Wyatt Employment Law Report

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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 Case Involving Facebook Posting Has Been Settled

By Edwin S. Hopson

On February 7, 2011, the National Labor Relations Board announced that a complaint that had been issued against an ambulance service, American Medical Response of Connecticut, asserting that the company had unlawfully discharged one of its employees for posting a negative remark about a supervisor on her personal Facebook page had been settled. 

The NLRB’s Hartford, Connecticut Regional Director had issued a complaint on October 27, 2010, drawing national attention.

The Board’s complaint had also alleged that the company’s handbook contained overly-broad rules in its employee handbook directed at blogging, Internet posting, and communications between employees.  It also alleged that the company had illegally denied union representation to the employee during an investigatory interview.

Under the terms of the settlement approved by the NLRB’s Regional Director, the ambulance service, among other things, agreed to revise its handbook rules to eliminate improper restrictions on employee discussions regarding wages, hours and working conditions, both while at work and while away from work.

 The company also agreed that future employee requests for union representation would not be denied and that employees would not be threatened with discipline for requesting union representation. The issue of the employee’s discharge was resolved through a separate, private agreement between the employee and the company, according to the NLRB’s press release.