A Second Court of Appeals Invalidates NLRB’s Notice Posting Rule

By Edwin S., Hopson

On June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit in South Carolina Chamber of Commerce v. NLRB,  No. 12-1757 (4^th Cir. 2013) became the second federal Court of Appeals to reject the NLRB’s notice posting rule.  On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit had also invalidated the NLRB’s notice posting rule in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013).

The Fourth Circuit Court of Appeals stated, in part:

“We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.”

Supreme Court Affirms Arbitrator’s Holding That Contract Permitted Class Relief

The U.S. Supreme Court on June 10, 2013, issued its decision in Oxford Health Plans v. Sutter, 569 U.S. ___, No. 12-135 (2013), holding unanimously that once an arbitrator decides that a contract permits a class arbitration proceeding, the parties are bound by that decision under the Federal Arbitration Act’s very narrow scope of judicial review. In this commercial arbitration case involving a healthcare provider’s claim against a medical plan, Justice Kagan, speaking for the Court, stated, in part:

“Because the parties ‘bargained for the arbitrator’s construction of their agreement,’ an arbitral decision ’even arguably construing or applying the contract’ must stand, regardless of a court’s view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 599 (1960); Paperworkers v. Misco, Inc., 484 U. S. 29, 38 (1987)…. Only if ‘the arbitrator act[s] outside the scope of his contractually delegated authority’—issuing an award that ‘simply reflect[s] [his] own notions of [economic] justice’ rather than ‘draw[ing] its essence from the contract’—may a court overturn his determination. Eastern Associated Coal, 531 U. S., at 62 (quoting Misco, 484 U. S., at 38). So the sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.”

Significantly, the cases relied upon by the Court in this commercial arbitration case were prior labor and employment law decisions.

NLRB and Socal Media

By Erin Frankrone*

It may be illegal to fire employees who complain about supervisors or working conditions on Facebook and other social media sites, as such complaints probably constitute protected concerted activity.  

On April 19, 2013, the NLRB decided Design Tech. Group, 359 NLRB No. 96 (2013), and found that employees’ complaints and discussions on Facebook were a continuation of direct complaints to the employer, and a discussion of the terms and conditions of employment.  Therefore, the Board ruled they were protected concerted activity for their mutual aid and protection under Section 7 of the Act.

The company had contended in defense that it had been entrapped by the employees.  However, companies are unlikely to prevail on an entrapment defense in these situations, even if the employees appear to desire their own termination.  The NLRB noted that employees’ selfish motives do not deprive them of their rights to engage in protected activities.  The key tension in this area is whether employees’ complaints/discussions through social media can fairly constitute the classic concerted activity given the global dissemination of their remarks.

*Erin Frankrone is a Summer Associate at Wyatt, Tarrant & Combs, LLP.

President Obama Nominates Lafe Solomon to be NLRB General Counsel

By Edwin S. Hopson

On May 23, 2013, the Whitehouse announced that the President had again sent the nomination of Lafe Solomon, Acting General Counsel of the National Labor Relations Board, to the Senate, seeking confirmation to a four year term as NLRB General Counsel.  Mr. Solomon was first nominated for the job on January 5, 2011, but his nomination never came up for a vote.  It can be expected that Mr. Solomon’s nomination will receive significant opposition from Republican Senators over a number of issues including his decision to prosecute a complaint against Boeing over its decision to open a manufacturing plant in South Carolina rather than expand its plant in Puget Sound, Washington, where it had experienced labor problems and work stoppages in the past.  Mr. Solomon has been Acting General Counsel at the NLRB since June 21, 2010, and began his career at the NLRB in 1972 as a field examiner.

Senate Committee Approves President’s Nominations to the NLRB

By Edwin S. Hopson

On May 22, 2013, the Senate Committee on Health, Education, Labor & Pensions voted to approve the nominations of Mark Pearce, Richard Griffin, Sharon Block, Harry Johnson, and Phillip Miscimarra to be Members of the National Labor Relations Board.  The committee vote for Johnson and Misimarra, both Republicans, was 22 to 0 in favor.  The vote for Pearce, the current Chairman of the Board, whose term expires in August, 2013, was 18 to 4 in favor.  The votes for Griffin and Block, both of whom are Democrats and currently serving as Board Members, were 13 to 9 in favor.  Several Republican Senators voiced opposition to Griffin and Block based on the fact that their recess appointments were held to be invalid by the D.C. Circuit Court of Appeals in the Noel Canning v. NLRB case, and they have continued to serve on the Board.