Wyatt Employment Law Report

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NLRB Ratifies Actions of Prior Board Found in Noel Canning to Lack a Quorum Due to Improper Recess Appointments

By Edwin S. Hopson

On August 4, 2014, the National Labor Relations Board announced that on July 18, 2014, it had “unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.” This action was in response to the Supreme Court’s decision in NLRB v. Noel Canning holding that the Members recess-appointed on January 4, 2012 by President Obama were not validly appointed. The current Board was without question validly appointed on August 5, 2013, at which time a quorum was regained.

From January 4, 2012 to August 5, 2013, the NLRB took formal action on numerous matters including the appointment of some Regional Directors and Administrative Law Judges. In addition, there were agency restructurings of regional and headquarters offices. At the time these actions were taken, some parties appearing before the Board took exception to actions taken by some of these persons who they claimed were invalidly appointed. In an effort to eliminate those claims and challenges, the NLRB has taken this action.

In addition, the NLRB expressly authorized the following actions:

■ The selection of Dennis Walsh as Regional Director for Region 4 (Philadelphia);

■ The selection of Margaret Diaz as Regional Director for Region 12 (Tampa);

■ The selection of Mori Rubin as Regional Director for Region 31 (Los Angeles);

■ The selection of Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson as Administrative Law Judges;

■ The restructuring of various Field Offices;

■ The restructuring of Headquarters’ Offices.

On July 30, 2014, the NLRB announced that following the Board’s July 18, 2014 authorization, Regional Directors Walsh, Diaz, and Rubin ratified all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014. These ratifications also included all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases taken by these Regional Directors.

Whether this action by the Board and the several Regional Directors will be effective to eliminate pending challenges remains to be seen.

The July 18, 2014 Minute of Board Action can be viewed here.






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NLRB’s Acting General Counsel Issues Second Report on Social Media Cases

By Edwin S. Hoposon

Late last month, the Acting General Counsel of the National Labor Relations Board, Lafe Solomon issued a second report describing social media cases reviewed by his office.  The Memorandum covered 14 cases, 7 of which involved questions about employer social media policies. Five of those social media policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised by the company.

The remaining 7 cases involved the discharge of employees after they posted comments to a Facebook page. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not found to be work-related.

The Acting General Counsel’s report underscored two points made in his first compilation of cases issued August 18, 2011, namely:

 –Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

–An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

 In one case, Solomon stated:

“The Employer’s rule prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” We concluded that this rule was unlawful because it would reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently. Further, the rule contained no limiting language that would clarify to employees that the rule does not restrict Section 7 rights.”

 In that case, the employee involved had posted a complaint about her employer on her Facebook page using expletives.  Some 10 co-workers were “friends” and at least one responded to the posting.  The employee was discharged over the posting.  The Acting General Counsel found the discharge unlawful based on the fact that the firing was based on an unlawfully overbroad non-disparagement rule and that the employee was engaged in protected concerted activity in making the posting.

In another case, the employer’s discharge of the charging party for her Facebook comments was found to be lawful since the employee had not been engaged in protected concerted activity. However, the social media policy and its no-solicitation rule were found to be unlawfully overbroad.

Solomon stated in his press release that he has asked all NLRB regional offices to forward cases which the regional directors believe to be meritorious social media cases to the NLRB’s Division of Advice in Washington D.C. for review.  In this way, Solomon stated, the NLRB can better track such cases and devise a consistent approach. According to Solomon, thus far some 75 cases have been forwarded to the Division of Advice.

The report emphasizes that it represents the Acting General Counsel’s interpretation of the National Labor Relations Act.  There are currently three cases involving social media questions pending before the Board, which should provide further guidance under the Act for such cases.

The full report can be found at: 

 Operations Management Memo

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NLRB’s Acting General Counsel Announces Revisions to Deferral Policy

By Edwin S. Hopson

On January 20, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, in a press release announced a revision to the Board’s existing policy regarding deferral of unfair labor practice charges to arbitration under collective bargaining agreements.  Citing concerns about delays in processing grievances to arbitration, Solomon directed Regional Directors as follows:

 Section 8(a)(1) and (3) Cases

 –Conduct Charging Party investigation, make arguable-merit determination, and determine whether arbitration is likely to be completed in less than a year.

 –If arbitration is likely to be completed in less than a year:

           –Defer and conduct quarterly reviews.

           –At the fourth quarterly review (in new and currently pending cases in deferral status), send “show cause” letters to all parties seeking an explanation of why deferral should not be revoked.

           –If the Charging Party does not respond, contact the Charging Party and any individual discriminatees before dismissing for failure to prosecute.

          –If there is insufficient reason to continue deferral, conduct a full investigation; if the charge is meritorious, submit the case to Advice; if the charge is non-meritorious, dismiss absent withdrawal.

         –If there is good reason to continue deferral, contact Advice.

 –If arbitration is not likely to be completed in less than a year:

         –Determine, in consultation with all parties, including any individual discriminatees, whether deferral is inappropriate because the delay is likely to frustrate the Board’s remedial ability or unduly disadvantage the Charging Party.

        –If deferral is deemed inappropriate, conduct a full investigation and, if the charge is meritorious, submit the case to Advice.

       –If deferral is considered appropriate despite the delay, contact Advice.

Section 8(a)(5) Cases

–Make deferral decisions and conduct quarterly reviews, as under existing policy.

–If  arbitration is not likely to be or has not been completed within a year, and the case implicates individuals’ statutory rights or involves serious economic harm to the Charging Party, the Region may at its discretion conduct a full investigation and submit the case to Advice in the same manner as Section 8(a)(1) and (3) cases.

Any questions regarding implementation of this revised policy are to be directed to the Division of Advice in Washington, D.C.