Wyatt Employment Law Report

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Acting NLRB General Counsel Issues Report on FY 2012 Results

By Edwin S. Hopson

On January 11, 2013, NLRB Acting General Counsel Lafe Solomon released a summary of activities for the Fiscal Year 2012. The following statistics are some that Solomon highlighted on the NLRB’s website:

  • Initial elections in union representation elections were conducted in a median of 38 days from the filing of the petition.
  • A 91.0% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
  • The Regional Offices won 90.1% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part.
  • 94.5% of the 73 Board decisions under review by the US Courts of Appeals were enforced or affirmed in whole or in part.
  • A total of $44,316,059 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines. 1,241 employees were offered reinstatement.

According to his report, the NLRB’s total case intake during fiscal year 2012 was 24,275 compared to 25,004 cases in the prior fiscal year, a decrease of 3%. Unfair labor practice cases decreased by 2.5% from the previous year, and total representation cases decreased 6.5% from the prior year.

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NLRB Acting General Counsel Announces Further Proposed Restructuring of Field Offices

By Edwin S. Hopson

On October 9, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, announced a further restructuring of the NLRB’s field offices.  Earlier, he announced changes affecting the St. Louis and Winston-Salem offices which were consolidated into the Kansas City Region and Atlanta Regions respectively, along with some other realignments.

The most recent proposal pertains to Regional 26 in Memphis, Tennessee and adjacent Region 26 offices in Nashville and Little Rock.  Solomon is proposing that the Regional Office in Memphis and Resident Office in Little Rock would move to the jurisdiction of Region 15 in New Orleans.  He is also proposing that the Region 26 Resident Office in Nashville would be moved to the jurisdiction of Region 10 in Atlanta.  The Memphis office would become a Subregional Office and the Nashville and Little Rock offices would continue to be Resident Offices. No offices would be closed under Solomon’s proposed plan, which would have the staffs in Memphis and Little Rock reporting to the Regional Director based in New Orleans, and staff in the Nashville office would report to the Regional Director in Atlanta office.

Solomon in the October 9 NLRB press release sought input from NLRB staff and “from external stakeholders, including practitioners, members of the management-labor relations community, and Members of Congress, before making a final decision about whether to proceed with the proposed consolidation.”  After this comment period which ends October 31, 2012, Solomon may present a formal plan to the Board.  He also noted that any permanent structural change would involve the federal rulemaking 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 Solomon Considering More Regional Office Consolidations

By Edwin S. Hopson

In a press release issued July 2, 2012, NLRB Acting General Counsel Lafe Solomon announced that he is considering another proposal to reorganize Regional Offices.  Previously, Solomon announced proposed consolidations involving St. Louis, Peoria, and Winston-Salem offices.

Under the latest proposal, the Hartford, Connecticut Regional Office (Region 34) would become a Sub-Region of the Regional Office in Boston, Massachusetts (Region 1), the Regional Office in Memphis, Tennessee (Region 26) would become a Subregion of the New Orleans, Louisiana Regional Office (Region 15), and the Nashville, Tennessee and Little Rock, Arkansas Resident Offices also would be under the jurisdiction of the New Orleans Region.  The Regional Director for this consolidated Regional Office would be located in New Orleans.  As with the other consolidations, no offices would be closed under this reorganization.

Solomon stated that he would consider input from NLRB staff and from external stakeholders as well as Members of Congress, before making a final decision whether to present a formal proposal to the National Labor Relations Board.  Comments should be submitted by July 31, 2012.

He also indicated that he would be making a final decision on this and the previously announced reorganization by early fall of this year, and that further restructuring could be proposed in the future.

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NLRB Touts Protections for Non-Union Employees

By George J. Miller

In the past year the National Labor Relations Board’s Acting General Counsel, Lafe Solomon, has attracted a lot of attention in the legal and business community by issuing three memoranda describing how his office has alleged that employers have violated the rights of non-union employees by enforcing social networking policies.  Taking a page from Mr. Solomon’s book, the NLRB itself has now gotten into the act.  On June 19th the Board announced that it has launched a website intended to describe the rights of employees to act together for mutual aid and protection, even if they are not in a union.”  The website address is http://www.nlrb.gov/concerted-activity

The website consists of a graphic map of the United States showing thirteen locations around the country in which it was alleged or eventually found that employers at a variety of types of non-union workplaces had violated the rights of employees under the National Labor Relations Act (“Act”).  All but one of the cases involved employees being fired for engaging in activity protected by the Act, such as complaining about supervisors, working conditions, or compensation or, in one case, simply discussing wages with a co-worker in violation of an unlawful workplace policy prohibiting such discussions.  In each case, the employers either settled early in the process or lost at trial.  The outcome in each case was back pay for discharged employees, offers of reinstatement, and rescission of unlawful workplace policies.  

In the press release announcing the new website, Board Chairman Mark Gaston Pearce is quoted as saying, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

This website could well spark an increase in the number of unfair labor practice charges filed against non-union employers, particularly if the Board does not also feature cases which were found to have no merit, which it does not appear they intend to do.  So it would be wise for all non-union employers to be aware that they are not beyond the reach of the Act simply because they are non-union.  In particular, any workplace situation involving the possible discipline or discharge of employees should be analyzed in light of the protections afforded by the Act in order to avoid violating employees’ rights and being ordered to pay back pay and offer reinstatement to discharged employees.  At the same time, employers should be aware of the kind of activity that is not protected by the Act.  Unfortunately, the dividing line between the two is often not clearly marked, and a very careful judgment must be made.

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NLRB’s New Rules Governing Union Representation Election Procedures Go Into Effect

By Edwin S. Hopson

New rules governing procedures applicable to the processing of representation cases before the National Labor Relations Board went into effect on April 30, 2012.  According to an April 26, 2012, memorandum issued by NLRB Acting General Counsel Lafe Solomon to NLRB field personnel, the new rules “are designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.” 

The changes are:

1.         §102.64 is amended to expressly construe Section 9(c) of the National Labor Relations Act to state that the statutory purpose of a pre-election hearing is to determine if a “question concerning representation” exists.

2.         §102.66 is amended to clarify that NLRB hearing officers presiding over pre-election hearings have the authority to limit the introduction of evidence to that which supports a party’s contentions and is relevant to the existence of a “question concerning representation.”

3.         §102.66(d) is amended to afford the hearing officer presiding over a pre-election hearing the discretion as to whether or not the filing of post-hearing briefs will be allowed, and, if so, what issues are to be addressed, and the time for filing, all subject to the ultimate authority of the regional director.

4.         §§102.67 and 102.69 are amended to defer most requests for Board review—with the exception of special permission to appeal—until after the election is conducted; any such post-election request can also be consolidated with a request for review of any post-election rulings.

5.         §101.21(d) is amended to eliminate the recommendation (along with all of Part 101, Subpart C) that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review, since such requests can now only be made after the election is conducted.

6.         §102.65 is amended to clarify and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.

7.         §§102.62(b) and 102.69 are amended to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of a regional director’s resolution of such disputes is discretionary.

Dissenting Member Hayes issued a written statement in which he argued, among other things, that the new rules are contrary to the Act and the constitution as well as contrary to past practice at the Board.  Hayes points out that only two members of a five member board approved the new rules. Chairman Pearce offered a rebuttal in the form of a concurring statement supporting the implementation of the new rules. Chairman Pearce’s and Member Hayes’ statements can be found at:


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NLRB Acting General Counsel Announces Consolidation of Field Offices

By Edwin S. Hopson

Because of declining case loads, NLRB Acting General Counsel Lafe Solomon has announced implementation of a pilot program that will consolidate a number regional offices effective May 1, 2012.  Under the plan, staff in regional offices in Atlanta, Georgia (Region 10) and Winston-Salem, North Carolina (Region 11) will report to the same Regional Director, Claude T. Harrell, Jr., who is based in Atlanta.  Also, regional offices in St. Louis, Missouri (Region 14) and Kansas City, Kansas (Region 17) will also have the same Regional Director, Daniel L.  Hubbel, who is based inKansas City.  The sub-regional office in Peoria, Illinois will move from the St. Louisregion to the regional office in Indianapolis, Indiana (Region 25).  No offices will actually be closed under the plan.

The pilot program will allow the general counsel’s office to gather information and sort out questions that have arisen on internal NLRB management and case handling. Once sufficient data and experience is gained, Solomon stated that he can then choose to present a formal proposal to the Board.  In any event, any permanent structural change in the regional office structure would need to move through the federal rulemaking process.