Hunton Employment & Labor Perspectives

New York’s fast food workers won a major victory last month when the state’s Wage Board voted to recommend a substantial increase in their minimum wage.

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On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...

On July 6, 2015, the National Labor Relations Board invited interested parties and amici to submit briefs in Miller & Anderson, Inc., 05-RC-079249, in connection with the Board’s reexamination of whether temporary employees provided to a company by staffing agencies may be included in the same bargaining unit as the company’s direct employees.  Briefs are due by September 4, 2015.

As we continue our discussion of the NLRB’s “quickie election” rules that went into effect on April 14, please join Hunton & Williams LLP for a complimentary interactive webinar.

Under the National Labor Relations Act (“Act”), employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act.  But how far can employees push the boundary before their conduct will be found indefensible?

As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country.  As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed.  Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules.  To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th.  From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60.  Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.

If your company did NOT attend our recent webinar concerning the new Ambush Union Election rules, then please READ ON:

Often times, the same set of underlying facts will give rise to both a contractual dispute between an employer and a union and an unfair labor practice charge. In these instances, an arbitrator usually decides the contract dispute, while it is the National Labor Relations Board's responsibility to determine the merit of the alleged unfair labor practice. Historically, however, the Board has commonly declined to hear unfair labor practice charges related to contractual disputes, and has instead deferred to arbitrators' earlier contractual rulings. Until recently, the burden fell on the party seeking to avoid Board deferral (usually the union) to prove that deferral was inappropriate. Practically, this ensured that employers could easily avoid addressing the same issues or facts in essentially duplicative litigation.

Please join Hunton & Williams LLP for a complimentary webinar on Thursday, March 12, 2015
2:00 pm ET – 3:30 pm ET

Program will cover the following:

• NLRB’s “Quickie Election” rules that will go into effect in April 2015
• The controversial “micro” bargaining unit rules that make it easier for a union to get its foot in the door
• Practical things you can do NOW to foster a union free environment
• Important steps to best posture your organization in the event of a union campaign

Hunton & Williams LLP will seek CLE credit for this program in CA, FL, GA, NC, NY, TX and VA. Credit hours are not ...

The National Labor Relations Board announced its Final Rule governing union representation case procedures, claiming that such Rule aims to “remove unnecessary barriers to the fair and expeditious resolution of representation questions.”  Specifically, the Rule claims to “streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

On March 26, 2014, in a novel and potentially ground-breaking decision, National Labor Relations Board (“Board”) Region 13 Director Peter Sung Ohr ruled that Northwestern University football players who receive athletic scholarships are “employees” of the University and are entitled to unionize.  Ohr ordered a secret ballot election to be held for eligible players to vote on whether they want to be represented by the College Athletes Players Association, the Petitioner in this case, for collective bargaining purposes.

On February 25, 2014, National Labor Relations Board (“NLRB” or “the Board”) General Counsel Richard F. Griffin issued Memorandum GC 14-01 to outline the agency’s enforcement priorities for the coming year.  The memorandum, which requires regional offices to submit matters of special interest to the Board’s Division of Advice for guidance on how to proceed, groups those priorities into three categories: (1) matters that involve General Counsel initiatives or areas of law and labor policy that are of particular concern to his office; (2) matters that involve difficult legal issues or areas of law in which governing precedent is unclear; and (3) an updated and expanded list of case-handling matters that have traditionally been submitted to the Division of Advice.

In prior posts, we reported on the U.S. Department of Labor’s attempt to narrow the “advice exception” to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act.  Most recently, the DOL had indicated its intent to issue a final rule in March of 2014 that would narrow the well-known “advice exception” to the reporting requirement to require reporting of any consulting relationships where the consultant engages in actions or communications that would indirectly or directly persuade employees regarding organizing.  Since it was first proposed in 2011, the anticipated final rule has drawn criticism from employers and the attorneys who provide valuable legal advice to employers in the context of union organizing.  If adopted, the rule would have a significant impact on employers because they would no longer be able to avoid reporting third-party consulting arrangements by isolating consultants from direct employee interaction.  The rule could also interfere with an employer’s ability to obtain legal advice from their attorneys due to the concern that both the employer and the attorneys may incur reporting obligations as well.

Workers at the Volkswagen AG plant in Chattanooga, Tennessee voted against union representation by the United Auto Workers. The highly anticipated 3-day secret-ballot election, supervised by the National Labor Relations Board, resulted in a 712 to 626 loss for the UAW. This particular election was significant in that a result for representation would have given unions a strategic entry point into the Southern labor market, which has long been resistant to unionization efforts. Additionally, a result for representation would have allowed for the first ever implementation of a German “works council” model for a United States employer. Under German law, a “works council” is a group of elected white-collar and blue-collar council members, separate from a union, that meets with management to discuss a wide variety of working condition issues. This model at the Volkswagen plant may have permitted the experimentation of a more collaborative system between management and workforce, as compared to the fundamentally adversarial relationship between management and traditional labor unions.

On Monday, January 6, 2014, the National Labor Relations Board (“NLRB”) announced that it declined to seek U.S. Supreme Court review of two adverse rulings concerning its rule requiring employers to display posters informing employees of their right to unionize.  Under the rule, an employer’s failure to display the poster would have constituted an unfair labor practice.

Recently, the United States Court of Appeals for the Fifth Circuit handed down a significant ruling in the continuing conflict over the ability of employers to require employees to arbitrate employment disputes and to waive the right to class arbitration.  In a long-awaited – and, in many circles, expected – decision, the Court overturned the National Labor Relations Board’s ruling that employers violate the National Labor Relations Act by forcing employees to submit employment disputes to individual arbitration.  The Court’s decision may pave the way for employers to enforce class arbitration waivers without fear of NLRB enforcement action….at least not anytime soon.

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

On Friday, May 31, 2013, Hunton & Williams partner Michael Shebelskie argued on behalf of Big Ridge Inc. in Big Ridge Inc. v. NLRB, the lead case pending in the U.S. Court of Appeals for the Seventh Circuit in which an employer has challenged the constitutionality of President Obama’s January 4, 2012 recess appointments to the NLRB.  Mr. Shebelskie and Hunton & Williams also argued against the validity of the President’s recess appointments before the Fourth Circuit earlier this year in Huntington Ingalls Incorporated v. NLRB.  Argument in the Big Ridge case comes hot on the heels of ...

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool. 

NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

On May 7, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated a rule promulgated by the NLRB that would have required employers to post notices of employee’s rights under the National Labor Relations Act (“NLRA”) in the workplace.  According to the Court, employers have the right not to speak, and thus can be silent, on these issues.  Another case regarding the same issue is currently pending on appeal in the Fourth Circuit.

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations.  Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the ...

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained in the expired contract.

Those employers hoping for an appellate court decision on President Obama’s controversial “recess” appointments to the National Labor Relations Board will have to wait a while longer.  In Richards v. NLRB, 7th Cir. No. 12-1973 (decision issued December 26, 2012), the Seventh Circuit sidestepped a ruling on the “recess” appointment question by denying the employer’s petition for review on standing grounds.

Michigan GOP leaders announced plans on December 6, 2012, to fast track “right to work” legislation during the lame duck session.  Just hours after the legislation was introduced and amid protests at the state Capitol, both the state Senate and House of Representatives approved bills prohibiting private-sector unions from requiring non-union employees to pay union dues as a condition of employment.  The Senate also quickly voted to approve a bill banning public-sector unions, except those representing police officers and firefighters, from requiring non-union members to pay union dues. 

The National Labor Relations Board’s (“NLRB”) General Counsel recently released an analysis of contested at-will employment clauses in two employment handbooks and ultimately concluded that neither violated the National Labor Relations Act (“NLRA”).

Employees had filed charges with the NLRB alleging that the at-will employment clauses contained in the employee handbooks distributed by Rocha Transportation, a California trucking company, and SWH Corporation d/b/a Mimi’s Café, a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think that they could not engage in activity protected by the NLRA.  The clause contained in Rocha Transportation’s handbook advised its employees that their employment is at-will and may be terminated at any time.  It also stated that “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the Company has the authority to make any such agreement and then only in writing.”  Mimi’s Café’s description of at-will employment in its handbook included the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.”  The NLRB’s Division of Advice prepared two memos which found that each of the clauses described above were lawful.

Section 302 of the Labor Management Relations Act (LMRA) is, and always has been, an odd law. Its bare terms — which make it unlawful for an employer to “pay, lend or deliver” money or any “other thing of value” to a labor union or official, or for a union to “request, demand, receive or accept” the same from an employer — can be read expansively. Its most commonly cited proscriptions carry nothing more than a general intent requirement, suggesting that one can violate its provisions inadvertently.

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As noted yesterday in our post, the United States District Court for the District of Columbia’s decision to strike down the National Labor Relations Board’s “quickie” election rules was based on a highly technical analysis.  Specifically, the Court found that the Board failed to obtain a proper quorum of at least three Board Members because of Republican Member Brian Hayes’ limited involvement in the rulemaking process.  However, the Court indicated that the Board might have authority to issue the quickie election rules if it musters a legally recognized quorum.

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The  Court's Order reads:  “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that ...

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights.  Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act.  As expected and as we previewed in a prior posting, Senate Democrats recently announced new legislation that would narrow the definition of “supervisor” under the NLRA, increasing the number of workers eligible to join unions.

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times.  The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.”  Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule.  The groups argued the NLRB did not have statutory authority to issue the notice requirement.  While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB.  A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the appointments.  In Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC, a case in which the NLRB is seeking a federal court injunction to declare an end to an employer lockout, the Defendant is contesting the action on the grounds that because three of the Board’s five members have not been validly appointed, the Board has no authority to act.

Last month, the Eleventh Circuit issued an important ruling in favor of an employee who is accusing his employer and UNITE HERE of violating the Labor Management Relations Act ("LMRA") by entering into an organizing rights agreement that includes employer neutrality and employee access features.  In Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir. January 18, 2012), the Court reversed a lower court decision dismissing Mulhall's lawsuit.  That court had held that Section 302 of the LMRA, which forbids employers from "pay[ing], lend[ing] or deliver[ing]" money or any other "thing of value" to a labor organization, could not be construed to outlaw voluntary agreements between employers and unions that set conditions for union organizing campaigns.

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

Two members of the National Labor Relations Board recently held that employers may not require employees to enter into arbitration agreements, as a condition of employment, that waive the ability to pursue class or collective claims. The Board’s ruling does not sound the death knell for class action waivers, however, as many Plaintiff’s lawyers have touted.

On Monday, the National Labor Relations Board swore in three new Board Members.  The NLRB now has a full Board with five Members for the first time since August 2010.  The new members -- Sharon Block, Terence F. Flynn, and Richard Griffin -- were named by President Obama on January 4, 2012, as recess appointments.

Their membership on the Board will likely be a continuing source of political friction and legal controversy since the Senate was not formally in recess at the time the President announced their appointments.  The U.S. House of Representatives Education and Workforce Committee ...

In a political shocker, President Barack Obama announced Wednesday that he will make recess appointments to immediately fill three NLRB Board Member vacancies.  President Obama’s appointees include two Democrats, union lawyer Richard Griffin and Labor Department official Sharon Block, and one Republican, NLRB lawyer Terence Flynn.

President Barack Obama recently announced that he intends to nominate Sharon Block and Richard Griffin to the National Labor Relations Board (“NLRB”).

Block and Griffin (both lawyers) have significant experience working to advance organized labor policies.  Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  She was previously a senior labor counsel for the Senate Health, Education, and Labor and Pensions Committee and worked for Senator Edward Kennedy during that time.  Block also served at the NLRB as an attorney.  Griffin is the general counsel for the International Union of Operating Affairs, and he is a member of the board of directors for the AFL-CIO Lawyers Coordinating Committee.

We reported last week that the NLRB's new "ambush election rule," as it is called by some critics, is facing a federal court challenge from a coalition of business groups led by the U.S. Chamber of Commerce.  The filing of that litigation has interfered with the Board's plans to implement its employer notice posting rule, issued earlier this year.  That rule -- which requires private-sector employers covered by the NLRA to post a notice that tells employees about their right to unionize, gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions and complaints -- has also been challenged in the Chamber's lawsuit.  The NLRB earlier had postponed implementation of the rule until January 31, 2012.  The judge, however, recently told the parties to the suit that she did not think the Board's January deadline would allow them sufficient time to argue the merits of the rule.

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted.  In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process.  These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant.  If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.

The NLRB announced today that the agency is postponing the deadline for the new employee rights posters from November 14 to January 31 to “allow for further education and outreach.”

We’ll continue to monitor and advise, particularly as to how the various court challenges may affect the agency’s actions on this issue.

Hunton & Williams client Sodexo Inc. announced last week that it has settled its civil RICO lawsuit against the Service Employees International Union, marking the end of the SEIU's contentious two year corporate campaign against the company.  Sodexo had alleged that the union conduct constituted extortion under RICO. Earlier this summer, the U.S. District Court for the Eastern District of Virginia, in which the case was pending, denied the SEIU's motion to dismiss the case, finding that Sodexo had stated viable RICO claims.

Sodexo's racketeering suit is the latest in a series of ...

The focus on social media by the National Labor Relations Board (“NLRB” or the “Board”) continues as evidenced by its recent report issued by Acting General Counsel Lafe Solomon.  The report discusses fourteen social media cases that were decided by the Board after Regional Directors submitted requests for advice to the Board’s Division of Advice.  The cases highlighted by Solomon give some insight to how the NLRB will handle various social media issues in the future.

The NLRB announced today it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act (“NLRA”). A Fact Sheet  is also available. The rule is scheduled to be published in the Federal Register on August 30, 2011. It is effective November 14, 2011.

First introduced in the Employee Free Choice Act as an alternative to card check, the quickie election has been brought back as part of the National Labor Relations Board’s (“NLRB”) rulemaking process.  On June 21, 2011, the NLRB, with Board Member Brian Hayes dissenting, issued a Notice of Proposed Rulemaking suggesting numerous changes to the procedures governing union elections.  These proposed changes are significant and if accepted would both alter the landscape of secret ballot elections and place employers at a severe disadvantage.

The National Labor Relations Board (“NLRB”) handed down an opinion last month, in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 361 NLRB No. 162 (2011), that constitutes a victory for union members and giant inflatable rats everywhere.  Inflatable rats have been used by unions to protest employers’ use of non-union (or “rat”) workers since as early as 1991.  Giant inflatable rats have been the subject of lawsuits in the past, and a previous case has made it all the way to the Supreme Court of New Jersey.  See State v. DeAngelo, 197 N.J. 478 (2009).  The inflatable rat in question was 16 feet tall and 12 feet wide.  It was located 100 feet from the entrance of a hospital, run by a neutral company, whose independent contractor subcontracted work to a company which utilized non-union workers. 

Section 203 of the Labor-Management Reporting and Disclosure Act requires employers to annually report via Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees as to collective bargaining rights, or to obtain certain information about the activities of employees or a labor organization involved in a labor dispute with the employer. The retained consultant must also file a report concerning the agreement or arrangement (Form LM-20). However, one statutory exception in section 203(c) provides that no report need be filed when the consultant gives “advice” to the employer.

In October 2010, the National Labor Relations Board (“NLRB”) raised the eyebrows of employers and observers when its Hartford, Connecticut Regional Office issued an unfair labor practice complaint against an employer after it allegedly terminated an employee for posting unflattering statements about her supervisor on Facebook.  The NLRB and the company settled the complaint in February 2011, on condition that the company revise its rules so they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.  The employer also agreed that it would not discipline or discharge employees for engaging in such discussions.

In a recent case called Southwest Regional Council of Carpenters (New Star General Contractors, Inc.), the National Labor Relations Board upheld a fairly common Union street tactic of calling attention to the Union’s dispute with a so-called “primary” employer by displaying a large banner in front of the worksite of a “secondary” employer who happens to be utilizing workers from the “primary” employer. Typically, the dispute between the Union and the “primary” employer is over the “primary” employer’s failure to use Union workers or pay Union-scale wages. By publicly advertising its dispute with banners in front of the “secondary” employer, the Union hopes to “shame” the “secondary” employer. 

In response to President Obama’s re-nomination of Craig Becker to the National Labor Relations Board, all forty-seven Republicans in the U.S. Senate submitted a letter to Mr. Obama on February 1 urging him to withdraw Becker’s nomination.  Becker’s July 2009 nomination to the Board failed in the Senate in the spring of 2010, but the President gave Becker a controversial recess appointment that allows him to serve from his swearing-in on April 5, 2010 until the end of the Senate’s 2011 session, despite the Senate’s rejection of his nomination.  President Obama’s re-nomination of Becker, if successful, would allow Becker to serve until December 16, 2014.

On January 5, 2011, the White House announced President Obama’s intent to nominate Lafe E. Solomon to be General Counsel for the National Labor Relations Board and Terence F. Flynn to be a Board Member.

The Obama Administration has addressed labor and employment issues aggressively over the past two years.  The Department of Labor, under President Obama’s direction, has articulated its “Plan/Prevent/Protect” agenda and its focus on openness and transparency in labor practices.  As a result of the steps taken by the Obama Administration in 2010, the new Republican-dominated Congress may have to decide a number of regulatory and legislative measures that will directly affect labor and employment law in 2011. The following is a list of proposed regulations and legislation that employers and their attorneys should watch this year:

On December 21, 2010, the NLRB issued a press release and fact sheet announcing its intention to publish in the Federal Register a proposed “rule” requiring virtually all private sector employers to post in the workplace a Notice to employees outlining their rights under the National Labor Relations Act. The proposed poster was published in the Federal Register on December 22, 2010.   Interested parties will have sixty (60) days from December 22nd to respond with comments regarding the proposed rule.

The poster entitled, “EMPLOYEE RIGHTS”, lists seven bullet points ...

Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.

We’ve been talking about the “new” NLRB and its pro-union slant all year, so its latest procedural revisions should not come as a surprise to you. On September 30, 2010,  NLRB Acting General Counsel, Lafe Solomon, announced an initiative to “strengthen and streamline the Agency’s response to charges filed when employees are fired in the midst of a union organizing campaign.”

The Eleventh Circuit recently ruled that an employee had standing to seek an injunction against his employer and a labor union over alleged violations of the Labor Management Relations Act (“LMRA”) in the union organizing context.  In Mulhall v. UNITE HERE Local 355, Hollywood Greyhound Track, Inc., d.b.a. Mardi Gras Gaming, (No. 09-12683, September 10, 2010), the Eleventh Circuit reversed the lower court’s dismissal of the case, overruling its decision that the employee lacked a cognizable injury, and remanded the case for further proceedings.

How would you handle the following situation?  You have recently learned that one of your employees “posted” on Facebook complaining about the company, specifically commenting on work conditions and wages.  Several other employees have made comments on this employee’s Facebook page and a discussion has ensued.  These comments and complaints are damaging to the company’s reputation and portray the company in a negative light. 

Your natural inclination may be to instruct the employee to take these comments down and prohibit him from continuing to use Facebook to discuss work issues.  Yet, unions may be looking for you to do exactly that so they can try to file an unfair labor practice charge with the National Labor Relations Board (“NLRB”).  Employers have the right to protect their reputations and to prevent the possible disclosure of confidential information.  But unions may try to construe the above situation and the employer’s reaction to it as interference with an employee’s right to engage in concerted activity, a violation of Section 8 of the National Labor Relations Act (“NLRA”).  Notably, such an argument by unions could apply to both unionized and non-unionized employers. 

The Washington Times recently published an article by Hunton & Williams attorney Kurt Larkin regarding the impact that the Dodd-Frank Act will have on big labor's ability to infiltrate boardrooms of corporate America. To read the editorial, click here.

Pundits in the labor arena have speculated for months that the Administration’s recent appointment of union-friendly Board candidates like former SEIU Assistant General Counsel Craig Becker could have a significant impact on the state of Board precedent in future cases.  If the Board’s highly anticipated recent decision in United Brotherhood of Carpenters and Joiners of America, 355 NLRB No. 159 (“UBC”), is any indication, the pundits may be right.

In UBC, the full five-member Board -- which split along party lines -- held that a labor union’s use of stationary banners ...

Employers who thought the hotly contested issue of card check recognition had been side-lined along with EFCA should take notice of a recent decision announced by the National Labor Relations Board (the “Board”).  As predicted earlier in light of its new composition, the Board has begun to lay the groundwork to overturn established precedent giving employees the right to demand a secret ballot election in the face of voluntary card-based union recognition.

The NLRB has issued an RFI (Request for Information) to identify firms who can provide the means for employees at businesses across the country to "vote" electronically on whether they want union representation.  The idea would be that, sitting in the comfort of their own home . . . or the union hall, employees can use a computer, telephone or some other electronic means to register their choice on election day.  This method of voting, so the argument goes, avoids the "intimidation" employees may feel when voting in a voting booth by secret ballot at their place of employment.  Not only that, it would save the NLRB money by avoiding the need to send field agents to the companies where elections are scheduled.  No ballot, no voting booth, no assurance of privacy, and no protection from someone looking over the employee's shoulder, or worse, as she votes.  And electronic voting can be ordered administratively by the agency in the dead of night rather than through legislation undertaken in the light of day.

Two significant developments last week affect the functioning of the country's federal agency in charge of overseeing union-management relations. The first is a decision by the US Supreme Court and the second is the resignation of the agency's general counsel effective June 18th.

As a result of political disagreements over nominations to fill vacancies on the National labor Relations Board, the Board operated with only two of its five members during 2008, 2009 and into 2010.  During that time, the two members decided almost 600 cases (though most were not particularly controversial from the standpoint of illuminating policy or setting precedent).  On June 17, the Supreme Court ruled in New Process Steel v. National Labor Relations Board, No. 08-1457, that the two members did not have the authority to decide those cases because they did not constitute a proper quorum under the National Labor Relations Act.  Instead, the Court ruled that at least three sitting Board members were required for the NLRB to act.  The ruling nullifies the decisions made in all 600 cases and effectively remands the cases back to the Board for re-adjudication.

On May 21st, we reported on the newly-announced Department of Labor (“DOL”) proposal to narrow the “advice exception” to the reporting requirements of section 203 of the Labor-Management Reporting and Disclosure Act (“LMRDA”).  In a nutshell, section 203 requires employers to annually report any arrangement with a third-party consultant to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization involved in a labor dispute with the employer.  The “advice exception” of section 203(c) provides that no annual report need be filed when a consultant gives “advice” to the employer.  DOL’s current policy is to construe this exception broadly to exclude arrangements where the consultant has no direct contact with employees, but DOL now views this policy as overbroad and seeks to narrow it through rulemaking, as outlined in its Spring 2010 Regulatory Agenda.

The Secretary of Labor has finalized implementing regulations under Executive Order 13496, which requires federal contractors and subcontractors covered by the National Labor Relations Act (NLRA) to post a new notice advising employees of their rights under the Act.  Note that most employers in the private sector are covered by the NLRA; the Order is not limited to companies with union activity or representation.

The regulations are codified at Title 29, Part 471 of the Code of Federal Regulations.   The Department of Labor (DOL) also provides a helpful fact sheet about the new requirement.

The NLRB's General Counsel, Ron Meisburg, recently announced his anticipated resignation, effective June 20, 2010.  Meisburg's departure now frees President Obama to appoint Meisburg’s successor.  While a number of names as replacement GC have surfaced, no clear front runner has emerged.

The Department of Labor has recently announced a regulatory initiative that would narrow the “advice exception” to the reporting requirements of section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA).  Section 203 requires employers to annually report via Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees as to the collective bargaining rights, or to obtain certain information about the activities of employees or a labor organization involved in a labor dispute with the employer.  The retained consultant must also file a report concerning the agreement or arrangement (Form LM-20).  However, one of the statutory exceptions in section 203(c) provides that no report need be filed when the consultant gives “advice” to the employer.

Andrew Stern’s sudden resignation as International President of the Service Employees International Union (“SEIU”) took the labor world by surprise and sparked debate about his legacy and the future of the nation’s largest and most politically powerful labor union.  The selection of SEIU Executive Vice-President Mary Kay Henry as his successor has sparked an equally intense debate about the direction she is likely to take SEIU in the future.  Many had assumed that Anna Burger, SEIU’s Secretary − Treasurer and Chair of Change to Win − not to mention Stern’s longtime protégé − was all but guaranteed the job.  However, Henry’s candidacy grew support among the members of SEIU’s Executive Council when she promised to “heal rifts” within the union caused by internal debate over Stern and the long-term viability of his organizing philosophy. The SEIU Executive Council’s rejection of Burger seemed to signal a desire at the top of SEIU for a genuine change of direction.  Yet, in the days following her election, Henry has sent mixed signals about her true intentions.

The Wall Street Journal calls him “labor’s biggest weapon.”  His nomination to the National Labor Relations Board prompted Senator John McCain to refer to him as “probably the most controversial nominee that I have seen in a long time.”  When his nomination stalled in the Senate after a heated partisan debate, President Obama was forced to make a rare recess appointment to reserve his position on the Board.

President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

Last week, the AFL-CIO commenced a major new attack on the nation's largest banks and to push for a new "transaction tax" to raise money for a national jobs program.  The labor federation's "Call to Action on Jobs" Campaign, which formally began on March 15th, is expected to target the nation's six largest financial institutions.

National Labor Relations Board (NLRB) Nominee Craig Becker needed 60 Senate votes to overcome the Republican-led filibuster blocking his confirmation, but he only received 52 votes on Tuesday. Two Democrats, Sen. Blanche Lincoln (Ark.) and Ben Nelson (Neb.), went against their party to vote him down in the cloture vote, which failed 52-33.

On Tuesday, February 4th, the United States Senate Health, Education, Labor, and Pensions (“HELP”) Committee called a rare hearing to question Craig Becker, President Barack Obama’s nominee for the National Labor Relations Board (“NLRB”). While Becker was approved by the HELP Committee last year in a 15-8 vote, Arizona Senator John McCain (R.) placed a hold on his nomination, keeping a Senate vote from taking place. Therefore, the White House resubmitted his nomination and the Committee voted on Becker again yesterday, before a confirmation vote in the full Senate.