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.

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.

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.

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.

In the second case, Stone v. Instrumentation Labratory Company, the Court clarified how employees may pursue retaliation claims under the Sarbanes-Oxley Act.  The Sarbanes-Oxley Act provides employees of publicly traded companies with whistleblower protection, prohibiting employers from terminating, or otherwise retaliating against, such employees when they report “potentially unlawful conduct” that has occurred or is in progress.  The unlawful conduct is often securities fraud or other types of fraud, including making misrepresentations to shareholders.  To pursue a retaliation claim, a plaintiff must first file a complaint with the Department of Labor (which is handled by its OSHA office), and if no final decision is issued in 180 days, the plaintiff may file an action in federal district court.  The Court reaffirmed this procedure, and held that the district court improperly failed to hear a properly filed retaliation action.

In the third case, Alton H. Piester, LLC v. NLRB, the Court upheld the NLRB’s determination that the employer had committed unfair labor practices by (1) impliedly threatening to discharge its employees if they continued to engage in protected, concerted activity — objecting as a group to a change in pay policies — and (2) by impliedly threatening to discharge and then actually discharging an employee for continuing to engage in similar protected, concerted activity.  The majority of the Court concluded that the Board’s decision on both unfair labor practices was supported by substantial evidence.

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.