Wyatt Employment Law Report

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Fourth Circuit Court of Appeals Rules NLRB Recess-Appointments Were Invalid

By Edwin S. Hopson

On July 17, 2013, the U.S. Court of Appeals for the Fourth Circuit in NLRB v. Enterprise Leasing Company Southeast and Huntington Ingalls Inc. v. NLRB, joined the D.C. and Third Circuits in deciding that the President’s recess appointments to the NLRB were invalid.  The Court’s panel was  split 2 to 1, with Senior Judge Hamilton writing for the majority, joined by Judge Duncan, and with dissenting Judge Diaz arguing in favor of the government’s position.

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NLRB Issues First Social Media Decision and Invalidates “Courtesy” Policy

By George J. Miller

On September 28, 2012, the National Labor Relations Board issued its first decision in one of the social media cases which have garnered so much attention in the last year and a half.  The case is Karl Knauz Motors, Inc., d/b/a Knauz BMW, 358 NLRB No. 164.  This was the case of a BMW salesman named Becker who was fired after posting photos and a critical message on his Facebook page about the dealership’s choice of inexpensive food (hot dogs, small bags of chips, cookies, and bottled water) for a sales event promoting a new car model to customers.  At a meeting before the event, Becker and other sales people expressed their disappointment about the choice of food and their concern that it would send the wrong message to their clients and negatively affect their commissions.  At the sales event, Becker took photos of the food.

During the same week as the sales event, an underage driver drove a vehicle off the lot of a dealership across the street and into a pond in front of the BMW dealership.  The BMW employees gathered to watch the commotion, and Becker took photos.  He posted these photos on his Facebook page along with the comment, “Oops.”  At the same time, he posted the photos of the sales event, with critical comments.  Before he posted the photos about the sales event, he told his co-workers what he planned to do. 

The dealership fired Becker, and he then filed an unfair labor practice charge at the NLRB.  The Acting General Counsel of the NLRB decided to issue a complaint against the dealership on the basis of evidence that (a) Becker was fired at least in part because of his posting about the sales event, and (b) this posting was protected by the law because it addressed terms of employment–the possible effect of the food choice on commissions–and Becker was voicing the sentiments of other salespeople and was continuing the course of activity that began at the group meeting before the sales event. 

At the trial, the dealership defended by arguing that the one and only reason it fired Becker was because of his Facebook posting about the car accident, a serious matter, not the posting about the sales event.  The judge agreed with the dealership on this point, and so did the NLRB on review.  They concluded that the posting about the accident was not protected, concerted activity, but rather that it was, “posted as a lark, without any discussion with any other employee [of the dealership] and had no connection to any of the employees’ terms and conditions of employment.”  In ruling that the dealership’s only motive in terminating Becker was the Facebook posting about the accident, the NLRB did not have to decide whether the posting about the sales event was protected activity.

However, the judge and the NLRB also found that the dealership’s “Courtesy” policy in its employee handbook violated the law because it would tend to chill employees in the exercise of their rights under the law.  The Courtesy policy said:

“(b) Courtesy: Courtesy is the responsibility of every employee.    Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

A two member majority of the three NLRB members who presided over the case agreed with the judge and held that this policy violated the law because employees could reasonably understand its broad prohibition against “disrespectful” language and “language which injures the image or reputation of the Dealership” to prohibit employees from objecting to their working conditions–whether to co-workers, supervisors, managers, or third parties–and seeking to improve them.  Under the National Labor Relations Act, employees have the collective right to object to their working conditions.

In dissent, NLRB Member Hayes argued that the majority’s decision goes too far, because it, “invalidates any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so.”  Member Hayes argued that the majority read the words “disrespectful” and “language which injures the image or reputation of the Dealership” in isolation and did not give the whole policy a reasonable reading, contrary to precedent.  He opined that, “employees and employers alike have a right to expect a civil workplace, promoted through policies like the one that my colleagues find unlawful.”  Read in this context, he believed the policy complies with the law.

In view of this new decision and the recent efforts of the Acting General Counsel to attack the policies of non-union employers, it would be wise for all non-union employers to review their policies for compliance with the National Labor Relations Act and amend or rescind them as necessary.

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NLRB Appeals Ruling Enjoining its New Regulations Meant to Speed Up Union Elections

By Edwin S. Hopson

On August 1, 2012, we reported that in Chamber of Commerce of the United States, et al. v. National Labor Relations Board, Civil No. 11-2262, the U.S. District Court for the District of Columbia had enjoined on May 14, 2012, the NLRB’s implementation of its new regulations relating to speeding up representation elections. The district judge based his ruling on a lack of quorum of NLRB board members.  Thereafter, the NLRB filed a motion in the district court requesting that the judge alter or amend the judgment to permit it to implement its new election regulations, which was denied on July 27, 2012.

As predicted, on August 7, 2012, the NLRB filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit.  It will probably be many months before the Court of Appeals rules on the NLRB’s appeal.

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Federal Judge Overturns NLRB’s New Rules Regarding Union Representation Elections

By Edwin S. Hopson

A federal judge in Washington, D.C. has ruled in Chamber of Commerce of the United States, et al. v. National Labor Relations Board that the NLRB lacked a quorum when it approved new rules governing union representation elections and that therefore the rules are invalid.  In his May 14, 2012 decision, U.S. District Judge James Boasberg found that NLRB Member Brian Hayes did not participate in the vote on the new rules, and that only Chairman Pearce and Member Becker actually were present for quorum purposes.  Under the Supreme Court’s decision in New Process Steel, it is clear the NLRB cannot effectively act with only two members as a quorum.  The Court pointed out that the NLRB could take up the rules again and consider their passage with a proper quorum.  The decision may be viewed at:


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NLRB Rejects Contention That Recess Appointments of Some of its Members Were Invalid

By Edwin S. Hopson

On March 29, 2012, in Center For Social Change, Inc., 358 NLRB No. 24 (2012), the five member National Labor Relations Board unanimously rejected a contention by the respondent that President’s Obama’s recess appointments of Members Block, Griffin and Flynn in January 2012, were invalid and that therefore the Board lacked a quorum to decide the case.  Both Republican appointees joined in the decision.  The rationale for the decision was explained as follows:

“Historically, the Board has declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act. Instead, it has applied the well-settled presumption of regularity of the official acts of public officers in the absence of clear evidence to the contrary. See, e.g., Lutheran Home at Moorestown, 334 NLRB 340, 340–341 (2001) (challenge to authority of Acting General Counsel) (citing U.S. v. Chemical Foundation, 272U.S. 1, 14–15 (1926)).”

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U.S. Chamber of Commerce Challenges Legality of NLRB Recess Appointments

By Edwin S. Hopson

On March 15, 2012, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) filed a motion to intervene with the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. National Labor Relations Board, Case No. 12-1115, an appeal by Noel Canning of an unfair labor practice decision by the Board issued February 8, 2012 by Members Block, Flynn and Hayes.  The Chamber and CDW seek to challenge the authority of the National Labor Relations Board to adjudicate charges absent a proper three-member quorum.  It claims that the President’s recess appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB in January 2012, unlawfully circumvented the U.S. Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. According to the motion to intervene, the three recess appointments to the Board were not legally effective because the President made them when the Senate was in actually session, not in recess. Since at that time there were only two confirmed Members of the five-Member Board, the Chamber and CDW contend, that there was lacking a legal quorum as required by the Supreme Court’s New Process Steel decision.  Therefore, the Board had no authority to issue its decision involving Noel Canning, according to the Chamber and CDW.

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Business Group Challenges Recess Appointments to NLRB

By Edwin S. Hopson

On January 13, 2012, the National Federation of Independent Business announced in a press release that it was seeking to amend its legal action filed in federal court on September 28, 2011, against the National Labor Relations Board over its new notice posting regulation, to include a new claim that the NLRB lacks the authority to enforce the notice posting regulation inasmuch as the recent recess appointments to the Board by President Obama violated the U.S. Constitution.  The new claim contends that the Senate was not in recess and therefore the President lacked the authority to make recess appointments to the Board.  Thus, if the President lacked authority to made the three recess appointments, then the NLRB will be down to just two Members and unable to function.