NLRB Increases Scrutiny of Non-Union Employer Policies

By George J. Miller

In recent years, perhaps due to the steep decline in union organizing activity that traditionally created much of the work at the National Labor Relations Board, the Board, or more precisely the General Counsel of the Board, has been focusing attention on non-union employers’ policies that could violate the National Labor Relations Act (NLRA).  An example that has garnered a lot of attention is company social media policies. 

Recently, the current General Counsel of the NLRB put out a 30-page memo discussing the application of the NLRA to the following kinds of employee handbook policies:

• Confidentiality
• Conflicts of interest
• Speech and other conduct regarding the company and company supervisors
• Speech and other conduct regarding fellow employees
• Communications about the employer with third parties outside the company
• Restrictions on the use of company logos, copyrights and trademarks
• Restrictions on the use of cameras and recording devices at work
• Restrictions on leaving work during the workday 

The memo discusses actual cases in which the General Counsel’s office reviewed these policies and found them either lawful or unlawful under the NLRA.  Examples of both lawful and unlawful policies are given.  This is very useful for employers, attorneys and consultants in drafting policies that will pass muster at the NLRB.  The memo also discusses the settlement of a case involving Wendy’s International’s employee handbook.  It discusses various Wendy’s policies that were allegedly unlawful and how they were modified by Wendy’s and approved by the General Counsel’s office in the settlement.  Click here to access the page on the NLRB website where the memo can be found.

NLRB Asserts McDonald’s Is a “Joint Employer” of Employees of Its Franchisees

By Amanda Warford Edge

The NLRB’s general counsel announced on December 19, 2014 that he will proceed with thirteen (13) cases involving seventy-eight (78) charges against McDonald’s USA, LLC and its franchisees.  The alleged violations took place against McDonald’s workers in several cities throughout the country, including: Detroit, St. Louis, Manhattan, Philadelphia, Atlanta, Chicago, Kansas City, New Orleans, Los Angeles, Phoenix, San Francisco, Minneapolis and Indianapolis.  McDonald’s and its franchisees allegedly retaliated illegally against employees who participated in union-related activities by reducing their hours, terminating them and/or subjecting them to other disciplinary actions.

By filing the cases against McDonald’s and its franchisees, the general counsel is asserting that McDonald’s can be liable as a “joint employer,” despite the fact that many of the alleged labor violations were committed by independent franchise owners.  This has sweeping industry implications, striking at the very heart of the franchise system.  Unions, of course, see the cases as a win, claiming that

Griffin Confirmed by the Senate to be NLRB General Counsel

By Edwin S. Hopson

After a successful cloture vote on October 29, 2013, the Senate conducted a roll call vote on the nomination of Richard Griffin, Jr. to be General Counsel at the National Labor Relations Board.  He was confirmed by a vote of 55 to 44.  Once sworn in, Griffin will take over from Lafe Solomon who has been Acting General Counsel since June 2010. Griffin was previously general counsel of a major labor union, and one of the Board Members whose recess appointment was challenged in, among other cases, Noel Canning v. NLRB, which is pending in the Supreme Court.  Griffin’s appointment to the NLRB was withdrawn by the President in a deal this summer to install a fully confirmed Board.

Griffin Nomination to be NLRB General Counsel Moves Forward in Senate

By Edwin S. Hopson

On October 29, 2013, the Senate, in a vote of 62 to 37, invoked cloture on the nomination of Richard Griffin, Jr., to be General Counsel of the National Labor Relations Board.  This vote clears the way for his confirmation since clearly a majority of Senators favor his appointment.

Griffin Approved by HELP Committee to be NLRB General Counsel

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee hold an executive session at which it approved by a vote of 13 to 9 the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It also unanimously approved the nomination of Scott Dahl to be Inspector General of the Department of Labor.

The ranking member of the HELP Committee, Lamar Alexander (R-TN), stated in a press release that he expected Griffin to be confirmed by the full senate in an up or down vote.   Alexander also indicated he was looking for a long-term fix to take partisanship out of the NLRB.

Richard Griffin’s Nomination To Be NLRB General Counsel Will Be Considered by HELP Committee

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee will hold an executive session at which it will discuss the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It will also take up the nominations of Chai Feldblum to serve as a Commissioner of the Equal Employment Opportunity Commission and Scott Dahl to be Inspector General of the Department of Labor.

The nomination of Griffin to be NLRB General Counsel may be controversial.  Griffin was one of the President’s recess appointments to the NLRB in January 2012, which were held invalid by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB, now pending before the U.S. Supreme Court.  A number of Republican Senators opposed Griffin’s nomination to be a confirmed NLRB Member.  As part of a deal to avoid the “nuclear option” regarding the fillibuster, Griffin’s nomination to be a Board Member was withdrawn by the President in July 2013.  It is unclear whether Griffin’s later nomination to be General Counsel was part of the July 2013 deal.

Supreme Court Issues Decision Invalidating Two-Member NLRB Decisions

By Edwin S. Hopson

On June 17, 2010, in New Process Steel, LP v. NLRB, 560 U.S. ____ (2010), the U.S. Supreme Court, in a 5 to 4 decision, ruled that the National Labor Relations Board could not operate as a two member Board due to vacancies which reduced its number from five members down to two.  The majority opinion by Justice Stevens was supported by Chief Justice Roberts, and Justices Scalia, Thomas and Alito.  Justice Kennedy wrote a dissent which was joined in by Justices Ginsberg, Breyer and Sotomayor.

 Toward the end of December, 2007, when it appeared that the Board would be reduced from four members to two due to vacancies occasioned by expiring recess appointments, the four members delegated their authority to a three member panel consisting of Members Liebman, Schaumber and Kirsanow, although Kirsanow’s recess appointment was about to expire.  It was believed that although Kirsanow was about to depart, that the remaining two members were a quorum of the three member panel to which the delegation had been made.  This was based primarily on an opinion from the Office of Legal Counsel of the U.S. Department of Justice, and limited prior practice.  The four member Board also delegated the Board’s authority to authorize certain litigation to the Board’s General Counsel.  That delegation was not under review by the Supreme Court in the instant case.

 Over the next 27 months, the Board operated with only two members and issued close to 600 cases.  The validity of those decisions appears now to be nonexistent.

 The majority construed Section 3(b) of the National Labor Relations Act to permit two member Board decisions only when the three member panel was reduced to two based on disqualification rather than vacancy.

 How the NLRB will deal with the almost 600 cases remains to be seen.  It is also possible that the Board’s 2007 delegation to the General Counsel of certain authority to litigate cases under the NLRA may now be challenged.