Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

General Counsel Responds to Labor Practitioners’ Questions

Posted in Elections, NLRB, Union Negotiations

Earlier this year, the NLRB’s GC, who is responsible for enforcing the NLRA, continued his annual practice of attending the Mid-Winter Meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section.  The GC answered questions the committee had collected from labor law practitioners around the country.

A few weeks ago, as has become the practice, the GC published a memorandum (pdf) summarizing the questions that were posed to him and the answers he provided.  As in years past, the memorandum covers a wide range of topics that are too broad to cover effectively in this post.

Nonetheless, as I have done in prior years, I have listed some of the more noteworthy topics the memorandum covers below.  The parenthetical references are to the page(s) in the memorandum on which the summarized discussion appears:

  • 35.2% of all unfair labor practice charges with the regional offices of the NLRB are found meritorious. An overwhelming majority of those are then settled. Of those that are fully litigated, the NLRB wins in approximately 85% of the cases (2);
  • The NLRB regularly includes in its settlement agreements language that produces adverse consequences for employers in the event of a default. The GC indicated that regional offices have discretion to limit that language in certain circumstances to the location where the violation occurred and to limit the duration of the language to a six-month period (6);
  • The GC discusses in detail the new standards the NLRB has adopted for both pre-arbitration and post-arbitration deferral (8-10);
  • GC provides an interesting update on Noel Canning. Of the hundreds of cases invalidated by the Supreme Court’s decision, only 30 have not been revisited by the NLRB and in all the cases that have been decided, the result only changed in one of them (14);
  • In representation cases, the union’s win rate for elections held in fiscal year 2014 was 68% in union election cases and 33% in union decertification cases (26);
  • Of particular significance given the recently effective quickie or “ambush” election rules, the GC reported that the medium number of days from filing a petition to having an election was 38 and that 95.7% of all elections were conducted within 56 days of the petition filing (26);
  • The GC also provided some Q&A on the new election rules, covering a number of different issues (28).

Labor professionals with a particular interest in the foregoing and similar issues should review the GC’s memorandum in detail.

Policies on Employee Appearance and Social Media Use Declared Unlawful

Posted in Employee Discipline, NLRB

Recently, the NLRB, in a three-member panel of Chairman Pearce (D) and Members Hirozawa (D) and Johnson (R), ruled on more employee handbook provisions covering an expanse of topics including social media, employee conduct, and dress and grooming.

In Boch Imports, Inc., the NLRB determined that the employer, a car dealer, violated the NLRA by maintaining a social media policy that (1) required employees to identify themselves when posting on-line comments about the employer, its business, or any policy issue; and (2) prohibited employee use of the employer’s logos in any manner.  A dress code/personal hygiene policy that prohibited employees who have contact with the public from wearing pins, insignias, and other message-bearing clothing was also deemed unlawful. Continue Reading

The More the Merrier? A New Lawsuit Against the NLRB’s Election Rule Encounters an Early Setback

Posted in Courts, NLRB, Rulemaking

On Thursday, the NLRB won its first courtroom victory in connection with its “ambush” or “quickie” election rule, which went into effect earlier this month.  It was not, however, in one of the two cases that have been pending for some time, and that we have previously discussed on this blog.

Instead, the NLRB’s victory came in a new lawsuit filed in federal court in Washington, D.C.  In this new case, the employer and three of its employees sought a temporary restraining order (TRO) to prevent the NLRB from applying the provisions of the new rule to an election petition filed by the United Construction Workers Union the same day that the new rule took effect.

The employer – like the trade associations that have brought the other two lawsuits – argued that the rule’s requirement that an employer post a notice of election two days after receipt of the Union’s petition from the NLRB violated its free speech and due process rights.  The employer also argued that the compelled disclosure of employee names and personal information violated the employees’ right to privacy.

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Just When You Thought it Couldn’t Get Worse, it Does: NLRB Protects Facebook Attack on Supervisor

Posted in Employee Discipline, NLRB, Union Organizing

Consider this employee’s Facebook post:

Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!!  F__k his mother and his entire f__king family!!!!  What a LOSER!!!!  Vote YES for the UNION!!!!!!!

In this case, “Bob” was the employee’s supervisor.  The employee (a banquet server) published the post at least 5-10 minutes after the supervisor had instructed him to “spread out” – i.e., move away from other banquet servers – while he was serving a banquet function.  The employee considered the supervisor’s instruction and tone to be disrespectful and demeaning.  Employees generally had concerns about the way management treated them, which was one of the motivating factors for an ongoing union campaign.  In fact, the Facebook post occurred two days before the union election.

In a 2-1 decision, the NLRB recently held that the employer’s discharge of the employee for this Facebook post was unlawful.  In reaching this startling conclusion, the NLRB majority found that the comments constituted protected, concerted activity and union activity in connection with the employees’ attempts to protest and ameliorate what employees believed to be rude treatment by the employer’s managers, including Bob, the subject of the Facebook post.  The NLRB held that the Facebook post was not so egregious as to lose the protection of the NLRA. Continue Reading

NLRB Continues Preparations for Implementing Ambush Election Rule

Posted in Elections, NLRB, Rulemaking

Earlier this week, Region 8 of the NLRB held a training session in Cleveland, Ohio, on the upcoming changes to the procedures for representation cases that will go into effect on April 14, 2015.  This training session was one of more than 35 sessions the NLRB is hosting for practitioners across the country.  Additionally, NLRB employees are receiving similar training on the upcoming changes.

The changes for representation cases include the addition of electronic filing and electronic distribution for representation case documents, increased employee information that must be provided by employers during the process, new deadlines, limitations on the pre-election hearing, and the allowance for consolidated election-related appeals at the conclusion of the process.  At the Cleveland training session, the NLRB made a formal presentation (pdf) and distributed materials (pdf) that are applicable to the changes being made across all Board Regions.

In addition, the NLRB’s General Counsel released earlier this week a memorandum with additional guidance (pdf) on the rules.  Labor professionals with a particular interest in the new election rules will want to review the highly technical memorandum in detail.

Clearly, the NLRB continues to move forward with implementation of the “quickie election” rules.  Labor professionals are, therefore, well-advised to continue preparing for April 14th.  At this point, only a decision adverse to the NLRB by one of the two federal courts handling lawsuits against the rule could possibly lead to a delayed effective date.

Ohio Public Employers Beware: Striker Replacement Workers’ Records Open to Public Records Request

Posted in Courts, Unions

Crowd Carrying Protest SignsJust under a year ago, a teachers’ strike at Strongsville City Schools ended.  The strike lasted nearly two months.  During the strike, the school board hired replacement teachers.  Throughout the strike, these replacement teachers were subject to repeated physical, verbal, and emotional harassment, threats of violence, and—in a couple of rare instances—actual violence.

During the strike, the president of the Cleveland Teachers’ Union made several public records requests for the names, home addresses, and phone numbers of the replacement teachers, eventually filing for a court order in April 2013 to force the school to turn over the information.  The union argued that the school district had a duty under Ohio public records law to comply.  The school district refused, citing a well-established exception regarding public safety.

The strike ended, but the school steadfastly continued to refuse to turn over the information.  After all, the end of a strike doesn’t necessarily mean the end of all the bad feelings surrounding it, right?  Well, in October 2013 the Cuyahoga County Court of Appeals did not agree.  Citing the fact that nothing had happened since the end of the strike, the Court ruled that no one would be in danger anymore.  And, in a recent opinion, the Ohio Supreme Court agreed, ordering the school district to turn over the replacement teachers’ information.

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Obama Vetoes Legislation on Ambush Election Rule

Posted in Rulemaking, Union Organizing

As forecast two weeks ago on this blog, President Obama yesterday vetoed the Congressional Review Act resolution that would have prevented the NLRB from proceeding with the implementation of its ambush/quickie election rules adopted earlier this year.  In his “memorandum of disapproval,” the President referred to the rules as “common-sense, modest” changes.  He also noted that employees have a right to join a union and that “we shouldn’t be making it impossible for that to happen.”  The President also announced that he would host a “summit” in the fall to discuss “increasing the voice and rights of workers” in the U.S.

Of course, the resolution the President vetoed would not have made it “impossible” to join a union.  It would have simply kept in place the current election procedures, under which many American workers have exercised their right to join (or reject) labor unions over the years.

With the President’s action, the only thing standing in the way of the new rule’s April 14 effective date is litigation.  Stay tuned for developments on the outcome of the two pending lawsuits challenging the NLRB’s rule and the President’s summit.

NLRB General Counsel Releases New Guidance on Employee Handbooks

Posted in Employee Discipline, NLRB

Last week, NLRB General Counsel (GC) Richard F. Griffin, Jr. released a new report addressing problematic employee handbook provisions which could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity.  Similar to the three reports previously issued by predecessor Lafe Solomon on social media cases, Griffin offers the report as guidance on his views of “this evolving area of labor law,” with hopes that it will motivate employers to review their handbooks and make any necessary changes.

The 30-page report is divided into two parts.  The first 20 pages offer a comparison of various handbook rules the GC has found unlawful and lawful, some of which the NLRB has likewise found to be lawful and unlawful, with an explanation of the GC’s reasoning.  The last 10 pages of the report analyze a large employer’s handbook rules which the GC recently found unlawful in an unfair labor practice investigation, along with the revised rules implemented by the employer in settlement of the charge.

This report is a good summary and reminder that it is not just an employer’s social media policy that the NLRB is concerned about.  The first part of Griffin’s report identifies eight other types of policies frequently held to chill Section 7 rights, including:  (1) confidentiality; (2) employee conduct toward the company and/or supervisors; (3) employee conduct toward other employees; (4) interactions with third parties; (5) protection of employer logos, copyrights and trademarks; (6) photography and recording; (7) leaving work; and (8) conflicts of interest.

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UPDATE: Challenges Mount, But Obama Administration Stands Firm on Quickie Election Rule

Posted in Elections, NLRB, Union Organizing

Regular readers of this blog are already aware of the uproar over the NLRB’s release of its “quickie” or “ambush” union election rule and the litigation it has spawned in both D.C. and Texas federal courts.  The rule will bring a major overhaul to the manner and timeframe in which union elections are held.

As litigation has heated up, so has the political infighting:  the NLRB and the Obama administration face resistance in both houses of Congress.  On March 4, the Senate passed a Congressional Review Act resolution that would stop the NLRB from implementing their rule by a 53 to 46 vote, split largely down party lines.  Just yesterday, the House passed the same measure by a vote of 232 to 186.  The only break from party line voting were three Republican representatives who joined all Democrats to oppose the resolution.  The President is expected to veto the resolution, which Congress is unlikely to have the votes to overturn.

Meanwhile, back in court, the parties in both lawsuits have filed motions for summary judgment and/or dismissal.  The NLRB argues that its rulemaking is entitled to extraordinary deference, that its rules need only be rational and well-explained, and that all of the new rule’s changes are lawful.  Representatives of employers in both cases argue the opposite, saying that the rule exceeds the NLRB’s statutory authority and calling it “arbitrary and capricious” and “an abuse of agency discretion.”

Lawyers representing management-side interests in both cases are particularly incensed by the NLRB’s requests for extensions of time to answer their summary judgment motions, calling it nothing more than a stalling tactic designed to delay any decision on the merits of the rule until after its April 14 effective date.  The NLRB has in the past voluntarily delayed the effective date of a rule when faced with a substantive court challenge.  But here, it chose not to.   Both courts granted these extensions in mid-February.

Finally, at the NLRB, it remains full steam ahead with the rule.  Training of regional office staff is or soon will be underway.  Various regional offices are offering sessions to labor professionals as well.  For those of you in Ohio, Region 9 is holding its information meeting on April 8 in Cincinnati and Region 8’s meeting will take place on April 6 in Cleveland.

Suffice it to say, this issue will be coming to a head sometime very soon.  The political opposition will likely go nowhere, given the President’s expected veto.  The litigation may not yield the same victory that employers saw with the rejection of the NLRB’s prior effort to revise its election rule.  Thus, labor professionals should consider continuing to prepare for April 14.  Stay tuned to vorysonlabor.com for further developments on this issue.

Wisconsin Becomes 25th State to Adopt Right-to-Work Law

Posted in Legislation, Union Membership

Two of my colleagues published an alert earlier today on the new Wisconsin right-to-work statute, signed into law this morning by Gov. Scott Walker (R).  Labor professionals with unionized operations in Wisconsin will want to pay special attention to how the law interacts with current collective bargaining agreements.