— Posts About NLRB

NLRB Strikes Blow Against Bans on Class Action Arbitrations

The National Labor Relations Board recently ruled in favor of both union and non-union private sector employees on a significant issue concerning workplace litigation.  At issue were mandatory arbitration agreements signed upon employment that force employees to bring claims one by one in front of an arbitrator and prohibit employees joining as a group to arbitrate their claims.  The Labor Board concluded that such agreements violate employee rights under the NLRA to engage in concerted activity.  This ruling supports workers’ rights to join together to bring legal claims to arbitration collectively.  More coverage can be found here.

Categories: General News, Judicial Decisions Tags: , , , , , , , ,

Recess Appointments Made to NLRB

President Obama this past week appointed three members to the National Labor Relations Board.  They include Sharon Block, who most recently served as Deputy Assistant Secretary for Congressional Affairs with the US Department of Labor; Terence Flynn, who was Chief Counsel to current NLRB Board Member Brian Hayes, and; Richard Griffin, formerly General Counsel for the International Union of Operating Engineers.  More information on the new members of the Board may be found here and here.  The members were sworn in on Monday.  President Obama needed to appoint these members by recess appointment in order to keep the NLRB properly functioning.

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NLRB to Speed up Unionizing Elections

On December 21, The National Labor Relations Board voted 2-1 in favor of new steps to increase the speed of union elections.  The Board hopes to keep election and campaign time to less than 21 days.  Often, there are long delays to unionizing elections because of legal challenges brought by the employer.  The Board wants to require that these challenges be postponed until after the employees have voted for or against the union.  These changes were first proposed in June and the NLRB held public hearings and reviewed thousands of public comments.  The new rules will likely be challenged by employers in court.  More coverage here.

This was the Board’s last major policy decision before it lost one member, which leaves it without a quorum to act.  President Obama has nominated Sharon Block and Richard Griffin to the Board.  Ms. Block is currently deputy assistant secretary of Congressional affairs with the Labor Department.  Mr. Griffin has served on the board of the AFL-CIO Lawyers Coordinating Committee since 1994 and is general counsel to the International Union of Operating Engineers.  Republicans may well block these nominations in an effort to prevent the Board from functioning at all.  More coverage here.

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Machinists’ Union and Boeing Work to Extend Contract

Last, week, the International Association of Machinists and Aerospace Workers (IAMAW) and Boeing reached a tentative agreement which would extend the Union’s contract for four years and, when ratified, will increase wages, maintain and improve traditional pensions and add new jobs.  The Union and Boeing have been in a troubled relationship recently since Boeing decided to build a new plant for its 787 Dreamliner in South Carolina where unions are weak.  The National Labor Relations Board filed a suit claiming that Boeing had decided to build the new plant in South Carolina in illegal retaliation against the Union for striking.  That case now looks like it may be dropped if the new contract is ratified by the Boeing employees.   Additional coverage here.

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Fourth Circuit Affirms Protected Concerted Activity Claim

The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee’s protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee.  The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code.  The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats.  The employee enlisted other employees to help her document dress code violations as well.  The employee was subsequently terminated.  Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property.  Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy.  Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy.  Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy.  The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.

Categories: Judicial Decisions Tags: , , , , , , ,

Advances on Protecting Whistle-blowing and Social Networking of Employees

Two recent positive developments to report.  First, breaking new ground, the National Labor Relations Board (NLRB) has charged a company with illegally firing an employee after she criticized her supervisor on her Facebook page.  The NLRB’s press release is here.  Coverage here.

Under Section 7 of the National Labor Relations Act, all employees — even those not represented by a union — are protected from retaliation when they engage in “protected concerted activity.”  Although social networking is new, the NLRB has taken the commonsense view that employees have the right to jointly criticize their employer through Facebook, just as they would over the water cooler.

Second, the large financial reform law (Dodd-Frank) passed earlier this year includes some expanded provisions that support whistle-blowers in the financial industry.  The SEC has now issued rules further defining this program.  Coverage is here.  Note also that the Dodd-Frank Act contains protections against retaliation toward whistle-blowers.

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Supreme Court Rules on 2-Member Labor Board and Workplace Privacy

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.

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President Appoints Two New Members to NLRB

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.

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Recent Fourth Circuit Labor and Employment Decisions

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.

Read more…

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Fourth Circuit Upholds Labor Arbitration Decision and Two-Member NLRB Decision

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.

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