Maury Baskin and Gregory Brown

The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress.

The Board’s challenged rule would have forced six million employers throughout the country to post the Board’s mandatory notice of employee rights to organize unions (and related topics), under threat of an unfair labor practice finding by the agency. Moreover, failure to post the required notice would have permitted the Board to extend the usual six-month statute of limitations period in unfair labor practice cases. The rule also permitted the Board to consider an employer’s refusal to post the notice as evidence of unlawful motive in unfair labor practice cases.

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By Michael Lotito and Ilyse Schuman

On Friday the House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) by a vote of 219-209. The measure was approved largely along party lines, although 10 Republican members did vote against it. This bill would limit National Labor Relations Board activities until at least three members are confirmed by the Senate, President Obama’s recess appointees’ terms expire, or until the U.S. Supreme Court weighs in on the legitimacy of the recess appointments. Specifically, this bill would prevent the Board from implementing, administering, or enforcing any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012 – the date the President sat three members via recess appointment – that requires a quorum. The measure would allow NLRB regional offices to continue to accept and process unfair labor practice charges. In the event additional Board members are validly confirmed, all of the actions carried out by the prior Board staffed with the recess appointees would require review. Continue reading this entry at Littler's DC Employment Law Update.

A new Report issued by Acting NLRB General Counsel (GC) Lafe Solomon responds to a number of practice and procedural questions related to Board operations posed by labor attorneys during a recent American Bar Association Midwinter Meeting. The report answers questions related to unfair labor practice charges, Board rulemaking, employer social media policies, and representation election procedures, among other topics. Highlights of the report are as follows:

Social Media and Handbook/Policy Cases

According to Solomon, there are no immediate plans for the Board to issue another report governing social media, at-will employment, confidentiality, or other employer rules/policies. The Board also does not have any plans to develop regulations regarding social media policies.

With respect to the class action arbitration waiver invalidation issue presented in D.R. Horton, Inc., the Report notes that there are 29 pending cases that raise D.R. Horton issues.

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By Denise Barton Ward 

In NLRB v. Special Touch, 2013 U.S. App. LEXIS 4058 (2d Cir. Feb. 27, 2013), the U.S Court of Appeals for the Second Circuit denied a National Labor Relations Board petition for enforcement in a well-reasoned case that employers may view as a sign that someone is listening to their pleas for common sense in labor decisions. The facts are relatively straight-forward.  Special Touch subcontracts with nursing and health-related services to provide home health aides. The patient population has either been ordered by a physician to receive home care, has an illness that prevents normal functioning and daily living activities, is homebound, or is receiving in-home health services. The SEIU provided a Section 8(g) notice to the employer of its intent to strike, as is its right. The employer, according to its rights, contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the time period provided by the union for the strike. Approximately 75 aides stated their intent to be absent. When the strike began, however, an additional 48 aides who had not previously stated they would be absent failed to appear for work. At the conclusion of the strike, the 75 who had informed the employer of their absence were reinstated; the other 48 were terminated.

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