Wyatt Employment Law Report

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NLRB Chairman Outlines Intention to Push for More Election Changes

By Edwin S. Hopson

On January 26, 2012, Sam Hananel of the Associated Press reported that Mark Pearce, Chairman of the National Labor Relations Board, plans to push for the issuance of more rules making it easier for unions to organize employers under the National Labor Relations Act.  The Board in December, 2011, had already issued final rules regarding election procedures to, in a limited way, eliminate some of the delays in the union representation election process, to take effect at the end of April 2012.  Earlier in the year, before Chairman Wilma Liebman’s term expired, the Board had laid out a broader agenda to speed up representation elections. 

Early this month, President Obama had made three recess appointments to the Board that have been controversial.  Republicans and business groups are contending that the appointments were unconstitutional since the Senate was not in recess. If they are right, all actions taken by the Board since that date may be void.

Pearce stated “[o]ur goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayer” and “[m]y personal hope is that we take on all of these things and consider each one of these rules. We presume the constitutionality of the president’s appointments, and we go forward based on that understanding.”

The changes Pearce may be seeking in addition to those announced in December, 2011, are shown below in a chart used in June 2011, that also shows current procedure:

Current procedures Proposed procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.  Election petitions, election notices, and voter lists could be transmitted electronically.  NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.   The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements. The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted.  The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved. The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.  The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters. Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters. The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.

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House Committee Holds Another Hearing on the NLRB

By Edwin S. Hopson

On September 22, 2011, the U.S. House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN), held a hearing entitled, “Culture of Union Favoritism: Recent Actions of the National Labor Relations Board.” The hearing focused on several decisions issued by the National Labor Relations Board (NLRB) in late August just before the term of Chairman Liebman expired.  According to a press release, the Committee Chairman in his opening statement noted, “[t]hrough three decisions handed down in one afternoon, the board restricted workers’ right to a secret ballot election, undermined employers’ ability to maintain unity in the workplace, and created new barriers for those who wish to challenge union representation.  For anyone following the Obama board, this barrage of activist decisions – however unacceptable – was not unexpected. But for workers and job creators struggling to move this country forward, it is an outrage.”

 NLRB Chairman Mark Pearce’s response was:  “The National Labor Relations Board takes very seriously its obligation to enforce the law as enacted by Congress in a fair and even-handed way. Since August of last year, the Board issued more than 400 decisions, finding for employer interests in some, labor union interests in others, and individual employee interests in still others. In its hearing today, the Committee chose to focus on three decisions issued in late August. Two of them reversed previous Board rulings that were themselves highly controversial when they issued. The third clarified a confusing standard, allowing a group of Certified Nursing Assistants at a nursing home in Alabama to exercise their choice on union representation through a secret ballot election. Finally, the Board issued a rule which requires employers under the jurisdiction of the NLRB to post a notice of employee rights under our law, including the right to refrain from union activity, available for free download from our website. To my mind, these actions represent pursuit of the mission that Congress gave this agency – to protect worker free choice, promote collective bargaining and preserve labor peace.”

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The NLRB “Flip-Flops” Again

By George J. Miller

Labor law involves balancing many interests of employers, employees, and labor unions.  The National Labor Relations Board is the federal agency created by Congress in 1935 to balance these interests in the first instance, subject to review by the federal courts of appeals.  Students of labor law know that the NLRB has frequently overruled previous NLRB decisions and has sometimes overruled those decisions multiple times on the same issue of law.  For example, between 1962 and 1982, the NLRB overruled prior NLRB decisions three times on the issue of whether or not false election campaign propaganda will warrant setting aside an election and ordering a second election.  See Midland National Life Insurance Co., 263 NLRB 127 (1982). 

Arguably, this flip-flopping is attributable to the political party of the majority of the members of the Board at a given time and their views about the relative weighting of the interests of employees, employers, and labor unions.  It may also be due to changes in the types of people appointed to the Board that began in the Reagan administration, as suggested by some commentators.

Three weeks ago the NLRB flip-flopped again when it overruled two decisions of the “Bush” Board, which in turn had overruled decisions of the “Clinton” Board.   The two most recent decisions are Lamons Gasket Co. and UGL-UNICCO Service Company, which involved fundamentally the same issue: how to balance (a) the right of employees to freedom of choice in deciding whether or not to continue to be represented by the same labor union, a different union, or none at all, and (b) maintaining the incumbent union’s status as the exclusive bargaining representative of the employees by barring the employees from challenging the union’s status in an election for a “reasonable” period of time after either a voluntary recognition of the union by the employer or the sale of the company to a successor employer.  A majority of the Obama Board (Chairman Liebman and Members Becker and Pierce) decided in favor of the latter, reasoning that doing so furthers the goal of the law to maintain stability in labor/management relations and restores Board law to what it had been for many years before the Bush Board disturbed it.  In both cases, Member Hayes, a Republican, dissented, reasoning that the Board lacked a rational basis for overruling the Bush Board decisions.

The practical effect of these new decisions, if they are ultimately enforced by the courts of appeals, is that after an employer voluntarily recognizes a union, or after it becomes a successor to an employer which had a duty to bargain with a union (e.g., after purchasing the company), the incumbent union’s status as the employees’ exclusive bargaining representative cannot be challenged for at least six months after the first bargaining session, the period of time which the Board in both cases ruled is a reasonable period of time in these and future similar cases.

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Former NLRB Chairman Liebman Speaks Out

By Edwin S. Hopson

In an interview published on August 29, 2011, in the New York Times, former NLRB Chairman Wilma Liebman responded to critics of the Board during her recent tenure.  “The criticism is grossly out of proportion to what has happened and what has been done. We knew we were going to have a boxing match, but we didn’t expect our opponents to come in with a baseball bat,” she said in the Times Reporter Steven Greenhouse’s interview. 

Liebman’s term expired at midnight on August 27, 2011, leaving three members remaining on the five-member Board.

According to the New York Times’ article, “[c]onservative newsletters describe the presidentially appointed board as ‘Marxism on the march’ and its members as ‘socialist goons.’ Business groups denounce it as a handmaiden of union bosses, while Representative Michele Bachmann, a Republican presidential candidate, says she will shut down the agency if elected.”  Greenhouse also reported that South Caroline Senator Lindsey Graham vowed that he would block any future Democratic nominees to the NLRB because of the pending NLRB case involving Boeing’s opening a plant inSouth Carolina.

In the interview, Liebman also was quoted as saying, “[t]he perception of this agency as doing radical things is mystifying to me. The rhetoric is so overheated.” Liebman, who is 61, also stated that “she asked not to be reappointed [to the NLRB] and was ready to move on.”

Greenhouse also interviewed former NLRB Member Peter Schaumber, who was appointed byPresidentGeorgeW.Bush.  Schaumber stated, “[t]here has always been a certain arc in the board’s decisions when control changes between parties. Certain cases would go back and forth, but what we’re seeing now goes well beyond that arc.”

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NLRB Orders Re-Run Election in Largest Mail Ballot Election Ever Conducted

By Edwin S. Hopson

On August 10, 2011, the National Labor Relations Board issued an order that will lead to a re-run of a mail ballot election held in the fall of 2010 involving some 43,000 employees of Kaiser Permanente in California.  This was the largest mail ballot election ever conducted by the NLRB.  The employees were voting on whether to remain represented by their current union — United Healthcare Workers, affiliated with the SEIU, or to select the National Union of Healthcare Workers (NUHW), a new union which had been created by former SEIU officials.  The other option on the ballot was to select “no union.”

In the first election last fall, a majority of employees voted to retain the SEIU affiliated union.  Objections were filed by NUHW after the election and, in July, 2011, NLRB Administrative Law Judge Lana Parke issued a report following a hearing on objections, sustaining some of the objections and recommending the original election results be set aside and a new election conducted. 

The Board’s order was signed by Chairman Wilma B. Liebman and Members Brian Hayes and Mark Gaston Pearce, with Member Craig Becker recused.

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NLRB Rules For Employer Finding No Obligation To Reinstate Or Pay Backpay to Illegal Aliens

By Edwin S. Hopson

On August 09, 2011, the National Labor Relations Board issued its decision in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), in which it held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002) was binding upon the Board in deciding that it lacked the authority to award backpay to undocumented immigrant workers whose rights under the National Labor Relations Act had been violated.  This was found to be so even if the employer knew at the time the undocumented workers were hired that they lacked employability with the meaning of the Immigration Reform and Control Act of 1986 (IRCA).

On February 12, 2003, seven employees who worked for Mezonos Maven Bakery were discharged after complaining about treatment they were receiving from a supervisor.  Charges were filed alleging a violation of the Act over this retaliation for engaging in protected concerted activity.  The case was settled but the employer later refused to offer reinstatement or backpay citing the fact that the seven employees were undocumented workers.  An NLRB Administrative Law Judge ruled against Mezonos Maven Bakery and it appealed to the Board, which ruled for the Bakery.

However, two of the NLRB’s three member panel, Chairman Liebman and Member Gaston, criticized the Supreme Court’s 2002 ruling, stating “in addition to the obvious failure to make employee-victims whole the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”  Member Hayes refused to join in that criticism stating “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Liebman and Gaston also postulated that they “would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Hayes also refused to speculate about future other possible remedies.

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Is that an Escaped Prisoner or the Telephone Repairman at My Door?

By Tyson Gorman

In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.