Wyatt Employment Law Report

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Court Invalidates NLRB’s Notice Posting Rule

 By Edwin S. Hopson

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013), regarding the NLRB’s issuance of a regulation in August 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, post a NLRB notice to employees regarding employee rights under the NLRA. The regulation had been stayed pending resolution of the National Association of Manufacturers case.

The court of appeals held that the notice posting regulation was contrary to Sections 8(c) and 10(b) of the NLRA and therefore invalid in its entirety. 

While the court found that the NLRB had a lawful quorum at the time the rule was issued in 2011, it nevertheless stated (without deciding) that former NLRB Member Craig Becker, a recess appointee, was not validly appointed, citing its recent decision in Noel Canning v. NLRB.

The notice posting decision may be found at:



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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 Overrules Prior Precedent on Need to Produce Witness Statements Taken During Investigations

By Edwin S. Hopson

The National Labor Relations Board on December 15, 2012, issued its decision in American Baptist Homes of the West, d/b/a Piedmont Gardens, 359 NLRB No. 46 (2012), ruling that, in determining whether an employer must provide witness statements to a union representing an employee who has been disciplined based on investigation during which those statements were obtained, the NLRB will henceforth balance the confidentiality interests of the employer against the union’s need for the information.  Piedmont overrules a prior NLRB decision, Anheuser-Busch, Inc., 237 NLRB 982 (1978), which had established a bright-line test excluding such statements from disclosure.  The Board noted that the U.S. Supreme Court in Detroit Edison Co. v NLRB, 440 U.S. 301 (1979) called for just such a balancing test.  

Piedmont is a continuing care facility where statements were taken from two employee s who claimed to have witnessed a certified nurse aid asleep on the job.  That CNA was discharged over the incident. The union representing employees at Piedmont requested all information used in the termination, including witness statements. The employer refused had refused.

The Board in Piedmont balanced the needs of the union representing the discharged member against “any legitimate and substantial confidentiality interests established by the employer.” However, the NLRB decided not to apply its new rule retroactively and therefore found for Piedmont.

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NLRB Announces Contract with FMCS to Provide Mediators for its ADR Program

 By Edwin S. Hopson

On October 23, 2012, the National Labor Relations Board announced that, as part of its efforts to settle cases, it had contracted with the Federal Mediation and Conciliation Service (FMCS) to provide FMCS mediators to the parties who participate in the Board’s alternative dispute resolution (ADR) program.

According to the NLRB’s press release, “[s]ince 2005, the Board’s ADR program has provided parties with the assistance of a mediator to aid them in settling unfair labor practice cases pending before the Board.”  It went on to note that a settlement was reached in 60% of the cases mediated under the NLRB’s ADR program.   There will be no fees or expenses charged for using FMCS mediators in the ADR program.  The NLRB will stay further processing of the case while it is in the program, but generally may not be in the program longer than 30 days, and in no event longer than 60 days, according to the NLRB’s press release.

Up until now, the NLRB has primarily used an Administrative Law Judge, who has not been assigned to hear the case, to serve as mediator.  At this stage, complaint has already issued in the unfair labor practice case but the case has not yet been tried.  The FMCS contract will allow the NLRB to bring new resources to bear in resolving cases.  However, the parties will continue to have the opportunity to use the ADR program director in the NLRB’s Division of Judges as a mediator as well. 

In the initial stages, the FMCS mediator may not have a strong level of knowledge regarding the NLRA and Board law.  However, with training and experience developed over time, FMCS mediators should be able to have a favorable impact on the ADR process.

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NLRB Announces Case Statistics for Fiscal Yeal 2012

By Edwin S. Hopson

On October 16, 2012, the National Labor Relations Board announced that in the fiscal year just ended on September 30, 2012, it had issued 341 decisions in contested cases.  Of that total, 277 were unfair labor practice cases and 64 were representation cases.  It also stated that the median age of pending cases was reduced from 219 days to 108 days.

It was also noted that there was considerable turnover in board members during this past fiscal year:  the recess appointment of Member Craig Becker expired on Jan. 3, 2012; three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn – were recess-appointed by the President and took office in early January, 2012; and Member Flynn resigned his position effective July 24, 2012. The Board currently has four of the five board member positions filled by Chairman Mark Pearce, and Members Hayes, Griffin and Block.  Hayes’ term expires on December 16, 2012.

In its October 16 press release, the Board listed a number of cases of significance that were decided this past fiscal year:

“Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.”

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U.S. Senators File Brief Seeking to Invalidate the President’s Recess Appointments to NLRB

By Edwin S. Hopson

On September 26, 2012, U.S. Senate Minority Leader, Mitch McConnell, announced that he and 41 other Senators had filed an amicus curiae brief in the U.S. Court of Appeals for the District of Columbia in Noel Canning v. NLRB, Nos. 12-1115, 12-1153, challenging the constitutionality of the recess appointments made on January 4, 2012, to the National Labor Relations Board by President Obama.

McConnell stated, in part, in a press release, “[t]he President’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab.”

In the brief filed with the court, the Senators’ lawyers who prepared and filed the brief led off with:

“The President’s January 4, 2012 recess appointments to the National Labor Relations Board deprived the Senate of two powers it does possess to protect a purported power the President does not.”

Should the NLRB ultimately lose this case, all decisions rendered by the Board since January 4, 2012, would likely be voided and of no effect.

A ruling by the court of appeals could take several months.  In any event, whoever loses will likely seek an appeal to the U.S. Supreme Court.

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Federal Court Rejects NLRB Challenge to State “Secret Ballot” Law

By Edwin S. Hopson

On September 5, 2012, U.S. District Court Judge Frederick J. Martone ruled that an Arizona state constitutional amendment addressing how employees choose a union was not on its face preempted by the National Labor Relations Act.  The NLRB had filed suit in federal court in Phoenix, Arizona in 2011, challenging the Arizona provision which essentially compelled union elections to be by secret ballot.  The NLRB contended that the so-called “secret ballet amendment” conflicted with longstanding federal labor law on how employees choose a union.  The judge in dismissing the NLRB’s lawsuit stated: “[i]t is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices.”  However, while leaving open the possibility of a meritorious future challenge, the judge declined to assume the amendment to the Arizona constitution would conflict with the NLRA since the amendment to the had not yet actually been applied.

Judge Martone also stated: “[a] bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

According to an NLRB press release, the state of Arizona had “represented to the court that there was no preemption because the state’s ‘guarantee’ of a secret ballot election would only apply if and when the voluntary recognition option is not selected.”

In that same press release, NLRB Chairman Mark Gaston Pearce states: “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”