national labor relations board

The U.S. Supreme Court, in a 9-0 decision (with a heated split on the reasoning), ruled that the recess appointments to the NLRB made by President Obama during a three-day recess were invalid.

You can download the decision here.

Much of the early instant analysis has focused on the recess appointment power itself. But for those in labor & employment law, the decision appears to have a much greater impact.

Because by invaliding the recess appointments, the court also affirmed the lower court’s ruling that a decision made by the NLRB composed of the recess appointments was void.

Thus, that suggests that dozens (or by some measures, hundreds) of controversial decisions by the NLRB made with these recess appointments are likely invalid as well.

Of course, the U.S. Supreme Court’s decision doesn’t explicitly say that, but that appears to be the logical result of the court’s ruling.

But before you throw out everything, the decision may have a limited impact in one respect: The NLRB has had a full slate of board members since July 2013.  The propriety of those decisions is not in doubt.  The slate is decidedly more union-friendly so while the court decision throws out a bunch of cases, it creates more of a logistical mess than anything else.

 

Let’s try something a little new today: I’ll give you some facts and see if you can pick the result that a court or agency found. (Hat tip to Overlawyered for highlighting some of these issues.)  I’ll give you the lesson learned from these cases at the end.

Used Car Salesman Loses Temper

1.  Nick is hired in late August 2008 as a used car salesman (really).  On the first day on the job, Nick worked in a tent sale and inquired about the bathroom facilities.  The manager responded that it was in the store.  The next week, when he asked if he could use the bathroom during tent sales, the manager responded “you’re always on break buddy … you just wait for customers all day”.  He told Nick that he could leave if he did not like the employer’s policies.  During the next tent sale, he asked other salespeople about the compensation policy. He also raised the issue of bathroom breaks as well.

At another tent sale (apparently, tent sales are very popular), Nick asked his manager about the commissions for a vehicle and thought the employer was stealing money from him in calculating his commissions.  He then went to the state’s wage & hour agency to obtain more information about commission-based payments.

By October 2008, his manager met with Nick in private office saying that he had no intention of firing Nick but that he was “talking a lot of negative stuff” and asking too many questions.  The manager also said that if Nick did not trust the employer, he didn’t need to work there.  Nick then lost his temper calling the manager a “f–ing mother f–ing”, a “f—ing crook” and an “a–hole.”  Nick also told the manager he was “stupid” and stood up, pushed his chair aside and told the manager that if he was fired, the manager would regret it.

Nick is then fired and brings a claim against his employer.

Will Nick win his claim?

a) No, yelling at his boss is “obscene and denigrating” and thus grounds to fire the employee, even if he did engage in some “protected” activity.

b) No, while he made threats against his boss, they were empty words and he did not engage in “protected” actvity anyways because mere discussions regarding compensation are not covered.

c) Yes, because Nick’s outburst was not menacing, physically aggressive or belligerent and he engaged in “protected” activity.

d) Yes, because the right to use a bathroom is protected under state law and Nick was right to be upset that his use was restricted.

Continue Reading You Be The “Judge”: Is Swearing at Work Protected by Federal Law?

Readers of a certain vintage, will remember Gilda Radner’s character Emily Litella who often said “Never Mind”.  (If you’ve never heard of Gilda Ratner or this, then I’ll pause while you watch this classic video.)  Readers of a later vintage will think of Nirvana’s “Nevermind”. If you just want the dictionary definition, here it is.

My work colleague, Jarad Lucan (vintage: timeless), has an informative post today updating us the status of a certain notice being advanced by the National Labor Relations Board and why “Never Mind” comes to mind.

Despite twice requesting extensions of time within which to file petitions for a writ of certiorari with the United States Supreme Court, the NLRB officially announced this week that it will not seek review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule.

That rule would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act.

As many of you may recall, back in May of 2013, the D.C. Court of Appeals, in National Association of Manufacturers v. NLRB (which Dan discussed here), struck down the notice posting rule on the grounds that it violated an employer’s right to speak (or more accurately, right to remain silent) as protected by Section 8(c) of the NLRA.

One month later, the Fourth Circuit Court of Appeals in Chamber of Commerce of the United States v. NLRB likewise struck down the notice posting rule on the grounds that the NLRB was not empowered to promulgate such a rule.

What does this all mean for private employers in CT?

Well, at the 30,000 foot level, both Court of Appeals decisions now set binding precedent that may prove (it is far too early to tell) to restrain what has been viewed as the NLRB’s attempts to expand its powers, particularly in the nonunion context.

At the ground level, employers can stop asking “when do we need to post this thing?” You don’t need to.  A big “Never Mind”. 

It should be noted, that while the NLRB has decided not to seek Supreme Court review, in a recent press release, the NLRB stated that it will “continue its national outreach program to educate the American public about the statute.”

As part of that program, the NLRB has decided to post the same message that was to be printed on the notice on its website here. Some of you may find it interesting that the NLRB has taken it upon itself to translate that message into 26 different languages and promises to provide additional translations as they become available.

Of course, nothing prevents an employer from putting up such a poster; as the NLRB suggests on its website now, “Important note: Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act. However, employers are free to voluntarily post the notice, if they wish.”  But employers who thought they needed to add this one to their poster arsenal can put those worries aside for now.

 

Last week the Connecticut Bar Association’s Labor & Employment Law Committee held an informational breakfast with the NLRB to discuss the NLRB’s proposal to make Hartford (Region 34), a subregion of the Boston office (Region 1). 

Nick Zaino, the CBA Committee chair, forwarded these highlights as to why the consolidation is very likely going to become reality:

  • The overall NLRB caseload and the number of NLRB employees is down by about 50% from the 1970s
  • A “normal size” region generally process between 700 and 1000 cases annually
  • There are a number of regions–approximately 10–that are considered small regions, including Hartford. Hartford currently processes around 450-500 cases
  • The NLRB has been evaluating the possibility of making smaller regions subregions as vacancies occur at the Regional Director level
  • The NLRB looked at consolidating the Boston and Hartford regions when the Boston Regional Director, Rosemary Pye, announced that she would retire
  • Under the proposal, Jonathan Kreisberg would become the Regional Director of the combined Boston and Hartford regions with his main office in Boston
  • There are no planned reductions in personnel in the Hartford NLRB office, although the Boston and Hartford offices could look to consolidate positions as vacancies occur through attrition
  • John Cotter will be the officer in charge of the Hartford office, but there will be no change to his job duties
  • There should not be any significant changes to the investigation or case handling process
  • The consolidation of the Boston and Hartford offices would not become effective until notice is published in the Federal Register
  • The anticipated date for the consolidation is October 1, 2012.

 

Last week, employment blogs and news outlets were all abuzz about a new page by the National Labor Relations Board on its website about “protected concerted activities”.

I’ve been trying to figure out whether or what to write about on it.  (If you’re concerned about the new webpage, then first go to the Delaware Employment Law Blog for Molly DiBianca’s even-handed take on it and then come back here.) 

After all, the NLRB’s expanded definition of “protected concerted activities” has been playing out in the social media sphere for over two years. 

(Even back in 2007, I was noting that the federal labor laws can apply to non-union employers.)

But what some of the posts seem to have in common is an element of surprise that the government (yes, the government) is actually using 21st century technology to advance its mission. It is, to some, SHOCKING that the government would do so.   But I’m not sure why that is.  Is it because the government has been so far behind technology that it’s remarkable when they play catch up?

But here’s the question people should be asking: Is the NLRB using technology effectively?  To that question, the answer seems to be “not yet.”

On the web-ranking site Alexa, the NLRB ranks just 538,775 among websites in popularity.  In contrast, the legal blog Overlawyered.com — which routinely challenges the NLRB — ranks 378972.

Moreover, for the NLRB, just 14% of its traffic comes from search engines and of that traffic, the majority of people are looking for things like “nlrb” or “nlrb posters” or “national labor relations board”.   I’d hazard a guess that the majority of the other traffic comes from attorneys using the system for filings, research,and the like.

By these measures, the NLRB is doing a lot of the proverbial spitting in the wind.    

So, yes, the NLRB has a new page that again makes it clear that the agency is trying to expand its reach to non-union employers.  But as technology marches, it’s not so surprising anymore that the government would use technology too.  The “protected concerted activities” page is just the latest example of how agencies can convey information. 

For employers, I’d be less concerned about the webpage and more concerned about what your employees are thinking about your company. 

(And if you’re still playing catchup on “text message” speak from the title, here’s the 411 on all the phrases.) 

The Hartford Office of the National Labor Relations Board has a message for employers: There are new posting requirements coming and nearly all employers — not just those who are unionized — need to be aware of them.

Why? Because they are effective in just six weeks: January 31, 2012.

Here are some highlights for employers in Connecticut.

Who’s Covered? If you’re subject to the jurisdiction of the NLRB in general, you’re covered.  The NLRB describes it as follows: “As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.”  If you’re not sure, be sure to check out the specific rules.

What’s Required? Two things.

First, a notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.

Second, employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there.  You can download the notice directly from the NLRB website.  (As an added bonus, the NLRB has also published the poster in 27 other languages as well, which may be required if 20 percent of your workforce speaks a language other than English.)

What Happens If You Don’t Put Up the Notice? The NLRB tries to suggest that employers should post the notice but concedes that it probably won’t know about many of those instances.  Nevertheless, there may be real world consequences for failure to post the notice:

The NLRB does not audit workplaces or initiate enforcement actions on its own, nor does it have the ability to assess fines or penalties.

A failure to post the Notice would need to be brought to the Board’s attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

With all the other requirements for employers, it’s quite possible that this one is getting overlooked. Consider yourself warned.  And if you want answers to more frequently asked questions, you can access them here.

And for the latest newsletter from the Hartford Region, you can download the newsletter here.

 

Last week, while I was out on vacation, the U.S. Chamber of Commerce released an interesting report analyzing all of the NLRB’s actions in cases involving social media.  You can read the report here.

The report confirms something that I’ve commented on before — that many of the cases are (or were handled) at the preliminary stages and there hasn’t been much solid for employers to go on.

The survey:

indicates that the NLRB has reviewed more than 129 cases involving social media in some way. While most of these cases are at the very initial stage, and may not be meritorious at all, some are more advanced. At least two Board decisions have social media components, as do another two decisions by administrative law judges. There are at least seven settlement agreements involving social media cases and the Board’s General Counsel has issued complaints in an additional four cases. The General Counsel has also issued ten memoranda involving social media, eight of which are opinions from the Division of Advice.

The most common issue? Overbroad policies, an item I noted back in April.

Overall, the report is worth a read, if to just have a firmer understanding of the positions that the NLRB is (or is not) taking in these cases.

(H/T Labor Relations Today.)

Over the weekend, President Obama exercised his right to make recess appointments to various positions, including two posts to the National Labor Relations Board. As you may have heard, the Board has been operating (if you can call it that) for two years with just two out of the five members. 

There have been a lot of pixels used this week trying to explain why these recess appointments are horrible for business and result in the end of the world as we know it.  Frankly, it’s a bit overkill.

That’s not to say that employers shouldn’t expect the NLRB to issue more decisions that are "pro-union" or "employee-friendly" (as those loaded terms are used) and reverse some cases or rules that were issued under the Bush Administration. Employers SHOULD expect those decisions to come now.

But those types of reversals happen virtually every time a new administration changes from one party to another.  It was completely unrealistic to have thought otherwise. (Mark Toth summarizes some of the areas that we might see a reversal on.

Yet, to look at the headlines like the one from Point of Law "Get Ready for Radical Interpretations of Labor Law" and you might think that this is really unusual.  (For a wrapup of other posts, the Ohio Employer’s Law Blog has done a summary here.) 

I think John Phillips at The Word on Employment Law got it right when he titled his post "Becker Hysteria & Union Avoidance":

Everyone expected this administration to be pro-labor and to have a pro-labor NLRB. It seems to me, therefore, that all the hand-wringing over Becker is a bit overdone. I represent employers. I believe employer-employee relations are handled better without a union. I also believe, however, that when an employer ends up with a union, it’s deserved 99% of the time. An employer will have much more to do with whether a labor union gets its foot in the door by the way employees are treated than by anything Craig Becker does.

Indeed, in some ways the appointments will be "good" for business in the sense that it will bring back some certainty in areas of labor law. For the last several years, employers have been in limbo not knowing if, for example, the Employee Free Choice Act might come to pass.  With new rules and decisions from the NLRB, employers might get a path towards compliance and knowing what the limits of the rules are.

Employers relish stability. If you don’t think so, ask a HR representative how much fun they’ve been having with the COBRA subsidy rules.

Yes, employers will need to do a bit more planning and continue to educate supervisors and managers about various elements of labor law but that was expected with the Obama Administration. At least now, employers can stop living in the theoretical and start working with the actual. 

The appointments are here for the foreseeable future. The time for hyperbole is over; the time for action steps by employers has just begun.