Labor Relations Counsel

Board Grants Union Access to Employer's Facility for Health and Safety Inspection

Labor Management Relations Practice Group — Fri, 17 May 2013 11:11:52 -0800

The National Labor Relations Board (“the Board”) recently issued its decision in Caterpillar, Inc., 359 NLRB No. 97, in which a union charged that the employer had violated the National Labor Relations Act (“the Act”) by refusing to grant the union access to the employer’s facility to conduct a health and safety inspection in the wake of a fatal accident. The company objected to the union’s request on several grounds. First, the company noted that it had conducted an accident re-creation, which it allowed the union’s steward to attend, and had also provided a video recording of the re-creation to the union’s safety specialist. Further, the company provided copies of post-accident photographs and the local police department’s investigation file to the union. Finally, the company pointed out that the union also represented one of the company’s primary competitors, and stated that the company wanted to maintain the confidentiality of its manufacturing procedures.

The union asserted that photographs and video recordings could not take the place of an on-site inspection, because only being physically present at the location of the accident would give the safety specialist a full understanding of the lines of sight, angles, and physical dimensions of the work area. Further, the union noted that the police department had been unable to determine the precise cause of the accident during its investigation. The union argued that it needed access to the employer’s facility in order conduct an independent investigation, which would allow the union to then engage in informed dialogue with the company about methods for preventing future accidents.

Ruling in favor of the union’s access request, the Board explained that it applies a two-part balancing test in plant access cases, weighing the right of employees to be responsibly represented against the right of the employer to control its property and ensure that its operations are unhindered. In this case, the Board found that the employees’ representational rights outweighed the employer’s property rights, primarily because matters of health and safety are of critical importance to the workforce.

The Board discounted the employer’s stated concerns about the confidentiality of its manufacturing procedures because a predecessor employer at the same location had given public tours of the facility, and because the current employer had continued to allow some non-employee access to the facility after acquiring the plant.

Caterpillar reinforces that the Board strongly favors granting plant access rights to unions that represent members of an employer’s workforce, particularly where the union raises health or safety concerns. Employers will face a high bar when attempting to refuse or limit union access and are well-advised to consult with counsel to develop the least restrictive access options that will still meet the company’s legitimate operational or confidentiality concerns. Employers are likely to achieve the best results by negotiating a mutually acceptable arrangement with the union whenever possible, rather than submitting the matter to a Board that is somewhat dismissive of property rights and confidentiality concerns. In cases where it proves impossible to avoid litigation, employers may be more likely to succeed in defending narrowly drawn restrictions on union access than broad refusals.

Senate Committee Questions NLRB Nominees as Third Circuit Declares Recess Appointments Unconstitutional

Ilyse Schuman — Thu, 16 May 2013 14:55:36 -0800

The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well. Continue reading this entry at Littler's DC Employment Law Update.

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D.C. Circuit Invalidates NLRB's Posting Rule

Labor Management Relations Practice Group — Wed, 08 May 2013 13:04:19 -0800

By Maury Baskin and Gregory Brown

The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress.

The Board’s challenged rule would have forced six million employers throughout the country to post the Board’s mandatory notice of employee rights to organize unions (and related topics), under threat of an unfair labor practice finding by the agency. Moreover, failure to post the required notice would have permitted the Board to extend the usual six-month statute of limitations period in unfair labor practice cases. The rule also permitted the Board to consider an employer’s refusal to post the notice as evidence of unlawful motive in unfair labor practice cases.

A broad coalition of business groups challenged the rule in the federal courts. After two conflicting district court decisions were issued in 2012, the coalition appealed to the D.C. Circuit Court of Appeals. Maury Baskin of Littler’s Washington, D.C. office argued the appeal on behalf of all the business groups.

The court began its analysis by focusing on Section 8(c) of the National Labor Relations Act, which states: “The expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice” (with the exceptions of prohibited threats or promises). The court reasoned that 8(c) equally protects employers’ rights to speak or to choose not to disseminate views about unions in the workplace.

The court further rejected the Board’s argument that the mandatory notice poster was “government speech,” rather than employer speech. The court explained that the Board was free to post the messages contained in the poster on its own website, but could not compel employers to disseminate the Board’s message. Consequently, the court concluded that the Board’s rule violated Section 8(c) because it made an employer’s failure or refusal to post the Board’s notice an unfair labor practice, and because it treated such a failure or refusal as evidence of anti-union animus.

The court also rejected the rule’s provisions that would have tolled the Act’s six-month limitations period for filing unfair labor practice charges based on a failure to post the notice, if the charging employees were unaware of the posting requirement. The Board presented no evidence that Congress intended to allow the sort of tolling that the Board included in the rule. Moreover, the court explained, courts do not generally recognize lack of knowledge of the law as a basis for equitable tolling. For these reasons, the court held that the rule’s tolling provision was also unlawful.

Having found that each of the enforcement provisions underlying the rule were unlawful, the court held that the remaining provisions of the rule could not be severed or otherwise allowed to stay in effect. Two of the three judges on the court panel also declared that the Board lacked the authority under its general rulemaking power to promulgate a rule of this type, because it could not be shown to be “necessary” to enforcement of the Act.

Practical Impact on Employers

The court of appeals decision means that the NLRB’s Notice Posting Rule has no force or effect on employers. The decision should have nationwide impact, and no employer can now be required to post the NLRB’s notice.

It should be noted that federal government contractors have since 2010 been required to post a very similar notice published by the U.S. Department of Labor. That requirement, which is limited to such federal contractors, remains in effect. Covered government contractors must still post those notices to their employees as a condition of performing government work, notwithstanding the new court decision.

It remains to be seen whether the Board will petition the U.S. Supreme Court to try to overturn the D.C. Circuit’s decision. Another appeals court, the Fourth Circuit, is also considering an appeal on the same issue. In light of the nationwide impact of the D.C. Circuit’s decision, however, there is some question as to whether the second case is moot.

Finally, it is worth noting that this court decision will not be affected by the pending question of whether the current members of the Board were improperly appointed through “recess” appointments. The court determined for purposes of this decision that the NLRB had a sufficient quorum of lawfully appointed members to issue the rule, but the court found that the rule itself was unlawful.

Circuit Court Affirms Healthcare Facilities' Single Employer Status Under NLRA

John D. Doran — Mon, 15 Apr 2013 08:46:58 -0800

The Third Circuit recently upheld the National Labor Relations Board’s finding that a separately organized nursing home facility is properly considered a single employer with its parent company. The case, Grane Health Care v. NLRB, involved a nursing home that was purchased by Grane Healthcare Co. Grane subsequently established a new entity called Cambria Care Center to operate the facility. The facility’s employees had been represented by two unions. Grane refused to recognize those unions after it purchased the nursing home. Grane also extended employment offers to most of the facility’s employees, but did not offer employment to four out of the five officers of one union and an employee represented by the other union who was active in an earlier strike. Continue reading this entry at Littler's Healthcare Employment Counsel.

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House of Representatives Passes Preventing Greater Uncertainty in Labor-Management Relations Act

Labor Management Relations Practice Group — Fri, 12 Apr 2013 15:04:39 -0800

By Michael Lotito and Ilyse Schuman

On Friday the House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) by a vote of 219-209. The measure was approved largely along party lines, although 10 Republican members did vote against it. This bill would limit National Labor Relations Board activities until at least three members are confirmed by the Senate, President Obama’s recess appointees’ terms expire, or until the U.S. Supreme Court weighs in on the legitimacy of the recess appointments. Specifically, this bill would prevent the Board from implementing, administering, or enforcing any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012 – the date the President sat three members via recess appointment – that requires a quorum. The measure would allow NLRB regional offices to continue to accept and process unfair labor practice charges. In the event additional Board members are validly confirmed, all of the actions carried out by the prior Board staffed with the recess appointees would require review. Continue reading this entry at Littler's DC Employment Law Update.

Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB Seats

Labor Management Relations Practice Group — Tue, 09 Apr 2013 16:01:28 -0800

President Obama has announced his intent to re-name Mark Gaston Pearce as Chairman of the National Labor Relations Board (NLRB), as well as seat Harry I. Johnson, III and Philip A. Miscimarra as new members. It is likely that all three nominees will be presented to the Senate as a package. However, it remains to be seen if, and when, the Senate will act on their nominations. Continue reading this entry at Littler's DC Employment Law Update.

NLRB General Counsel Report Addresses Several Questions Posed at ABA Meeting

Ilyse Schuman — Fri, 29 Mar 2013 06:31:36 -0800

A new Report issued by Acting NLRB General Counsel (GC) Lafe Solomon responds to a number of practice and procedural questions related to Board operations posed by labor attorneys during a recent American Bar Association Midwinter Meeting. The report answers questions related to unfair labor practice charges, Board rulemaking, employer social media policies, and representation election procedures, among other topics. Highlights of the report are as follows:

Social Media and Handbook/Policy Cases

According to Solomon, there are no immediate plans for the Board to issue another report governing social media, at-will employment, confidentiality, or other employer rules/policies. The Board also does not have any plans to develop regulations regarding social media policies.

With respect to the class action arbitration waiver invalidation issue presented in D.R. Horton, Inc., the Report notes that there are 29 pending cases that raise D.R. Horton issues.

Section 10(j) Injunctions

Among other 10(j) injunction statistics of note, twelve 10(j) petitions were challenged on the grounds that the Board’s authorization to issue such injunctions was invalid for lack of a proper quorum. As the U.S. Court of Appeals for the D.C. Circuit recently held in Noel Canning v. NLRB, the three Board recess appointments were unconstitutional.

Representation Elections

The Report responded to a number of questions regarding electronic voting, mail ballots, off-site elections, and the revised representation election rules that have been put on hold. Of note, the Report states that there are currently no additional developments to encourage electronic voting. The Report discusses also the stalled expedited election rule and the status of the Board’s appeal of a federal court finding that the rule was invalid because the Board lacked a quorum when it was issued in December 2011. The document explains that as a result of the Noel Canning decision, the D.C. Circuit has decided to hold all matters in which former Member Craig Becker participated in abeyance. The Report claims that in the interim, “the Board is continuing to work on the aspects of the proposed changes to representation-case procedures that were not disposed of in the December 2011 final rule. It is anticipated that any further amendments will be promulgated in the form of a final rule, but no final decision has been made at this time.”

Bargaining Unit Determinations

The Report highlights a number of cases that have applied the standards set forth in Specialty Healthcare, in which the Board reversed past precedent and adopted a new standard for determining appropriate bargaining units.

Deferral

Several participants asked questions regarding the implementation of the Board’s deferral policy set forth in Memorandum GC 11-05 and Memorandum GC 12-01. According to Solomon, there are 1,682 cases currently in deferral status. Solomon discussed several issues related to the deferral process, how it is applied to grievance settlements, and the impact of the Board’s deferral policy on post-arbitration deferral cases.

Investigation Subpoenas

The GC’s Report provides a table showing the use of investigative subpoenas issued during FY 2012. Of the 666 cases in which investigation subpoenas were issued, merit determinations were made in roughly half (317) of them.

Default Language

In GC Memorandum 11-04 (issued January 12, 2011), the Acting GC provided guidance on the default language that should be incorporated in informal settlement agreements. The Report discusses a number of cases in which administrative law judges have accepted settlement absent the default language over the GC’s objections; circumstances when the default language is modified; and cases in which an NLRB region claimed that the default language was breached.

The Report discusses a number of administrative matters as well, including litigation statistics.

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Board Approves Code of Conduct Policy

Labor Management Relations Practice Group — Wed, 20 Mar 2013 09:15:08 -0800

By Denise Barton Ward

The National Labor Relations Board, Office of the General Counsel, recently issued an Advice Memorandum, finding an employer’s “Code of Conduct” policy did not violate Section 8(a)(1) of the National Labor Relations Act. On the surface, this appeared to be a brief respite in the Board’s trend of finding a myriad of statements, policies, and other handbook provisions unlawful. But closer inspection does not offer as many practical solutions as employers may hope. The Code of Conduct is a 43-page Ethical Business Conduct Guidelines manual. The bulk of the manual sets forth the employer’s business ethics policies and additional business compliance issues, with examples. In addition, the employer presents, distributes, and discusses the material at a mandatory, day-long training and orientation where both employees and union representatives are present. The company provides further online resources, which include a Frequently Asked Questions section, dedicated to clarifying the policy. It is in the online FAQs that the employer defines the scope of the policy by saying it does not apply to employees’ “constitutional, statutory, or other protected rights.” These monumental facts, as well as others, led to the recommendation that the Region dismiss the charge alleging the policy violated Section 8(a)(1) by restricting employees’ Section 7 activities.

While not every employer could sustain all of the components the Board assessed in dismissing the charge, there are useful points within the memorandum. First, the Board affirmed its two-step inquiry to determine if an employer has unlawfully maintained a work rule or policy:

First, a rule is unlawful if it explicitly restricts Section 7 activities. Second, if the rule does not explicitly restrict protected activities, it will nonetheless be found to violate the Act upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Second, citing Lutheran heritage Village-Livonia, 343 NLRB 646 (2004), the memorandum reminds us, and hopefully the Board, that “the Board has cautioned against ‘reading particular phrases in isolation,’ and will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity. Instead the potentially violative phrases must be considered in the proper context.” The Board added that rules should clarify and restrict their scope by including examples so that the rule cannot be reasonably construed as covering protected activity. Query whether this is the unfortunate path the Board is leading employers down: to require multiple pages of explanations in order to find with unmistakable clarity that a rule does not and could not be read to restrict employees’ rights under the NLRA. Only time and further Board decisions will tell.

Court Upholds Employee Terminations Following Strike

Labor Management Relations Practice Group — Thu, 14 Mar 2013 09:23:50 -0800

By Denise Barton Ward

In NLRB v. Special Touch, 2013 U.S. App. LEXIS 4058 (2d Cir. Feb. 27, 2013), the U.S Court of Appeals for the Second Circuit denied a National Labor Relations Board petition for enforcement in a well-reasoned case that employers may view as a sign that someone is listening to their pleas for common sense in labor decisions. The facts are relatively straight-forward. Special Touch subcontracts with nursing and health-related services to provide home health aides. The patient population has either been ordered by a physician to receive home care, has an illness that prevents normal functioning and daily living activities, is homebound, or is receiving in-home health services. The SEIU provided a Section 8(g) notice to the employer of its intent to strike, as is its right. The employer, according to its rights, contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the time period provided by the union for the strike. Approximately 75 aides stated their intent to be absent. When the strike began, however, an additional 48 aides who had not previously stated they would be absent failed to appear for work. At the conclusion of the strike, the 75 who had informed the employer of their absence were reinstated; the other 48 were terminated.

The employer put forth two arguments to justify its actions: 1) the 48 aides failed to follow its call-in rule; and 2) the employees’ failure to report to work created a reasonably foreseeable risk of imminent danger. The court rejected the first argument, finding Section 8(g) trumps an employer’s legitimate business reasons for enforcing an individual notice rule. However, concerning the second argument, the court found the actions of the 48 aides were unprotected because “their uncorrected misrepresentations regarding their plans to strike in response to the pre-strike poll placed forty-eight of Special Touch’s patients in foreseeable imminent danger.”

The court made clear that there is no requirement that an employee tell an employer whether the employee plans to strike, as such would be considered an impediment to engaging in protected activity. What is required is that employees not “mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.” The court reiterated this point several times throughout the opinion and firmly stated this was a minimal burden on the employees. Even more refreshing was the court’s statement that this obligation to take reasonable precautions not to create foreseeable imminent danger extended to all industries and was not tied to Section 8(g) notices or the health care industry.

House Subcommittee Conducts Hearing to Discuss Future of the NLRB

Ilyse Schuman — Thu, 14 Feb 2013 07:04:56 -0800

As a result of the recent federal court decision that President Obama’s three recess appointments to the NLRB were unconstitutional, past and future Board decisions and agency actions are constitutionally suspect and open to judicial challenge, according to lawmakers and panelists during a congressional subcommittee hearing held on Wednesday. The House Subcommittee on Health, Employment, Labor, and Pensions conducted this hearing, entitled: “The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions” to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning v. NLRB decision. Continue reading this entry at Littler's DC Employment Law Update.

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