Posts belonging to Category National Labor Relations Board

A second slam against President Obama’s recess appointments to the National Labor Relations Board has pundits talking not just about the appointments, but about the overall impact on the notion of recess appointments altogether.

The decision Thursday by the U.S. Court of Appeals for the Third Circuit in NLRB v. New Vista Nursing and Rehabilitation is the second decision by a circuit court to hold that intracession recess appointments (those made during a recess within a session) violate the Recess Appointments Clause of the U.S. Constitution.

As this alert from Ballard Spahr points out, in the earlier ruling in Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit concluded Obama acted unconstitutionally when he made three recess appointments to the NLRB. As Ballard Spahr noted previously, ”if upheld by the Supreme Court — which is considering the NLRB’s petition for certiorari [or the high court's review] — Noel v. Canning will invalidate the hundreds of board decisions in which the three appointees participated,” its latest alert states.

One issue at stake in this most recent New Vista ruling is the legitimacy (make that the illegitimacy) of the appointment of former NLRB board member Craig Becker, who was appointed during an intrasession recess of the Senate and was part of the panel that ruled against New Vista. At the Third Circuit, says the Ballard Spahr alert, “essentially adopting the reasoning of Noel Canning, a divided panel concluded that the words ‘the Recess’ in the RAC refers only to an intercession [between-sessions] recess of Congress … .”

Michael Lotito, employment attorney and co-chair of San Francisco-based Littler’s Workplace Policy Institute, cites what you might call the crux of the ruling in this comment on a LinkedIn group site: “Footnote 22 beginning on page 61 [of the New Vista ruling] sums it  up: The president could not do what he did. The recess appointments are toast.” (Look it up in my link above.)

For additional background on all this, including case synposes, here is Morgan Lewis’ take, as posted on the National Law Review website, and here is my latest post on this blog, with links to past posts explaining the controversy around Noel Canning. Also, though the NLRB has not issued a statement about this latest ruling on its website, it does provide this link to a video and opening statements “for the May 16, 2013, Senate committee hearing on pending nominations to the National Labor Relations Board.”

As for the implications of the two rulings, Morgan Lewis paints a pretty clear picture:

The Third Circuit’s decision, particularly when paired with Noel Canning, is far-reaching and critically important, particularly for employers involved in [NLRB] proceedings since March 2010. The invalidation of Becker’s appointment also affects a number of board actions during that time, including the ‘quickie’ election rules — providing for a much faster [union] election process — and the decision in D.R. Horton — invalidating class and collective-action waivers in employment-arbitration agreements. The Third Circuit and the D.C. Circuit have drawn a roadmap for challenging the validity of three years’ worth of board decisions and are now the likely forums of choice for such challenges.”

More succinctly, as this release on the Hot Air site puts it, the rulings have “the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.”

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Just in case you missed this, the U.S. Court of Appeals for the District of Columbia struck down yesterday a federal rule that would have required employers to nail posters to their bulletin boards or common-area walls informing employees of their rights to unionize.

This Associated Press account on the Newsday site calls the decision against the National Labor Relations Board in National Association of Manufacturers v. NLRB “another blow to the nation’s dwindling labor unions.”

It also specifies details of the ruling, stating that the NLRB violated employers’ free-speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice.

“The court’s ruling is the latest success for business groups that have worked to prevent the NLRB from shifting the legal landscape in favor of labor unions, despite President Barack Obama’s appointment of several labor-friendly board members,” the AP account says.

Here is my latest blog post on this poster controversy, containing links to my previous posts, which should give you a good chronological journey through this tussle.

Meanwhile, this legal alert on the Arent Fox site reminds us that Tuesday’s appeals-court decision on the poster rule comes less than four months after the same court invalidated Obama’s recess appointments of three NLRB members.

Here are three separate blog posts by me on this recess-appointments controversy — from April 2, March 20, and Feb. 19 — for your reading pleasure.

Lastly, this link from Practical Law Co. spells out the reasons behind the DC Circuit decision regarding posters. The court, it says, “held that the NLRB’s poster rule is invalid because each of the three ways in which the NLRB would enforce its poster rule was invalid. In particular, the court found that the NLRB could not lawfully:

• Make a failure to post the notice an unfair labor practice (ULP).
• Interpret a failure to post the notice as evidence of anti-union animus in NLRB proceedings.
• Toll the six-month statute of limitations indefinitely for employees to file ULP charges against an employer that fails to post the notice.”

As always, I will try to keep you posted on developments.

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I know I’ve been writing a lot about the National Labor Relations Board on this blog, but I am truly no authority. Just a curious observer, especially considering the weight the board’s decisions hold and the impact they have on the readers of our magazine.

So my latest curiosity has to do with this recent post on the HR Policy Association’s website, detailing the House Education and the Workforce Committee’s passage during the week of March 18 to 22 of a bill requiring the NLRB to cease all decision-making until the legal status of the Board’s members has been resolved.

As the post states, the “Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) was prompted by the recent decision in Noel Canning by the D.C. Circuit effectively nullifying the recess appointments of two of the three sitting Board members, thus bringing the Board below the three-Member quorum required for Board decisions.”

For reference sake, here is my latest blog post on the NLRB’s decision to seek the U.S. Supreme Court’s review of Noel Canning v. the National Labor Relations Board, along with a link to the actual decision in that case. As I note there, the NLRB has until April 25 to get its review petition to the highest court. The HRPA says in its post that the Supreme Court review probably won’t happen until “next fall at the earliest.”

Here’s how Committee Chairman John Kline (R-Minn.) sums it up in the HRPA piece:

The best way to avoid further damage is for the President to work with the Senate to confirm a full slate of qualified nominees.  In the meantime, Congress must take action to prevent a bad situation from becoming much worse.  H.R. 1120 is an appropriate congressional response that will help ensure America’s workplaces aren’t forced to confront even more uncertainty.

Meanwhile, and this is where my curiousity comes in, here is the NLRB’s summary of decisions for the week of March 25 through 29. Looks like there’s no slowing down there. And I’m not hearing or seeing any evidence that this committee’s bill passage has gotten the NLRB’s attention or raised its concern. No statements or news stories there that I can find.

Just curious. Just sayin.

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In case you haven’t heard, the sticky wicket involving those recess appointments to the National Labor Relations Board that President Obama made back in January 2012 will be going to the U.S. Supreme Court for final resolution.

No surprise really. Just official.

Here’s the NLRB’s very brief statement on the matter. It says its review petition (a.k.a.,  certiorari) must be to be on the top court’s desk by April 25.

I was alerted to this through this commentary from Tom Donohue, president and CEO of the Washington-based United States Chamber of Commerce, which appeared in the Weekly Standard and the Washington Examiner, stating that clarity could be on the way for those regulated by the NLRB.

As Donohue writes:

Finally heeding calls by the business community to address the issue soon, the NLRB announced last week that it will seek U.S. Supreme Court review of the decision. This is an important step toward resolving the tremendous confusion created by the controversial recess appointments. In the meantime, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future.”

For review’s sake, here’s my most recent blog post on the appointments and how the recent appeals-court decision in Noel Canning v. the National Labor Relations Board invalidating them came into play in a subsequent court case.

Could get dicey. Donohue’s commentary sounds like he’s up for a fight:

Our preference is always to work within the legislative and regulatory processes to protect the interests of job creators and employers. But when the administration oversteps its bounds, when it tramples the rights of businesses and individuals, when it seeks to bypass other branches of government, we’ll take the fight to the courts. And we’ve got a pretty good record of winning.”

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Had an interesting chat recently with Ron Chapman — Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart, and outside counsel for D.R. Horton Inc.

Horton, a Fort Worth, Texas-based homebuilder, is appealing the National Labor Relations Board’s January 2012 ruling that its individual-arbitration mandate every employee was required to sign, waiving their rights to class action, violated Section 7 of the National Labor Relations Act protecting employees’ rights to take such action to improve their working conditions.

Chapman had argued before the Fifth Circuit Court of Appeals in Horton’s behalf on Feb. 5 and said the hearing “went well.” (Here is a link to recordings of all the oral arguments presented in that case that day. Scroll down; you’ll find it. Here, too, is a piece that ran recently in the Dallas Business Journal offering some additional background.) Chapman expects the court to rule within 60 to 90 days.

What was especially interesting, Chapman told me, was the follow-up he received from the court three days after the argument. The court, he said, was directing both sides’ attorneys to draft additional briefs arguing whether they think the constitutionality of the NLRB board make-up at the time of its decision needs to be addressed before a ruling can be made. (As you’ll recall, in its recent decision in Noel Canning v. the National Labor Relations Board, a panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the recess appointments of three members of the NLRB because, the court found, the U.S. Senate was not in recess at the time President Barack Obama made the appointments.)

For reference, here is an HREOnline^™ blog post by Web Editor Mike O’Brien about that appeals-court ruling declaring Obama violated the Constitution when he bypassed the Senate to fill the NLRB vacancies. Here, too, is a Q&A O’Brien conducted with Joel S. Barras of Reed Smith on the ramifications and implications of that ruling.

Interestingly, this is the first case I’ve come across in which attorneys for both sides are being asked for their opinions as to whether a ruling can go forward or not without first addressing the constitutionality of the NLRB make-up in question.

Obviously, if Chapman and his counterpart both rule the appeals court’s decision should proceed without any bearing from the Canning case, then it will proceed. But, as Chapman told me, “if we both were to say it should not proceed until the constitutionality issue is addressed, then the board would not decide this case at this time.”

If you consider Barras’ description of such scenarios and multiply them out to all the cases decided by the NLRB with the Obama appointees, it could get messy:

It is important to note that, even if [regional] cases are invalid and the NLRB members lack the authority to take direct action, many of the board’s processes will continue. The various NLRB regions will continue to investigate unfair labor practice charges, issue complaints and try cases. Administrative law judges will continue to issue decisions and find violations of the Act.

The losing party, however, will likely appeal the decision to the board, which will effectively stay the [administrative law judge's] decision. That case will then be left in limbo until a quorum is properly appointed and rules on the decision, which would likely be delayed given the tremendous backlog of cases. In some limited instances, the board’s general counsel may seek injunctive relief in federal court to force a losing party who has appealed the decision to comply with the [administrative law judge’s] order, pending the NLRB’s eventual decision.

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Wal-Mart, the 8-million pound gorilla of retailing, is feeling the heat and responding forcefully. OUR Walmart, a coalition of disgruntled WalMart employees that is affiliated with the United Food and Commercial Workers Union, is staging a series of walkouts and protests by Wal-Mart employees at locations throughout the country, to culminate in protests at more than 1,000 U.S. stores this Black Friday. The organization says the workers will be protesting against what they say are unfair labor practices by the Bentonville, Ark.-based retailer. Wal-Mart has filed a complaint with the National Labor Relations Board seeking an injunction against the protests on the grounds that the planned protests violate a section of the National Labor Relations Act that limits picketing by a union seeking recognition to no more than 30 days. The NLRB has promised a ruling within a few days–an extraordinarily fast turnaround time, by the agency’s standards.

In its complaint, Wal-Mart maintains that the protests represent an ongoing attempt by the UFCW to unionize its workers and that the protests have exceeded 30 days. OUR Walmart has denied that its protests are about seeking union recogniation — instead, it says, they are designed to call attention to what it says are unfair wages and working conditions at Wal-Mart and retaliation taken by the company against employees who’ve spoken out. Wal-Mart has denied the allegations and says it’s confident the protests won’t dent its bottom line: “We don’t think what the unions are planning will have any impact on our business at all,” it told the Financial Times.

Meanwhile, Casey St. Clair, a 24-year old employee at a Target store in Norco, Calif., started a petition on Change.org calling for the retailer to grant its employees Thanksgiving Day off after she learned she was scheduled to work on Thanksgiving night. Target joins WalMart,  ToysRus and other large retailers that have begun opening their stores as early as 8pm on Thanksgiving night to accommodate the hordes of Black Friday shoppers who aren’t content to wait until the early morning next day to get their holiday shopping started. St. Clair’s petition has already garnered 365,000 signatures as of today. According to USA Today, Change.org had 91 petitions against Thanksgiving Day sales as of last Friday — the final tally of such petitions this Thanksgiving is expected to exceed last year’s total of 150, said Change.org spokeswoman Charlotte Hill.

As someone who isn’t crazy about shopping to begin with, I just don’t get the need to line up at a store at 8pm on Thanksgiving Day — unless, that is, you really despise sitting around with family. I expect to spend that time lounging away the effects of turkey-generated tryptophan, and I sympathize with the desire of my fellow Americans to be accorded that same right. That said, I question Ms. St. Clair’s decision to close her petition letter with “The world won’t end if people have wait 7 more hours to buy useless junk that will be outdated in a year anyway.” Kind of counterproductive to insult not only your employer but the customers who support it.

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If you think a request for information from the National Labor Relations Board is irrelevant and you have more important things to worry about … and you’ll just let it sit awhile … better think again.

An NLRB panel recently found that an employer had violated the National Labor Relations Act by failing to respond in a timely manner to a union’s requests for information, even though — as this alert from Barran Liebman points out — “the NLRB ultimately determined that the request for information was, as the employer argued, irrelevant … .”

In short, the board found — in its Oct. 23 ruling in the case of IronTiger Logistics Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO — that an employer has a good-faith duty under the NLRA “to respond in a reasonably timely manner to a union request for ‘presumptively relevant’ information—even when the employer believes it may have actual grounds for not providing that information” — this from another alert from Ballard Spahr.

“This decision,” it says, “expands the duty of employers by holding that they must respond to requests for what may be irrelevant information.”

For the record, and for a complete understanding of the NLRB’s reasoning behind the decision, this link takes you to the actual ruling. (Scroll to the free PDF download marked Oct. 23.) As the ruling states: “The Respondent was obligated to inform the union in a timely manner that it would not provide the information and the reasons for its refusal. An employer cannot simply ignore a union’s information request.”

According to Ballard Spahr’s rundown of the case,

[It] arose from a dispute about the apportionment of freight-delivery assignments between IronTiger and TruckMovers, two transportation firms that shared common ownership. The union represented IronTiger’s drivers but not TruckMovers’ drivers. After filing a grievance concerning the dispatch of loads to TruckMovers’ drivers, the union requested information related to all units of work dispatched to both companies’ drivers. Four and a half months passed before IronTiger even acknowledged the request, claiming generally that it was ‘harassment, burdensome and irrelevant.’ By then, the union had filed an unfair labor practice charge because IronTiger had provided no response.

In a 2-1 vote, the Board affirmed the Administrative Law Judge’s (ALJ) holding that IronTiger had violated Section 8(a)(5) of the [NLRA] by failing to respond in a timely manner to the union’s request for information. The Board began with the well-established premise that ‘a unionized employer must provide, on request, information that is relevant and necessary to the union’s performance of its duties as collective-bargaining representative.’ The Board further stated that ‘an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.’

In other words, the NLRB ruled that, because the union’s request for information involved unit employees, it was ”presumptively relevant,” entitling the AFL-CIO to a response within a reasonable time. It didn’t define a ”reasonable time,” but — says Barran Liebman — “made clear that 4.5 months exceeded this perimeter significantly.” That alert goes on:

In dissent, one board member argued that the majority’s ruling gives unions the latitude to ‘hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.’

While this opinion governs an employer’s obligation to respond only to a ‘presumptively relevant’ request, it serves as a reminder to employers to pay attention to their response times. An internal deadline of 30 days to respond is prudent, even when the employer’s response simply explains why a particular request is irrelevant.

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Leave it to the HRExaminer site, a frequent font of succinct and straightforward takes on HR, to provide us with this gem — “Is There Free Speech at Work? – by Heather Bussing, an employment lawyer and one of the site’s regular writers.

Not only is it informative, it’s timely — as a confluence of social media and rules and guidances from the National Labor Relations Board about social media streams into the workplace. (See this earlier post that provides a rundown of the NLRB’s new rules, with links to further background on them.)

Bussing starts off with an interesting and perhaps little-known fact, especially outside HR and employment-law circles: “Employees don’t have a Constitutional right to free speech or freedom of expression at work.” It’s only in the murky sea of social media, an employer’s attempt to control it to save its reputation and image, and the government’s attempt to squelch that attempt when protected concerted activity comes into play that the murk gets murkier.

“You know you can probably get fired for telling your boss to her face ‘Go to hell,’ “ she writes. “But complaining about her on Facebook can be protected speech.”

Interestingly, she writes, “employees’ protected speech under the National Labor Relations Act [which gives employees the right to discuss wages, hours and working conditions as well as organize a union] is actually an exception to an employer’s broad rights to restrict both speech and expression at work.”

I love her directness:

Saying the supervisor is a wing-nut, even to another co-worker, is probably not protected until there is something more that shows the employee was trying to get other employees to change working conditions. While getting rid of a bad boss would certainly change the work environment, just calling her names won’t. So name-calling is usually a personal gripe, and not protected.

The whole piece is worth reading, so I’ll stop with all these teasers. Except this last one, a key point to remember as you navigate this ever-expanding social-media-policy murk. Plus, Bussing just says it so well:

If what the company is really worried about is looking bad, then it should probably look deeper to see if there are things going on that would make it look bad. If so, it’s not a social-media problem, it’s a management problem. And policies and controlling what people say are not going to help.

There is no way to stop current or former employees from trash talking on social media. Employers shouldn’t try. It just creates a culture of monitoring and suspicion. Discipline, denials and drama just make it worse.  Social media is fast moving and things pop up and die quickly if they are ignored.

The best way to encourage employees to say great things about you is to be a great employer with a great service or product.

There are some companies that are horrible places to work or their products and services suck. They won’t survive social media. And that’s a good thing.

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The folks at Fisher & Phillips (Atlanta-based employment law firm) sent me this link to a pretty formidable write-up by D. Albert Brannen (a partner there), spelling out just how much you need to keep in mind now under the more aggressive National Labor Relations Board.

“Under President Obama,” he writes, “the NLRB has been very aggressive in further expanding employee rights to engage in [protected concerted activity through its] rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies. [Of those], no other policy area has received more attention by the NLRB than social media.”

What really impressed me were Brannen’s lists of rules or policies now deemed unlawful and lawful, based on the last of the NLRB General Counsel’s guidelines on social media, issued May 30. He lists 23 — repeat, 23 – under the unlawful category. Here’s just a sampling:

• Employees should not release confidential guest, team member or company information.
• Employees should not share confidential information with coworkers unless they need the information to do their job.
• Employees should not have discussions regarding confidential information in the break room, at home, or in open public places.
• Employees should not “reveal non-public company information on any public sites.”
• Employees should not post photos, music, videos and personal information of others without obtaining the owner’s permission and must ensure that the content can be legally shared.
• Employees should not use the employer’s logos and trademarks for non-commercial purposes.

There are 13 social-media policies or rules declared lawful. Again, just a sampling:

• Employees should not post “any opinion or statement as the policy or view of the employer or any individual in that capacity as an employer otherwise on behalf of the employer.”
• Employees should not post “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
• Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
• Employees should not discuss information related to the “safety performance of the employer’s systems or components or vehicles” and “secret, confidential or attorney-client privileged information.”

I’d memorize these if I were you.

For the record, here’s my latest blog post on the NLRB’s first social-media ruling (against Costco), which contains links to the rules and guidelines — and purposes behind them — issued thus far by NLRB’s Acting General Counsel Lafe Solomon pertaining to social media in the workplace and social-media policies. For a full explanation from the NLRB as to all of its guidances and rules, start on its home page and search or drill down to what you’re after.

Also, for the record, Brannen includes helpful advice about employment-at-will and off-duty access policies as well.

As he cautions in his conclusion:

By its nature, the NLRB is prone to what experts call ‘policy oscillations’ where its interpretations of the law may change with the political party in power at any given time. To some degree, these fluctuations can be expected. However, the current NLRB seems to have taken a dramatic turn in the expansive way it views employee rights. Employers should be aware of these recent developments and should review their work rules and policies to make sure that they still comply with the law as viewed by the current NLRB. Specifically, employers should revise their social-media, employment-at-will and no-access polices as soon as possible.

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