Wyatt Employment Law Report


1 Comment

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.

http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3302/7-18-14.pdf

 

 

 

 


1 Comment

President Nominates Sharon Block to be a Member of the NLRB

By Edwin S. Hopson

On July 14, 2014, the White House announced that President Obama was sending to the Senate the nomination of Democrat Sharon Block, currently working as an attorney at the U.S. Department of Labor, to be a Member of the National Labor Relations Board for the term of five years expiring December 16, 2019, replacing Democrat Nancy Jean Schiffer whose term expires in mid-December, 2014.

Block was previously recess-appointed to the NLRB by the President in January 2012. Block and two other recess appointees (including Richard Griffin) were found to have been invalidly appointed in the Noel Canning v. NLRB case by the Supreme Court last month.

In mid 2013, the President nominated new members to the NLRB who were confirmed, and Block and Griffin resigned from the Board. Griffin was later nominated and confirmed as General Counsel of the Board.

This action may forestall a deadlock on the Board should the Republicans win control of the Senate in November 2014, since, if Schiffer is not replaced, that would leave a 2 – 2 split at the Board of Republicans and Democrats.  Without a majority, the Democrats would be unable to decide important issues in cases or issue new regulations impacting labor-managment relations based on a pro-union agenda.


Leave a comment

Supreme Court Allows Certain Public Employees to Refuse to Pay Union Dues or Fees

By George J. Miller

Today, in a 5-4 decision, the U.S. Supreme Court held in Harris v Quinn, 573 U.S. ___ (2014) that it is a violation of the First Amendment for a group of home health care providers (personal assistants or PAs) working in the State of Illinois’ Medicaid program to be required to pay an “agency fee” to a union (the Service Employees International Union Healthcare Illinois and Indiana (SEIU)) which represents them for purposes of collective bargaining, but which they do not want to join or support. To hold otherwise, according to the majority opinion, “would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” (Emphasis added). The Court held that the legislative goals of labor peace and the welfare of the PAs advocated by the State of Illinois and the SEIU were not proven to be accomplished by the challenged law and were not compelling enough to overcome this bedrock principle.

An important factor in the Court’s decision is that thePAs are not “full-fledged public employees.” Under Illinois law, the homecare recipients (designated “customers”) and the State both play some role in the employment relationship with the PAs. Customers control most aspects of the employment relationship, including the hiring, firing, training, supervising, and disciplining of PAs; they also define the PAs duties by proposing a “Service Plan.” Other than compensating PAs, the State’s involvement in employment matters is minimal. The State’s employer status was created by execu¬tive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illinois’ Public Labor Relations Act (PLRA). The Illinois legislature emphasized that PAs are not state employees for any other purpose, “including but not limited to, purposes of vicarious liability in tort and purposes of statutory retirement or health insurance benefits.” Pursuant to this scheme, the SEIU was designated the exclusive union representative for PAs in the State’s Medicaid Rehabilitation Program. The SEIU then entered into collective-bargaining agreements with the State that contained an agency-fee provision.

In basing its ruling on the employment status of the PAs, the Court did not overrule—though it discussed the limitations of—existing precedent (Abood v. Detroit Board of Education, 431 U.S. 209 (1977)) that permits public sector employers and labor unions in states where public sector collective bargaining is permitted to enter into collective bargaining agreements that require public employees covered by the agreements to pay the union an agency fee, even if they do not wish to join or support the union. The Court left this precedent in place by distinguishing between the status of the PAs in this case and full-fledged public employees. Some commentators feared that the Court might overrule Abood and outlaw this practice altogether, which it was feared would be a near fatal blow to public sector labor unions. Consequently, it appears that the Court’s opinion may be limited to the PAs in this case, or perhaps to home health workers and other similarly situated employees in other states that have a system like Illinois’. The practice of requiring payment of agency fees to labor unions by public sector employees they represent appears to have survived.


Leave a comment

Supreme Court in Noel Canning Invalidates NLRB Recess Appointments

By Edwin S. Hopson

On June 26, 2014, the U.S. Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), held in a unanimous decision that President Obama’s purported recess appointment of three members (Richard Griffin, Sharon Block and Terence Flynn) to the National Labor Relations Board in January 2012 was invalid. The opinion written by Justice Breyer was joined in by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Scalia wrote a concurring opinion in which Chief Justice Roberts, and Justices Thomas and Alito joined.

Some of Justice Breyer’s key points in his analysis were:

“Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the [recess appointment] Clause.

“Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923– 924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.

“Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business.

“Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125 Stat. 1280.

“We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”

The justices split only over the question of whether the vacancy to be filled had to itself have occurred during the recess or whether it could have occurred prior to the recess. The majority held that the vacancy could occur prior to the recess, based on historical practice.

Justice Scalia, in his concurring opinion, argued that the vacancy to be filled by a recess appointment by the President had to occur during the recess and relied upon the following language contained in the Constitutional provision at issue:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Thus this more restrictive view did not carry the day. However, the NLRB is now left with scores of cases which will have to decided again by the newly constituted Board, which was confirmed by the Senate.


Leave a comment

NLRB Attacks Employee Handbook Rules

By Edwin S. Hopson

In early June 2014, a National Labor Relations Board Administrative Law Judge (ALJ) in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, ruled that a number of handbook provisions violated the National Labor Relations Act. The handbook applied to employees who largely worked in the field on customers’ premises.

The challenged handbook rules were:

  1. A rule prohibiting employees from disclosing the location and telephone number to outsiders of the customer to which the employee was assigned.
  2. A rule stating that no employee shall disclose customer information to outsiders, including other customers or third parties and members of one’s own family.
  3. A prohibition of boisterous or disruptive activity in the workplace.
  4. A rule against initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.
  5. A series of rules prohibiting employees from taking photographs or making recordings at the workplace without prior authorization by management.

The ALJ largely held for the NLRB’s General Counsel and issued an order requiring that the company cease and desist from:

(a) Maintaining a provision in its employee handbook that requires employees not to disclose the location of their customer assignment to outsiders.

(b) Maintaining a provision in its employee handbook that prohibits employees from engaging in “boisterous” activities in the workplace.

(c) Maintaining a provision in its employee handbook that prohibits employees from initiating or participating in the distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.

(d) Maintaining a provision in its employee handbook that prohibits employees from taking photographs or making recordings at the workplace without the prior authorization by management.

The case likely will be appealed to the Board in Washington, D.C., and thereafter to a court of appeals.

This case is a good example of how closely the NLRB will scrutinize employee handbook provisions. This can be particularly problematic if the employer finds itself in the midst of a union organizing campaign.  Thus, if the employer wins the election, it may be set aside should there be handbook provisions in place that the NLRB finds objectionable.

For more information in the Louisville, KY, Lexington, KY or New Albany, IN areas, contact Ed Hopson.

For more information in the Memphis, TN, Nashville, TN or Jackson, MS areas, contact Odell Horton.


Leave a comment

NLRB May Be Expanding Definition of Joint Employer

By Edwin S. Hopson

On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director’s decision in order to determine if the Board’s current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.

The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:

  1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
  2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?
  3. If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

The briefs may be filed on or before June 26, 2014.


Leave a comment

NLRB Inviting Briefs on Whether Union Supporters May Use Company Email for Union Activities

By Edwin S. Hopson

In Register Guard, 351 NLRB 1110 (2007) the Board (a majority of whom were Republicans), enforced an employer policy which prohibited employees from using its email system for non-work-related purposed. It stated then that “… employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”

On October 24, 2013, an Administrative Law Judge issued a decision in Purple Communications, Inc., 21-CA-095151, 21-RC-091531, and 21-RC-091584, dismissing the General Counsel’s claim that the employer violated Section 8(a)(1) of the Act by maintaining a policy prohibiting personal use of its electronic equipment and systems. The ALJ based his decision on Register Guard. The General Counsel and the charging party labor organization filed exceptions requesting that the NLRB overrule Register Guard.

On May 1, 2014, the Board announced that it was inviting the parties and amici to file briefs and address the following questions.

  1. “Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions.
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?”

The parties and amici were invited by the Board “to submit empirical and other evidence.” Briefs are due no later than June 16, 2014.