Labor Relations Counsel - Legal Insight into Labor Relations Developments

On 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.

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.

As 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.

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.

By Denise Barton Ward

One 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.

Continue Reading

The 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.

Continue Reading