Two labor and employment decisions were released by the U.S. Supreme Court this past week.  In the first, City of Ontario v. Quon, the Court unanimously held (with Scalia concurring separately) that the government employer’s search of employee text messages was reasonable under the Fourth Amendment.  Unlike private employers, public employers are constrained (somewhat) by the Fourth Amendment’s restrictions on searches and seizures in the workplace.  In this case, the city got a private company to release the full text messages of police officers because of their overuse of the texting plan.  Several messages were inappropriate and resulted in employee discipline.  Based on these particular facts, the Court found the search lawful, though it declined to articulate broader standards for public employer searches, especially of new electronic media.  More analysis found here and here.

In the second case, New Process Steel v. NLRB, the Court resolved the circuit split regarding whether the National Labor Relations Board could lawfully act with a two-member quorum because the three vacancies on the board had gone unfilled for so long.  A 5-4 majority (Stevens surprisingly joining 4 conservatives) rejected the Board’s argument, and held that the NLRA required 3 members to act.  The hundreds of decisions issued by the two-member board will probably have to be re-reviewed, though one hopes this could be expedited now that two of the vacancies have been filled by President Obama.  Board decisions can take a long time even extra without this delay, often to the detriment of workers and unions seeking to organize and bargain.  More analysis is here and here.

Categories: Judicial Decisions Tags: Case Commentary, Fourth Amendment, Labor and Employment, Labor Board, NLRA, NLRB, Text Messages, Unions, US Supreme Court, Workplace Privacy

Yesterday, President Obama announced that he was bypassing the Senate and installing 15 appointees, including Craig Becker and Mark Pearce to the National Labor Relations Board.  As the NLRB has been working with only two of its five members, the installation of Becker and Pearce is certainly welcome news.  President Obama had nominated these highly qualified and well-respected lawyers last July, but Senate Republicans blocked their appointment process until now.

Categories: Legislative Action Tags: Craig Becker, Labor and Employment, Mark Pearce, NLRB, President Obama, Unions

The Fourth Circuit has published opinions in three labor and employment cases in recent weeks.  The first case, Sepulveda v. Allen Family Foods, Inc., concerned a Fair Labor Standards Act (FLSA) collective action that was brought on behalf of a class of current and former employees of a chicken processing plant.  The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear before and after their shifts.  There is a specific exception in FLSA for cases regarding compensable time for “changing clothes” when the employees are represented by a union that has negotiated a collective bargaining unit.  The Court held that putting on and taking off protecting gear was “changing clothes,” so the exception applied because these plaintiffs had a union, and so judgment was rightly granted to the employer.

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Categories: Judicial Decisions Tags: Case Commentary, Collective Action, Concerted Activity, FLSA, Fourth Circuit, Labor and Employment, NLRB, Retaliation, Sarbanes-Oxley Act, Union, Wage and Hour

The Fourth Circuit has recently published two labor law opinions, the first concerning whether an arbitrator exceeding his authority in resolving a grievance, and the second concerning whether to uphold a decision of the two-member National Labor Relations Board.

In PPG Industries v. ICWUC/UCFW, the union had filed a grievance because the company had failed to pay bonuses as set forth in the Bonus Plan to workers who had gone on strike.  At issue was whether the term “actively employed” in the Bonus Plan encompassed striking workers.  The arbitrator found that it did.  Courts must uphold the decisions of labor arbitrators unless they have exceeded their authority.  As the arbitrator here reasonably interpreted the Bonus Plan, his decision was upheld by the court.

In Naricott Industries v. NLRB, the Fourth Circuit considered the propriety of the two-member Board.  Because replacements for three of the NLRB’s board members have not been approved by Congress for quite some time, the Board has been operating with a two-member quorum.  As long as those two members can agree, the Board has been issuing decisions.  Whether the two-member board is actually authorized to act under the NLRA has been litigated in several circuits.  Two circuits have ruled that it is proper, while the DC Circuit has ruled that it is not.  The Fourth Circuit joined the majority, following the interpretation espoused by the Board as well as DOJ.  In any event, the Supreme Court will soon make a final decision on this issue.  In the remainder of the opinion, the court upheld the Board’s conclusion that the company had committed unfair labor practices by actively assisting an effort to decertify the union, and its order requiring the company to bargain with the union.

Categories: Judicial Decisions Tags: Arbitration, Case Commentary, Fourth Circuit, ICWUC, Labor and Employment, NLRA, NLRB, UFCW, Unions, US Supreme Court

As part of the Committee on Practice and Procedure under the NLRA (Southern Region (Region VIII) of the ABA’s Labor and Employment Section), Mike Okun helped organize the annual discussion between the labor bar and the NLRB Region 11’s Director, attorneys, and staff.   At today’s meeting at the NLRB office in Winston-Salem, we had the good fortune to be joined by John E. Higgins, Jr, currently the agency’s Deputy General Counsel, who filled us in on developments at the national level, including the NLRB’s work with only two board members and the potential effects of EFCA.

Categories: News of the Firm Tags: ABA, EFCA, Labor and Employment, Michael Okun, NLRB, Union