Wyatt Employment Law Report

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NLRB Ratifies Actions of Prior Board Found in Noel Canning to Lack a Quorum Due to Improper Recess Appointments

By Edwin S. Hopson

On August 4, 2014, the National Labor Relations Board announced that on July 18, 2014, it had “unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.” This action was in response to the Supreme Court’s decision in NLRB v. Noel Canning holding that the Members recess-appointed on January 4, 2012 by President Obama were not validly appointed. The current Board was without question validly appointed on August 5, 2013, at which time a quorum was regained.

From January 4, 2012 to August 5, 2013, the NLRB took formal action on numerous matters including the appointment of some Regional Directors and Administrative Law Judges. In addition, there were agency restructurings of regional and headquarters offices. At the time these actions were taken, some parties appearing before the Board took exception to actions taken by some of these persons who they claimed were invalidly appointed. In an effort to eliminate those claims and challenges, the NLRB has taken this action.

In addition, the NLRB expressly authorized the following actions:

■ The selection of Dennis Walsh as Regional Director for Region 4 (Philadelphia);

■ The selection of Margaret Diaz as Regional Director for Region 12 (Tampa);

■ The selection of Mori Rubin as Regional Director for Region 31 (Los Angeles);

■ The selection of Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson as Administrative Law Judges;

■ The restructuring of various Field Offices;

■ The restructuring of Headquarters’ Offices.

On July 30, 2014, the NLRB announced that following the Board’s July 18, 2014 authorization, Regional Directors Walsh, Diaz, and Rubin ratified all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014. These ratifications also included all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases taken by these Regional Directors.

Whether this action by the Board and the several Regional Directors will be effective to eliminate pending challenges remains to be seen.

The July 18, 2014 Minute of Board Action can be viewed here.






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NLRB Announces Contract with FMCS to Provide Mediators for its ADR Program

 By Edwin S. Hopson

On October 23, 2012, the National Labor Relations Board announced that, as part of its efforts to settle cases, it had contracted with the Federal Mediation and Conciliation Service (FMCS) to provide FMCS mediators to the parties who participate in the Board’s alternative dispute resolution (ADR) program.

According to the NLRB’s press release, “[s]ince 2005, the Board’s ADR program has provided parties with the assistance of a mediator to aid them in settling unfair labor practice cases pending before the Board.”  It went on to note that a settlement was reached in 60% of the cases mediated under the NLRB’s ADR program.   There will be no fees or expenses charged for using FMCS mediators in the ADR program.  The NLRB will stay further processing of the case while it is in the program, but generally may not be in the program longer than 30 days, and in no event longer than 60 days, according to the NLRB’s press release.

Up until now, the NLRB has primarily used an Administrative Law Judge, who has not been assigned to hear the case, to serve as mediator.  At this stage, complaint has already issued in the unfair labor practice case but the case has not yet been tried.  The FMCS contract will allow the NLRB to bring new resources to bear in resolving cases.  However, the parties will continue to have the opportunity to use the ADR program director in the NLRB’s Division of Judges as a mediator as well. 

In the initial stages, the FMCS mediator may not have a strong level of knowledge regarding the NLRA and Board law.  However, with training and experience developed over time, FMCS mediators should be able to have a favorable impact on the ADR process.

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NLRB Acting General Counsel Begins Attack On At-Will Policies

By George J. Miller

One of the most common parts of employers’ employee handbooks is a page which the employee signs acknowledging receipt of the handbook. These pages often contain statements to the effect that the employee acknowledges or agrees that the handbook is not a contract of employment and that the employment relationship is “at-will.” However, recent developments at the National Labor Relations Board call into question the legality of such provisions under the National Labor Relations Act (“Act”), at least if they are not worded very carefully.

In a case decided by an administrative law judge in February of this year involving a major blood bank, the company’s “Agreement and Acknowledgement Receipt of Employee Handbook” form said in part, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”  While the judge stopped short of ruling that this language expressly prohibited activity protected by Section 7 of the Act, he nevertheless ruled that it violated the Act because employees could reasonably construe it to prohibit Section 7 activity. The judge agreed with the Counsel for the Acting General Counsel of the NLRB who prosecuted the case, that:

“. . . the signing of the acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”

As a remedy, the judge ordered the employer to cease and desist from maintaining or enforcing the acknowledgement form containing the language in question.

Decisions of NLRB administrative law judges do not have the force of law unless and until adopted by the NLRB and enforced by a federal court of appeals. According to the case information on the NLRB’s website, the parties in this case settled after the judge’s decision. So the judge’s decision in this case will not become law. However, it reflects the position of the office of the Acting General Counsel of the NLRB, which prosecuted the case and prosecutes all unfair labor practice cases.  It has been reported that more recently the Acting General Counsel issued a similar complaint against Hyatt Hotels, and that case was quickly settled. Thus, it appears that in keeping with the now well known attack on employer’s social media policies, the Acting General Counsel will also be scrutinizing at-will policies. In order to avoid litigation at the NLRB, employers whose employee handbooks or other policies or forms (e.g., application forms) contain at-will provisions should consult with their legal counsel to determine whether or not those provisions can or should be modified to avoid an allegation that they violate the Act.

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NLRB’s Case Against Boeing Is Over

By Edwin S. Hopson

On December 9, 2011, NLRB Acting General Counsel Lafe Solomon in a press release announced that the withdrawal of a charge by the Machinists union against the Boeing Co. over Boeing’s planned opening of a plant in South Carolina to build its large new commercial airliner, has been approved bringing the matter to an end.  The Machinist Union had requested withdrawal of its unfair labor practice charge.  This came after Boeing and the union agreed upon a new four-year collective bargaining agreement earlier this week. Based on the union’s request, the NLRB administrative law judge presiding over the case dismissed the complaint and remanded the case to the NLRB’s Seattle regional office.  NLRB Regional Director Richard Ahearn then approved the union’s written request to withdraw the charge on December 9, 2011, and the case is now closed.

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NLRB Administrative Law Judge Finds Discharges Over Facebook Postings Illegal

By Edwin S. Hopson

In the first ruling regarding discipline of employees for Facebook postings, a National Labor Relations Board Administrative Law Judge in Hispanics United of  Buffalo, Inc., JD 55-11 issued September 2, 2011, found this non-profit organization unlawfully discharged five of its employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues. After hearing a co-worker criticize other employees for allegedly not doing enough to assist the non-profit organization’s clients, the employee posted those same allegations on her Facebook page from her personal computer. That initial post prompted responses from other employees who defended their job performance and criticized working conditions at the non-profit organization. The employer brought the five employees in and discharged them.  It claimed that the discharges were due to the nature and tone of the postings which it characterized as bullying and harassment. 

The Administrative Law Judge, however, held that the remarks posted by the five employees was protected under Section 7 of the National Labor Relations Act (“Act”) and that, therefore, the discharges were violations of Section 8(a)(1) of the Act.  He ordered the five employees to be reinstated with backpay

The non-profit organization has a right of appeal to the Board in Washington,D.C.