Category Archives: National Labor Relations Board

With Union Petitions Up, Get Your Message Out … NOW!

Since sharing this blog post the day before the National Labor Relations Board’s “quickie-election rules” went into effect on April Union14, I’ve been waiting to see if the predictions shared therein would come to pass.

More specifically, would there be — as predicted by various employment attorneys I talked to — a surge in the number of representation petitions filed with the NLRB by unions just waiting for those rules to help them hurry up their process?

Well, I just got confirmation from NLRB spokesperson Jessica Kahanek that there’s been a 32-percent spike in union petitions lodged with her agency in one month since the rule’s enactment. Broken down, that’s 212 petitions from March 13 to April 13 and 280 from April 14 to May 14. An impressive and additional 104 petitions were filed between May 14 and May 27, she tells me. Spike indeed!

Kahanek also notes that elections are now taking place — on average — 23 days from the date of the petition. This duration is a dramatic shift from the 38-day average that existed under the previous rule.

What’s also interesting to note is that the petitions didn’t come flooding in starting on April 14. On the contrary, says Steve Bernstein, a Tampa, Fla.-based labor attorney with Fisher & Phillips, “in the first two weeks after the rule, the numbers of petitions filed were flat, maybe even down some; only in the last two to three weeks have we been seeing them really climbing.”

So what does that mean? It means even the unions needed some time to figure out all the new procedures contained in the new rules. “It’s been a learning curve for everyone,” Bernstein says.

What it all really means — to employers — is now’s the time to talk up your company and make no bones about stressing with employees that it’s a better place to work communicating directly with management than through third-party representation.

Bernstein calls this “front-loading the message.”

Employers, he says, “have the opportunity to use this [albeit shorter] period of time to take the initiative away from the union.”

Some companies, in fact, are getting ready for the NLRB before the NLRB even comes knocking. They’re getting all the new data being asked for — employee emails, phone numbers, work histories, job classifications, etc. — collected and collated now “so they’re positioned to be standing on ‘Go’ when the petition arrives and can use all their time getting their message out,” says Bernstein. He recommends that you:

“start from the standpoint that, with the new rules, comes a new petition form giving unions the opportunity to request the earliest election dates possible, usually two weeks out. So you, the employer, can posit the question, ‘Why is this union trying to move so fast on something so important to your lives and the lives of your families as this?’ “

In terms of the new administrative and disclosure requirements contained in the rules, he says, rather than focusing only on scrambling around trying to meet them all, think about taking this approach:

“In many circles, the kind of employee data they’re now demanding from employers would look like an invasion of privacy. So you can put out the immediate message, ‘They’re not even here yet and look at the personal information they already want on you. Why do they want all this from us?’ “

In other words, the NLRB has changed the rules, so you can too. (FYI, my earlier post, linked above, contains the NLRB’s position and purpose in the rule changes.)

You don’t even have to wait for a petition to start the conversation. In addition to getting all your data ducks lined up, you can join with the many companies Bernstein is already seeing “embracing the notion that it’s OK to talk about this, now, with employees,” sooner than later, he says.

Nothing wrong with telling your employees, “Let’s have this union dialogue now,” he says, especially in businesses and industries where unions are dominant. Some companies are even fashioning tailored, customized videos along these lines to go with their orientation processes, i.e., why no union is better than representation.

“You’re really trying to establish this line of communication, getting them used to hearing about this, so it doesn’t just sound like a defensive move after the petition has arrived,” Bernstein says.

So, to recap, your message to them: “Hey, it’s OK to talk about this now, folks!”

And my message to you: Ditto.

Twitter It!

The Mindfulness-Retaliation Connection

Two researchers from the University of North Carolina Kenan-Flagler Business School came up with an interesting connection 166198718 -- meditation2between mindfulness and employee retaliation that has me drawing a further connection of my own.

The Kenan-Flagler study by Ph.D. student Erin Cooke Long and Professor Michael S. Christian suggests practicing mindfulness at work, which can incorporate workplace meditation, can actually reduce retaliatory behavior in employees who feel treated unfairly. (Here’s the study’s abstract.)

I suppose this can be seen as intuitive, but it’s apparently the first time mindfulness and retaliation have been connected in any study. As Cooke Long describes it:

“When employees think they have an unfair boss or colleague or the organization is unfair, they might be tempted to seek retribution or act in ways to ‘even the score.’ Mindfulness helps them short-circuit emotions and negative thoughts so that they can respond more constructively.”

Which gets me to my additional connection: How bout keep them mindful and meditating, and perhaps you can keep the unions from knocking at your door? Perhaps we can add “incorporating mindfulness into your workforce” to the many suggestions experts and attorneys offered in a recent webinar I blogged about the day before the National Labor Relations Board’s “quickie-election” rule went into effect.

Everyone speaking in that webinar agreed the rule — which became effective April 14 — would increase union activity and win rates within the business community.

And as Jeff Harrison, a Minneapolis-based Littler shareholder, said then, employers should be looking more closely at their people issues than ever before, because unhappy employees make for likely union members.

“Are your people treating your people right?” he said, because it’s those types of complaints — treatment ones — that “are almost always behind” employees being driven to unionize.

At the risk of making another bold connection, my sources for this blog post on the importance and difficulty of bringing mindfulness into the workplace — including our benefits columnist, Carol Harnett — would concur that offering such a stress-reducer certainly sends the message that employees are being treated well.

And if the UNC study is to be believed, which I don’t see any reason why it shouldn’t be, perhaps mindfulness can also keep their minds off “getting back” at you through protected concerted activities.

Twitter It!

Get Set for the NLRB’s ‘Quickie-Election’ Rule!

If you thought April 15 was a date to keep you awake at night, the day before — April 14; that’s tomorrow, folks! — could be worse. 116040122 -- labor unionTomorrow is the day the National Labor Relations Board’s “ambush-election rules,” aka “quickie-election rules,” governing how union representation is voted on by employees, takes effect.

Late last month, I was made aware of this post at, pointing out (in pretty cryptic terms) that “as President Obama’s union attorneys controlling the National Labor Relations Board push through their so-called ‘ambush-election rules’ … the NLRB is conducting ‘practitioner’ training at NLRB offices and other locations (including a union office) across the country.”

The post says little else, but does include the PowerPoint presentation being used for the practitioners’ education. I found it somewhat interesting. You might too.

Meanwhile, NLRB General Counsel Richard F. Griffin Jr. did release early last week a guidance memo on modifications to organized-labor-representation procedures effective April 14 — specifically, how new cases will be processed from petition filing through certification. In his words,

“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently.”

What effect these new rules will have remains to be seen, though Joel Barras, employment attorney at Reed Smith, says he’s pretty  confident they’ll “dramatically limit the time employers have to run pro-company campaigns.” As he puts it:

“I believe unions will now wait to file their union representation petitions until the new rules take effect. If I am right, and we see a high number of petitions filed in mid to late April, that would serve as an excellent indication that unions agree with employers that the new rules will dramatically improve the likelihood that employees will vote to join unions.”

In a webinar Friday by several Littler attorneys, addressing what more than one called this “new reality,” Tanja Thompson, Memphis, Tenn.-based office managing shareholder for Littler, confirmed that her office has seen a recent “slowdown” in the number of union petitions filed, indicating many are, indeed, probably waiting to file under the new rules, as Barras predicts.

“Make no mistake; this rule change is designed to see increases in union win rates,” she said. ” … We do anticipate accelerated activity starting April 14.”

She and the others shared cautionary tips for making sure nothing is missed in the new system, such as adhering to deadlines for supplying lists of personal contact and job information of all likely and eligible union members … and remembering that union notices will now be coming via email, not fax, and “unions don’t always get it right in who they email, yet that’s who’s being served,” said Thompson.

They also laid out all kinds of strategies for being proactive and not waiting to take action until a petition is filed under the new system, which is expected to change the current six-week election process to something closer to two-to-three weeks.

Action plans should include putting your employer statement out now on unions and how you view them, ensure supervisors and managers are comfortable talking with employees about that view, and ensuring all workers understand the value of their wages and benefits.

“My fear for employers,” said Jeff Harrison, a Minneapolis-based Littler shareholder, “is they’ll be busy meeting the many requirements [of responding to a petition] at the expense of focusing on their [anti-union] campaign communication strategies.”

For a further frame of reference on what’s coming, here is our most recent post by Michael J. O’Brien on the “current ‘quickie’ kerfuffle,” as he calls it — namely, the vote on March 19 by the U.S. House of Representatives, passing a GOP-led resolution to overturn the rule. With Obama almost certain to veto it, the vote appears to have created hardly a wrinkle in the NLRB’s preparations, as I indicated above.

Here, too, is some good discussion of the GOP’s effect on the NLRB that Tom Starner raised in a January news analysis. Specifically, he writes, “while the NLRB has characterized its actions as ‘modernizing its processes,’ legal experts representing employers say the real impact will deny employers an adequate chance to stage an anti-union campaign prior to employee voting.”

So … “gather your bragging points now,” as Harrison said in the webinar. “Conduct vulnerability assessments,” with special focus on employees being treated fairly, with dignity and respect, and with robust employee-appreciation programs … those catch phrases “you often find in union petitions,” he said.

Bottom line, look closely at your people issues, said Harrison. “Are your people treating your people right?” Because it’s those types of complaints — treatment ones — that “are almost always behind” employees being driven to unionize.

Twitter It!

Krawcheck Calls for Greater Diversity

Sallie Krawcheck

Sallie Krawcheck

The second day of SHRM’s Employment Law & Legislative Conference featured a morning talk by Sallie Krawcheck, a former high-profile Wall Street executive who’s now the chair of Ellevate, a New York-based mentoring network for women (formerly known as 85 Broads).

In describing her experiences as one of the few female leaders in an industry that continues to be dominated by white males, Krawcheck paid tribute to HR. “The first young man I had to fire threatened to kill me,” she said. “He said he would hunt me down in a dark alley. The second young man I had to fire insisted that I was doing so because I was actually in love with him. He suggested that I put him up in a love nest. So, I have a great deal of respect for what you in HR have to deal with.”

She also offered her own take on what led to the financial meltdown of 2008: “I don’t think it was greed so much as groupthink,” she said. “And what breaks groupthink? Diversity of thought.”

Krawcheck called on HR to “keep us honest, give us training on this, encourage us to have those courageous conversations where we say, ‘Dave, you interrupted Susie five times during her presentation, but you didn’t interrupt Bill once during his.’ ”

Companies today suffer from a surplus of mentoring opportunities for women but a deficit of sponsoring programs, she said, in which executives actively advocate for women in their careers. “Some companies are actually replacing their mentoring programs with sponsoring programs.”

Companies can demonstrate their commitment to diversity by making it a key developmental milestone, said Krawcheck. “Here’s a thought: Give responsibility for diversity to a high-potential white guy.”

Later on that day, a breakout session featured two board members from the National Labor Relations Board, who sought to explain the Board’s reasoning on controversial matters such as so-called “ambush elections” rule regarding union-certification elections.

“I’m told the best part of the new rule starts on page 500, where [Harry] Johnson and I write our dissent,” said Philip Miscimarra, who is — along with Johnson — one of the two Republican appointees to the five-member Board.

He and Johnson disagreed with the new elections rule on a number of different issues, particularly its dramatic compression of the time allowed between when a union files a certification petition and the election. “The [National Labor Relations Act] is silent with respect to timing,” said Miscimarra. “How fast is too fast, or how slow is too slow — it is silent on those issues.” He noted that both houses of Congress have passed a “resolution of disapproval” of the new rule — a resolution that could potentially nullify the rule should a Republican win the next presidential election and sign the resolution into law.

One of the most contentious issues the Board continues to wrestle with, said Miscimarra, is the extent to which companies have the right to restrict concerted activities by employees that could be considered as “disrespectful, discourteous or insubordinate.”

“Employers have been surprised to learn that rules they have in place for a good reason — rules that require employees to show courtesy and respect — are unlawful under our statute,” he said.  “I do hope the Board can do a better job of devising a standard in this area that people will find helpful.”


Twitter It!

NLRB: Targeting McDonald’s as ‘Joint Employer’

I suspect most of you have been following, to some extent, the fast-food worker protests of the past couple of years. As recently as Dec. 4, fast-food workers from around the country demonstrated in front of their restaurants, continuing their fight for a $15-an-hour wage. 486860229

Well, the latest update in the story came on Friday, when the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, as joint employers, alleging that they violated the rights of employees participating in the protests by making threats and retaliating against them.

Kendall Fells, organizing director of the Fight for 15, a group formed to advance the cause of a $15 living wage, told the Chicago Tribune (registration required) that “McDonald’s exerts such extensive control over its franchised business operations that, for all intents and purposes, McDonald’s is the boss. It’s obvious that the company should share responsibility with franchisees for the treatment of its workers.”

The NLRB’s General Counsel, Richard Griffin, issued 78 charges against McDonald’s and its franchisees. In response to the NLRB announcement, McDonald’s issued the following statement

“McDonald’s is disappointed with the Board’s decision to overreach and move forward with these charges, and will contest the joint employer allegation as well as the unfair labor practice charges in the proper forums. These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants. McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business. McDonald’s serves its 2,500 independent franchisees’ interests by protecting and promoting the McDonald’s brand and by providing access to resources related to food quality, customer service and restaurant management, among other things. These optional resources help entrepreneurs operate successful businesses. This relationship does not establish a joint-employer relationship under the law—and decades of case law support that principle.”

On Friday afternoon, I asked Marshall Babson — counsel in the New York and Washington offices of Seyfarth Shaw, who served as a member of the NLRB from 1985 to 1989 — for his take on the board’s move. “I can’t imagine what evidence the general counsel at NLRB has to justify the issuance of the complaints, but for more than 50 years, the general view has been that you can’t be a joint employer unless you’re an employer,” he said.

“My understanding is that if you’re McDonald’s and most [other] franchisors, you don’t become engaged in the hiring and firing of these employees,” he went on. “You don’t set their wages, benefits, and terms and conditions of employment on a day-to-day basis. You don’t say that [someone] should be terminated for this or that. … So [the NLRB complaints] represent an extraordinary departure from the past.”

In the 40 years he’s been doing employment law, Babson said he doesn’t recall a single instance when an otherwise legitimate relationship has been challenged in this manner. Babson said his advice to employers continues to be the same: If you’re a franchisor, keep focusing on brand integrity: What kind of uniforms people should wear and the way products should be prepared; and don’t act in the capacity of an employer.

“If it takes the Supreme Court or Congress to once again remind the board that the common-law definition of employer applies here, then [so be it],” he said. “But, in the meantime, it’s unfortunate that this has the potential to disrupt long-term traditional business relationships.”

Twitter It!

About That NLRB Ruling

In a divided opinion yesterday, the National Labor Relations Board ruled that employees can use their company’s email system for the purpose of Section 7  union-organizing activities. The case was brought to the NLRB’s attention by the AFL/CIO, which brought a lawsuit against California-based Purple Communications over its policy banning employees from using company email for activities related to union organizing.

In ruling 3-2 in favor of the plaintiffs, the NLRB overturned its 2007 Register Guard decision, in which it gave companies the right to restrict employees’ use of company email for organizing purposes without eliminating their right to use work email for other personal purposes. The latest ruling is “responsive to the enormous technological changes that are taking place in our society,” the board wrote. The NLRB said its ruling is “carefully limited” and applies only to employees who have already been granted access to company systems for their own work. Employers are not required to let employees use work email for Section 7 activities, the Board wrote — indeed, it can ban work email from being used for these purposes during work- and non-work hours so long as it’s part of a total ban on non-work use of its email system.

However, Philip Miscimarra, one of the two board members who voted against the majority, said that technological advances mean that employees have plenty of electronic options other than company email for the purposes of union-related communication. “National uprisings have resulted from the use of social media sites like Facebook and Twitter,” he said.

Jeffery Meyer, a labor and employment attorney with Kaufman Dolowich & Voluck, says the ruling “opens the floodgates for a full attack on employer property rights.”

“What this decision does is to provide unions and employees with a legal foundation to argue that Section 7 rights now trump an employer’s property right in almost any circumstance,” Meyer writes in a brief on the ruling.

Employers should review and, if necessary, revise their policies on electronic devices and instruments to take advantage of the “caveats delineated in the Board’s decision,” he writes. Although it’s a drastic move, “strict yet clear prohibitions and/or controls on personal use of company email systems could prove to be the difference in an organizing campaign where the union might not otherwise be able to contact the entire workforce.”

A company’s failure to revise its policies “could provide unions with a very useful tool to organize their employees,” writes Meyer. “Purple Communications serves as concrete evidence that a union will not think twice to use an unlawful handbook policy to its advantage in order to seek a new election should the employer win the first go-round.”

Twitter It!

Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And — aside from staying on that apparently long, arduous road toward equal pay — what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

Twitter It!

Dangers of Social-Media Discipline

judge's gaveEmployers should be concerned by the National Labor Relations Board’s latest decision pertaining to social media and work. If not concerned, then taking very special note of, at the very least.

This ruling, as detailed thoroughly in this posting from Littler Publications, centers around employees’ off-duty social-media posts about work, and what employers can and can’t mandate about that.

In the ruling, as the posting puts it, the board came down hard on the employer — Triple Play (a.k.a., Triple D) Sports Bar and Grille in Watertown, Conn. — in that it “set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7 [of the National Labor Relations Act], determined that [a Facebook] ‘Like’ in that case was protected, reversed the employee’s firing and found a key provision in the employer’s social-media policy to be unlawfully overbroad.” I’d say that’s coming down hard.

The case has to do with several employees who were complaining in a Facebook discussion about a mistake they suspected the bar’s owners of making when calculating their state tax withholding. Some in the discussion were simply following the lines of the conversation. Here is Littler’s rendition of what transpired:

The owners organized a staff meeting with the payroll provider to discuss the issue. Before this meeting, Jamie LaFrance, a former employee who had recently left [her job] started a Facebook conversation by posting the following status update:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”

Several comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella, selected the “Like” option under LaFrance’s initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

“Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.”

Another current employee, Jillian Sanzone, followed this statement by posting: “I owe too. Such an asshole.”  More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.”  They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.

Spinella accused Triple D of illegal actions under the NLRA and the case came before the NLRB. Triple D argued that the disparaging comments and Spinella’s “Like” took the case outside the realm of the NLRA’s Section 7 protection as a concerted activity. The board, however, ruled otherwise because: Spinella did not specifically “like” any of LaFrance’s allegedly defamatory comments in and of themselves, the comments weren’t intended for public consumption on a private Facebook page and no one mentioned anything disparaging about the employer, per se, but related everything to an ongoing labor — i.e., tax withholding — dispute.

The NLRB also ruled this portion of Triple D’s social-media policy was too broad:

“[W]hen Internet blogging, chat room discussions … or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.  … In the event state or federal law precludes this policy, then it is of no force or effect.”

So what should you be concerned about exactly? Littler attorneys Philip Gordon and Zoe Argento offer these six takeaways in their post:

  1. Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.
  2. When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.
  3. When analyzing whether otherwise protected social-media posts have crossed the line and lost their protection, the NLRB will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.
  4. The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.
  5. Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media.
  6. The NLRB continues to closely scrutinize social-media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech.  Relatedly, employers should expect the board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation.  Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.

For your additional reading pleasure, and pointers, here are numerous blog posts we’ve written about social media in the workplace and social-media policies employers are drafting, should be drafting and shouldn’t be drafting in their attempts to control its impact.

Twitter It!

New Rulings Affect Labor Landscape

Mcdonalds rulingLabor unions saw a setback today with the just-announced ruling from the Wisconsin Supreme Court upholding that state’s law that effectively bans collective bargaining by state government employees. Unions nationwide have poured resources into contesting the law, which ignited a firestorm in Wisconsin when it was signed by Gov. Scott Walker three years ago.

But on a national scale, unions should be much happier about the recent ruling from the National Labor Relations Board’s general counsel, Richard F. Griffin Jr., that McDonald’s Corp. could be held jointly liable for labor and wage violations by its franchisees. Workers at various McDonald’s locations have alleged they were retaliated against after participating in strikes and demonstrations demanding higher wages. Griffin’s ruling, which will probably go before the five-member NLRB board and could possibly go as far as the U.S. Supreme Court, says McDonald’s is a joint employer along with its franchisees and therefore shares responsibility for the retaliatory measures allegedly taken against the employees. The NLRB found that of 181 cases filed against McDonald’s since late 2012, 43 cases have been found to have merit and that the Oak Brook, Ill.-based fast-food giant and its franchisees will be named as respondents if the parties cannot reach settlement, while 68 of the cases have been dismissed and 64 remain under investigation.

The ruling has the business community hopping mad — and that’s no surprise, considering that it has the potential to significantly alter the longstanding franchisor-franchisee business model and could make it easier for unions to organize hourly workers at national retail and restaurant establishments.

The following statement from Angelo Amador, vice president of labor and workplace policy at the National Restaurant Association, reflects what many others in the business community are saying about the ruling:

The ruling … asserting that McDonald’s Corp. is a ‘joint employer’ of its franchisees’ employees overturns 30 years of established law regarding the franchise model in the United States, erodes the proven franchisor/franchisee relationship and jeopardizes the success of 90 percent of America’s restaurants who are independent operators or franchisees.”

Heather Smedstad, senior VP of human resources for McDonald’s USA, said in a statement that “this decision to allow unfair labor practice complaints to allege that McDonald’s is a joint employer with its franchisees is wrong. McDonald’s will contest this allegation in the appropriate forum.”

But proponents of the ruling say McDonald’s actually exercises significant control over its franchisees’ employees, requiring them to abide by an extensive list of rules and regulations and even providing the franchisees with software that helps them determine staffing levels for specific times of the day. Here’s what Micah Wissinger, an attorney who represents McDonald’s workers in New York, told the Society for Human Resource Management:

McDonald’s can try to hide behind its franchisees, but today’s determination by the NLRB shows there’s no two ways about it: The Golden Arches is an employer, plain and simple. The reality is that McDonald’s requires franchisees to adhere to such regimented rules and regulations that there’s no doubt who’s really in charge.”

Former NLRB chairwoman Wilma Liebman told the New York Times that the decision “could give fast-food workers and labor unions leverage to get McDonald’s to negotiate about steps that would make it easier to organize McDonald’s restaurants.”

It’s clear we now have yet another NLRB action that’s once again galvanized the business community in opposition. Considering the sheer number of employees who work for franchisees, along with the record number of temps and contractors in the U.S. workforce today, the ultimate fate of this ruling will be very closely watched .

Twitter It!

Supremes Invalidate NLRB Recess Appointments

Noel CanningThe U.S. Supreme Court dealt a setback to President Obama today when it ruled that he had violated the Constitution when he appointed officials to the National Labor Relations Board while the Senate was in a recess period, meeting on a “pro forma” basis every three days. The court ruled that a 72-hour period is not long enough for a “recess appointment” — however, a recess of 10 or more days is sufficient for such appointments, it said.

Obama made his three recess appointments to the NLRB in 2012 after Senate Republicans had repeatedly blocked his nominees while the Senate was in session (and preventing the NLRB from achieving a quorum in the process). Bottling company Noel Canning challenged the validity of those appointments when it appealed an NLRB ruling that found the company had engaged in an unfair labor practice by refusing to enter into a collective-bargaining agreement. Noel Canning’s lawyers argued that the ruling was invalid because the board members had not been properly appointed. A federal appeals court sided with the company. (My colleague Kristen Frasch has been following this controversy closely.)

What will the Supreme Court’s decision mean for employers? The NLRB will now most likely have to review hundreds of rulings made by the previous board that have since been invalidated by Noel Canning. Many of those decisions were considered excessively pro-employee and anti-employer. However, things could get worse for companies in the wake of today’s ruling, write BakerHostetler employment attorneys Mike Asensio and Jeremiah Hart, who note that today’s properly constituted NRLB has shown that it will follow the labor policy of previous Boards and will most likely rubber-stamp many of the previous decisions invalidated by Noel Canning:

It is not a certainty that the NLRB will simply rubber stamp the decisions invalidated by Noel Canning, however. Noel Canning gives the current NLRB an opportunity to further push its employee- and labor-friendly agenda. In the wake of Noel Canning, the Board will now have to reissue hundreds of decisions and could, if it desired, make those decisions more protective of employee rights. Typically, the Board would have to wait years for these issues to work their way through the litigation process. The Board now has the opportunity to significantly contribute to the employee-friendly labor law agenda of the Boards of recent past in a very short amount of time.”

In other words, if you thought things were tough for employers at the NLRB before, it’s possible you ain’t seen nothin’ yet. And, while today’s ruling was clearly a setback for Obama, things could’ve gone much worse for him had the four most conservative Justices had their way, writes Venable LLP’s John Cooney, a former assistant to the Solicitor General and deputy general counsel at the Office of Management & Budget:

In reality, there was a sharp disagreement division between the 5 Justices who signed Justice [Stephen J.] Breyer’s opinion, including Justice Kennedy, and 4 Justices who would have greatly limited the President’s Recess Appointment power … These 5 Justices held that the President can make recess appointments during any recess of the Senate of sufficient length. … The four conservative Justices who did not join Justice Breyer’s decision would have substantially curtailed the President’s recess appointment power, in a manner that would have deprived this power of much of its historical significance.”

Obama made his recess appointments after having been stymied by the opposition party in the Senate. However, as Justice Breyer wrote in the majority opinion: “The recess appointments clause is not designed to overcome serious institutional friction. Friction between the branches is an inevitable consequence of our constitutional structure.”


Twitter It!