Labor Relations Counsel - Publications

NLRB General Counsel Report Addresses Several Questions Posed at ABA Meeting

Ilyse Schuman — Fri, 29 Mar 2013 06:31:36 -0800

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.

]]>Section 10(j) Injunctions

Among other 10(j) injunction statistics of note, twelve 10(j) petitions were challenged on the grounds that the Board’s authorization to issue such injunctions was invalid for lack of a proper quorum. As the U.S. Court of Appeals for the D.C. Circuit recently held in Noel Canning v. NLRB, the three Board recess appointments were unconstitutional.

Representation Elections

The Report responded to a number of questions regarding electronic voting, mail ballots, off-site elections, and the revised representation election rules that have been put on hold. Of note, the Report states that there are currently no additional developments to encourage electronic voting. The Report discusses also the stalled expedited election rule and the status of the Board’s appeal of a federal court finding that the rule was invalid because the Board lacked a quorum when it was issued in December 2011. The document explains that as a result of the Noel Canning decision, the D.C. Circuit has decided to hold all matters in which former Member Craig Becker participated in abeyance. The Report claims that in the interim, “the Board is continuing to work on the aspects of the proposed changes to representation-case procedures that were not disposed of in the December 2011 final rule. It is anticipated that any further amendments will be promulgated in the form of a final rule, but no final decision has been made at this time.”

Bargaining Unit Determinations

The Report highlights a number of cases that have applied the standards set forth in Specialty Healthcare, in which the Board reversed past precedent and adopted a new standard for determining appropriate bargaining units.

Deferral

Several participants asked questions regarding the implementation of the Board’s deferral policy set forth in Memorandum GC 11-05 and Memorandum GC 12-01. According to Solomon, there are 1,682 cases currently in deferral status. Solomon discussed several issues related to the deferral process, how it is applied to grievance settlements, and the impact of the Board’s deferral policy on post-arbitration deferral cases.

Investigation Subpoenas

The GC’s Report provides a table showing the use of investigative subpoenas issued during FY 2012. Of the 666 cases in which investigation subpoenas were issued, merit determinations were made in roughly half (317) of them.

Default Language

In GC Memorandum 11-04 (issued January 12, 2011), the Acting GC provided guidance on the default language that should be incorporated in informal settlement agreements. The Report discusses a number of cases in which administrative law judges have accepted settlement absent the default language over the GC’s objections; circumstances when the default language is modified; and cases in which an NLRB region claimed that the default language was breached.

The Report discusses a number of administrative matters as well, including litigation statistics.

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House Committee Report Contains Sharp Criticism of NLRB

Ilyse Schuman — Mon, 17 Dec 2012 17:02:39 -0800

Last week the House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board (NLRB or “Board”) that the Committee contends are indicative of the agency’s pro-union bias. Rep. Darrell Issa (R-CA) chairs the Committee. The report – President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate (pdf) – claims that these legislative, regulatory, and internal missteps “compromise the perceived fairness of the NLRB that Congress deemed necessary for its successful operation,” and have created a “rogue agency plagued by systemic problems.” The 33-page report touched on a number of perceived faults with the Board’s operation and decision-making process, including the following:

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Litigation overreach. According to the report, NLRB Acting General Counsel Lafe Solomon and the Board “are using their adjudicatory functions to wreak havoc on job creators.” The report criticized in particular the Board’s controversial decision in Specialty Healthcare, in which the Board reversed past precedent and adopted a new standard for determining appropriate bargaining units. The report states that this new standard – which makes it easier for unions to organize smaller “micro” bargaining units – “threatens to upset the delicate balance between the interests of employers and unions as practiced for 20 years.”

Regulatory overreach. The Report characterized the Board’s notice posting and expedited election rules as regulatory overreach. The implementation of the Board’s controversial notice posting rule and expedited election procedures rule have both been declared invalid by federal courts. The U.S. Court of Appeals for the D.C. Circuit enjoined the enforcement of the notice posting rule after a South Carolina federal court found that the Board lacked the authority to promulgate the rule in the first instance. The U.S. District Court for the District of Columbia rule declared the expedited election rule unlawful because the Board lacked a quorum when it issued the rule in December 2011. The agency has appealed both of these decisions.

Constitutionality of Recess Appointments. On January 4, 2012, President Obama announced his intention to seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Flynn later resigned from the Board following allegations cited in an NLRB Inspector General report that he committed ethics violations while employed by the Board, but before he assumed his Board member position. Several lawsuits have been filed as a result of the move to seat the new members in this fashion, as it has been argued that the Senate was not technically in recess when the appointments were made. The report points out that as a practical matter, if the recess appointments are ultimately deemed unconstitutional – a determination that has already been made by at least one federal court and may ultimately be decided by the Supreme Court – many of the decisions and actions taken by the Board could be overturned. The Supreme Court in 2010 held in New Process Steel that the agency must operate with at least three sitting members. As a result of that decision, hundreds of Board decisions were invalidated. The report explains that the same fate could befall the decisions made by the recess appointees, creating great uncertainty for employers that rely on these decisions.

Internal misconduct. The report discusses several instances in which it alleges that Board officials broke their own internal rules. Notably, the report contends that rules governing ex parte communications and the separation principle between the Board and the General Counsel may have been violated, and outlines other allegations of ethical and criminal misconduct.

More information on the Committee’s report can be found here.

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NLRB's Acting General Counsel Issues Third Guidance Document on Social Media and Approves One Policy

Labor Management Relations Practice Group — Mon, 11 Jun 2012 11:53:01 -0800

On May 30, 2012, the National Labor Relations Board's Acting General Counsel issued his third guidance document on social media since August 2011. In that report, he took the opportunity to approve one employer's social media policy, a move that finally provides employers clear guidance in connection with the regulation of this rapidly evolving area of the law. The Acting GC's guidance, which was published in the form of an Operations Management Memorandum, was accompanied by an Advice Memorandum in Walmart, Case No. 11-CA-067171. It is in this case that the agency articulated its reasoning and found, for the first time, a social media policy that was acceptable in its entirety. To learn more about the guidance and its potential implications for employers, please continue reading Littler's ASAP, Three's a Charm: NLRB’s Acting General Counsel Issues Third Guidance Document on Social Media and Approves One Policy, by Philip Gordon.

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New Littler Blog: Employee Benefits Counsel

Labor Management Relations Practice Group — Wed, 30 Nov 2011 13:57:09 -0800

We are pleased to announce a new addition to Littler’s blogroll:

Employee Benefits Counsel

Brought to you by Littler's Employee Benefits, ERISA and Benefit Plan Litigation, and Executive Compensation practice groups, this blog covers:

Legislative and regulatory developments in the employee benefits arena, including the topics of health care reform; plan design and administration; employee benefits litigation; and
Executive compensation, providing insight and analysis on legal developments that warrant discussion.

During this time of significant governmental change and shifts in the strategy and style of benefits litigation, Littler's depth of experience in employee benefits, litigation, and executive compensation matters gives our attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments. To subscribe to receive email alerts of new blog posts, please enter your email address in the Subscribe box on the right side of the Employee Benefits Counsel blog homepage.

NLRB Extends Employee Rights Notice Posting Rule Implementation Date

Stefan Marculewicz — Wed, 05 Oct 2011 12:24:59 -0800

Employers will now have until January 31, 2012 to comply with the National Labor Relations Board’s notice posting rule: Notification of Employee Rights under the National Labor Relations Act. This rule, which was slated to take effect as of November 14, 2011, mandates that all private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. Last month, the NLRB made available a copy of the required poster as well as a list of frequently asked questions about the rule.

According to a press release announcing the extension:

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.

The rule itself is facing both legislative and legal challenges. Notably, the National Association of Manufacturers (NAM) has filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule. A hearing on motions for summary judgment is set for December 19, 2011. The court is expected to issue a decision on these motions before the rule’s new effective date.

For more information on the NLRB’s notice posting requirement, see Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles. In addition, Littler invites you to a complimentary webinar on the new rule and its workplace implications.

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NLRB Defines New Standard for Determining Appropriate Bargaining Units

Labor Management Relations Practice Group — Thu, 15 Sep 2011 09:04:40 -0800

Marking the end of Chairman Wilma Liebman's term, the National Labor Relations Board issued three significant decisions at the end of August that overturn long-standing Board precedent. In what may be the most significant of the three, a decision involving the healthcare industry, the Board paved the way for the proliferation of bargaining units by overruling its 1991 decision in Park Manor Care Center, 305 NLRB 872 (1991), and determining that certified nursing assistants ("CNAs") comprise an appropriate stand-alone bargaining unit. Although it involved a nursing home, the Board's decision is not limited to the healthcare industry and fundamentally changes the standard for determining appropriate bargaining units applicable to all employers. Continue reading this article here.

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NLRB Issues Final Employee Rights Notice Posting Rule

Labor Management Relations Practice Group — Wed, 31 Aug 2011 05:41:16 -0800

On August 25, 2011, the National Labor Relations Board issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The rule was published in the Federal Register on August 30, 2011 and will be effective 75 days later, on November 14, 2011. For more information on this rule and employer requirements, continue reading Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles.

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OLMS to Contact Employers and Their Attorneys Regarding Persuader Agreement Reporting Obligations

Todd M. Nierman — Fri, 18 Feb 2011 14:04:47 -0800

The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”

Section 203 requires an employer to report on Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees regarding their collective bargaining rights or to gather certain information about employee activities or a labor organization in connection with a labor dispute. The labor relations consultant must report on Form LM-20 information about such an agreement or arrangement. Currently, the LMRDA provides for certain “advice” exemptions from these reporting requirements. As explained by the OLMS, these exemptions “provide, in part, that no report is required covering the services of a consultant or other person by reason of his or her giving or agreeing to give advice to such employer, or representing or agreeing to represent the employer in administrative, arbitral, or court proceedings or in collective bargaining.” More information on the various disclosure forms can be found here.

During a recent web chat to discuss the OLMS’s regulatory agenda, OLMS Director John Lund said that the agency intends to publish a proposed rule by June of this year that would narrow the scope of the advice exemption and expand persuader reporting under Section 203. If the new regulations are enacted in the manner expected, they could significantly impair employer speech rights and the right to legal counsel during union organizing campaigns.

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Board Decision Approves Stationary Bannering as Lawful Tactic in Secondary Boycotts

Jack Lambremont — Fri, 03 Sep 2010 14:45:19 -0800

The National Labor Relations Board on August 27, 2010, issued its long-awaited decision in a trio of cases involving the use of stationary banners by unions to advertise secondary boycott activity to the public. In a 3-2 decision split along partisan lines, the Board majority (Chairman Liebman and Members Becker and Pearce) concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act ( the “Act”). The decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (2010) has the practical effect of broadening the arsenal of weapons organized labor can bring to bear to force a primary employer in a labor dispute to yield to union demands. As a result, the decision may signal an increase in the frequency of secondary boycott activity and the embroiling of neutral employers in labor disputes not of their own making.

]]>The underlying unfair labor practice charges all arose in 2003, when the Carpenters Union was engaged in a campaign aimed at a number of Arizona construction employers that, according to the union, were not providing pay and benefits to their employees in accord with area standards. In each instance, the union set up a large stationary banner at a location operated by a secondary employer that had a business relationship with the targeted primary employer. In only one instance was the primary employer present and performing work at the location where the union displayed its banner. In two cases, the banner contained the message “SHAME ON [SECONDARY EMPLOYER]”, and in the third, the banner read “DON’T EAT [SECONDARY EMPLOYER] SUSHI.” In all instances, the central message was flanked on both sides by the words “Labor Dispute” in smaller letters. Between two and four union representatives held the stationary banner on a sidewalk or right-of-way in a manner that did not block the flow of traffic. While holding the banner, the union representatives also offered handbills to passers-by, explaining that the labor dispute was with the primary employer and that the union believed that the secondary employers’ business relationships with the primary employers contributed to undermining area standards. The union representatives did not chant, yell, march, or engage in similar activities.

The Board ruled that the conduct at issue was noncoercive and did not violate the Act. In crafting its ruling, the Board majority emphasized that it is constrained “to seek to avoid construing the Act in a manner that would create a serious constitutional question,” and added that government “regulation of nonviolent speech – such as the display of stationary banners – implicates the core protections of the First Amendment.” In light of those constraints, the majority framed the issue in the following terms:

The crucial question here, therefore, is whether the display of a stationary banner must be held to violate Section 8(b)(4)(ii)(B) or, instead, “whether there is another interpretation, not raising these serious constitutional concerns, that may be fairly ascribed to” the statutory provision.

(Emphasis in original.) (Citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 577 (1988).) The majority concluded that nothing in the legislative history or the language of the Act itself requires the Board to find the display of a banner aimed at a neutral employer to constitute a violation of the Act. As such, the majority concluded that bannering is, like handbilling, noncoercive conduct that falls outside of the Act’s proscription against certain types of secondary boycott activity.

Dissenting, Members Schaumber and Hayes took issue with the majority’s reliance on “a strained definition of statutory language, and selective and ambiguous excerpts from the legislative history” to reach its conclusion. They further criticized the majority for failing to constrain their decision to the facts of the case presented, accusing the majority of “capitaliz[ing] on the opportunity to narrowly circumscribe the Board’s historically expansive definition of ‘picketing’,” while simultaneously increasing the burden on employers seeking to challenge secondary activity under Section 8(b)(4)(ii)(B). According to the dissent, the majority’s decision “invites a dramatic increase in secondary boycott activity.”

The decision signals a break in the log-jam of bannering cases that have been sitting before the Board for a number of years now. In a press release (pdf) issued September 2, the Board indicates that there are at least ten additional bannering cases currently pending before the Board.

For more information on this decision, see Littler's ASAP: A Banner Day for Union Boycotts by Russell McEwan.

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