Wyatt Employment Law Report


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NLRB Expands Right to Handbill to Private Property in Certain Circumstances

By Edwin S. Hopson

In 1997, off-duty employees of Ark Las Vegas Restaurants (“Ark”), a food concessionaire at New York New York Hotel & Casino (“NYNY”) in Las Vegas, Nevada, engaged in handbilling in the porte-cochere area of the casino and distributed their handbills to customers of NYNY’s hotel, casino, and restaurants as those customers entered NYNY’s facility. The purpose of the handbilling was in furtherance of and to publicize their organizing campaign at Ark whose employees were unrepresented.  In 1998, the handbilling was repeated in the same areas by off-duty Ark employees.  On both occasions, NYNY called the police who issued trespass citations and escorted the Ark off-duty employees off NYNY’s premises. 

Unfair labor practice charges were filed alleging violations of Section 8(a)(1) by NYNY.  After complaints were issued, administrative law judges found that NYNY had violated the Act, and the National Labor Relations Board affirmed issuing its decisions in 2001. See New York New York Hotel & Casino, 334 NLRB 762 (2001); New York New York Hotel & Casino, 334 NLRB 772 (2001).  The cases were consolidated for review by the U.S. Court of Appeals for the District of Columbia Circuit.  The Court of Appeals remanded the cases and instructed the Board to consider the distinction between rules of law applicable to employees and those applicable to nonemployees, see Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and to answer specific questions pertaining to application of those distinctions to the facts presented in the NYNY cases.  New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002).  Subsequently, the Board in 2003 accepted the remand and in 2007 issued a notice of oral argument and conducted an oral argument in the cases. Numerous amici briefs were filed in the consolidated cases.

On March 25, 2011, the Board, in a 3 to 1 decision, in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), reaffirmed its holdings from 2001, and found NYNY violated Section 8(a)(1) of the Act by its actions in 1997 and 1998 towards the Ark off-duty employees who were handbilling on its property. Continue reading


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House of Representatives Votes For Major Reduction in NLRB’s Budget

By Edwin S. Hopson

According to a press release issued February 18, 2011, by National Labor Relations Board Chairman Liebman and Acting General Counsel Lafe Solomon, the U.S. House of Representatives was set to vote on a “Continuing Resolution” to fund the federal government through September 30, 2011, that includes a provision that would eliminate $50 million or 18% of the NLRB’s budget for the remainder of the fiscal year.

The Board in its statement points out that since most of its budget is spent on personnel and rent, such a reduction, concentrated in the last 7 months of the fiscal year, would mean that all of its 1,665 employees would face a furlough of some 55 work days or 3 months in total between now and September 30, 2011.  It estimated that such a result could create a backlog of some 18,000 cases.

The House did finally pass its budget reduction bill (H.R. 1) early on February 19, 2011, and then adjourned for the President’s Day Holiday week.  The Senate will now take up the measure starting February 28, 2011, with a possible government shutdown looming on March 4, 2011.

The February 18 NLRB press release was removed from the NLRB’s website. The Wall Street Journal also reported on this story.  See http://blogs.wsj.com/washwire/2011/02/17/nlrb-defunding-fails-but-agency-remains-gop-target/


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NLRB Proposes to Require All Covered Employers to Post a Notice Containing NLRA Rights

By Edwin S. Hopson

In a press release dated December 21, 2010, the National Labor Relations Board (in a 3 to 1 decision) announced that on December 22, 2010, it would publish in the Federal Register a Notice of Proposed Rulemaking which rule would require all employers subject to the National Labor Relations Act (“Act”) to post a notice advising employees of their rights under the Act.  The Notice of Proposed Rulemaking provides for a 60-day comment period. Continue reading


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NLRB Finds Employer and Union Pre-Recognition Agreement Was Lawful

By Edwin S. Hopson

In a press release issued December 6, 2010, the National Labor Relations Board announced that it had found, in a 2-1 decision, that an auto parts manufacturer, Dana Corporation, and the United Auto Workers union did not violate the National Labor Relations Act law by agreeing to ground rules by which the UAW would be recognized if a majority of employees signed cards in favor of it, and by creating a framework for any future collective bargaining agreements. The UAW had a long relationship with Dana and already represented workers at 9 of some 30 facilities Dana has in the United States.  The letter agreement applied to all of its non-union plants in the U.S.

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NLRB Adopts New Remedial Policies Regarding Interest on Backpay and Notices to Employees or Members

By Edwin S. Hopson

In two decisions issued October 22, 2010, the National Labor Relations Board adopted two new remedial policies:

●adding daily compound interest to backpay and other monetary awards, and,

●requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases.

The Board’s stated goal was making NLRB remedies more effective as well as more in line with current legal and workplace practices.

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The NLRB Rules “Bannering” Is Not Picketing or Otherwise Conduct Violative of Section 8(b)(4)(ii)(B) of the NLRA

By Edwin S. Hopson

In United Brotherhood of Carpenters Local 1506 (Eliason & Knuth of Arizona),, 355 NLRB No. 159 (2010), the National Labor Relations Board held that “bannering” by a union at locations associated with secondary employers did not constitute picketing nor was it sufficiently akin to picketing to constitute a threat or coercion within the meaning of Section 8(b)(4)(ii)(B) – secondary boycott provisions of the National Labor Relations Act.

  Continue reading


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New Complication to Resolving Two-Member NLRB Decisions Found Defective by the Supreme Court in New Process Steel v. NLRB

By Edwin S. Hopson

After the June 17, 2010, U.S. Supreme Court decision in New Process Steel v. NLRB in which the court invalidated National Labor Relations Board decisions issued while there were only two Board Members serving during the period January 1, 2008 to April 5, 2010, the NLRB announced it would begin reviewing about 100 two-Member Board cases in order to correct the defect found by the court.  During that two Board Member “era” the two Members were Wilma Liebman and Peter Schaumber.  It was thought that it would be a simple matter to have another one of the new Members recently appointed by President Obama to review each case record and then either join in Liebman and Schaumber’s decision or file a dissent in order to correct the defect.

However, the various reviewing federal courts of appeal have not returned all the cases to the Board.  Many remain to be remanded.  See:

https://mynlrb.nlrb.gov/portal/nlrb.pt?open=512&objID=219&mode=2&cached=true

On Friday, August 27, 2010, the term of Peter Schaumber, a Republican appointee member of the National Labor Relations Board, expires and the NLRB goes from five members down to four:  three Democrats and one Republican.  More significantly, it will now take TWO of the new Members to review each remaining case and either join Liebman’s decision or file a dissent.

The “new” panel could even reverse the prior decision since only Liebman remains on the Board from the original two member Board after August 27, 2010.

This result could add further delay to resolving the cases affected by the New Process Steel v. NLRB decision.