Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

Among other ballot initiatives Ohio voters will have a chance to pass on this November is Issue 2.  It asks whether the law reforming Ohio's public sector collective bargaining law, Senate Bill 5, should be rejected.

Polls on Issue 2 have not been favorable for those who want to keep Senate Bill 5.  The gap is, however, decreasing according to the latest poll conducted by Quinnipiac University in Connecticut.  In the last poll conducted in July, voters favored repeal of the law 56% -  32%.  The more recent numbers show repeal is still favored, but by a margin of 51% - 38%.

As readers of this blog know, the law contains a number of different elements, including limits on health care costs, merit-based pay, prohibition on strikes by public employees, and an elimination of "fair share" fees.  The poll appears to have tested some of these parts of the proposal, finding majority support for health care cost containment measures and merit-based pay, but no majority support for prohibiting strikes.  The fair share fee question does not appear to have been polled.

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Earlier this year, the DOL proposed a rule that would change many decades of interpretation of a federal law known as the Labor-Management Reporting and Disclosure Act (LMRDA).  The effect of the proposal is to radically expand the definition of "persuader" activities while limiting the definition of "advice" activities.  The distinction is very significant:  if an employer and an advisor -- like a lawyer or consultant -- are engaged in the former, each must file reports with the federal government disclosing, among other things, the agreement to perform persuader activities, including the financial terms of that agreement.

The DOL took comments on its proposed rule, even extending the comment period.  That period closed last week.  The proposed rule elicited nearly 6,000 comments, including submissions from the U.S. Chamber of Commerce and many other business and labor groups. 

Indeed, in a sign of just how significant the proposed rule is, even the American Bar Association (ABA) submitted comments to the rule.  The ABA comments (pdf) focus on the impact of the proposed rule on the attorney-client relationship, and the ability of labor lawyers to provide advice to their clients.  The ABA notes that, with respect to lawyers, the new interpretation "would essentially nullify the advice exemption contained in the statute and thwart the will of Congress. . . ."

Labor professionals should monitor the developments on this important, proposed rulemaking.  The impact of these regulations on employer speech during a union organizing effort could be quite significant.  If the DOL's proposed interpretation is adopted, labor professionals will need to be prepared.  Consulting now with labor counsel is an important first step.

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If the lawsuits of three different business groups are successful, the federal courts will have the last say about the validity of the NLRB’s notice posting rule. The National Association of Manufacturers (NAM), the National Federation of Independent Businesses (NFIB), and the U.S. Chamber of Commerce (Chamber) are each parties in three different lawsuits pending in federal courts seeking injunctions against the NLRB’s rule.

The Chamber’s lawsuit (pdf) is representative of the arguments raised against the notice posting. For example, the Chamber asserts that the NLRA doesn't give the NLRB the authority to promulgate a notice posting rule in the first place. This is one of the arguments that Member Hayes (R) made in his dissent to the notice of proposed rule-making many months ago. The Chamber also asserts, among other things, that the rule is not a balanced view of employee rights under the statute and that it violates employers’ First Amendment right to freedom of speech.

The Chamber’s lawsuit was the most recent one filed, and the Chamber picked South Carolina as the jurisdiction in which to file. The Chamber made an interesting forum choice given the NLRB’s pending complaint against Boeing’s new facility in that state. The NFIB and NAM both filed their complaints in the District of Columbia.

For the labor professional, the progress of these suits will be important to monitor. One or more of the courts could issue a preliminary injunction against the enforcement of the rule. The practical effect of such a development would be to delay the obligation to post the notice the rule requires.

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By Nelson Cary and Ashley Manfull

On September 2, 2011, an NLRB Administrative Law Judge (ALJ) issued the first decision on the question of employees’ Facebook posts. The decision, applying a liberal interpretation of protected, concerted activity under the NLRA to the online activities of employees, comes on the heels of the Office of the General Counsel’s report on social media cases issued last month. 

In Hispanics United of Buffalo, Inc. and Carlos Ortiz, ALJ Case No. 3-CA-27872, the ALJ ruled that five employees of a non-profit organization were unlawfully terminated for engaging in protected, concerted activity based on a series of Facebook posts which were made outside the workplace during non-working hours. The facts of the case are summarized in a prior blog post.

In finding a violation, the ALJ found the employees’ Facebook discussion constituted protected, concerted activity under Section 7 of the NLRA. When the first employee enlisted the support of her fellow employees to respond to criticism regarding their job performance, she was engaged in concerted activity just as much as “ordinary group activity” that does not take place online.

Applying a very liberal interpretation of concerted activity, the ALJ ruled that it was irrelevant that the employees were not trying to change their working conditions and did not communicate their concerns to their employer. The ALJ held that it was sufficient that the employees were taking a first step towards group action to defend themselves from a coworker’s accusations which they “could reasonably believe” the coworker may communicate to management.

Ultimately, the ALJ concluded that by discharging the five employees, the employer prevented them from taking any further group action regarding their coworker’s criticisms. It was irrelevant that there was no express evidence that the employees even intended to take further action in response to the criticism. The ALJ ordered HUB to reinstate the five employees with full back pay.

Under the NLRB’s process, the ALJ’s decision is now subject to appeal to the full NLRB. Thus, it is possible that the NLRB might rule differently, or the case may be settled before the NLRB has an opportunity to issue an opinion that would provide firm guidance. Nonetheless, the ALJ’s opinion is one that could be followed by other ALJs confronted with similar questions.

Practicing labor professionals know that issues surrounding employee rights with respect to social media are gaining increased attention. This is an area of the law that will continue to develop as more complex issues arise. Before addressing any issue with an employee regarding the use of social media during non-working hours, labor relations professionals should keep these recent developments in mind and thoroughly analyze the possibility of protected, concerted activity challenges to employee discipline.

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A business that purchases or merges with a company whose employees are represented by a union must navigate a labor law minefield.  The NLRB recently planted another mine in that field. In UGL-UNICCO Service Co., 357 N.L.R.B. No. 76 (2011) (3-1), the NLRB restored a modified version of the "successor bar" doctrine.  If the "successor bar" applies, the union that represented the seller's employees is entitled to a reasonable period of time in which its majority status cannot be challenged.  In addition, employers may not unilaterally withdraw recognition from the union based on a claimed loss of majority support.  This is the third of three major decisions that were included in the flurry of activity at the end of Chairman Liebman's term last month.

The NLRB's ruling marks another swing of the pendulum in an area that has seen substantial doctrinal shifts by the NLRB over the years.  This time, the NLRB not only reversed a 2002 ruling, however, but went further to define a "reasonable period" in certain situations.  The applicable time period for the bar will now depend upon the buyer's actions with respect to terms and conditions of employment.  If the buyer expressly adopts the existing terms and conditions of employment as the starting point for bargaining, without making unilateral changes, the "reasonable period" will be six months.  If the buyer exercises its right to set initial terms and conditions of employment (a decision that must navigate its own legal minefield), the "reasonable period" will be a minimum of six months and a maximum of one year.  In both of these situations, the period is measured from the date of the first bargaining meeting between the union and the employer.

Finally, the NLRB majority also modified the time-period for the "contract bar" in the successorship context. The contract bar is the period of time that a union is protected from an effort to test its majority status after it has negotiated a labor agreement with an employer.  The NLRB held that the contract-bar period applicable to election petitions filed by employees or by rival unions will be a maximum of 2 years, rather than the current 3-year maximum, but only in certain situations.

In a lone dissenting opinion, Member Hayes (R) argued that the majority’s decision was inconsistent with, and even an attack on, U.S. Supreme Court precedent.  He noted that the majority's decision elevates protection of incumbent unions over employee free choice.  The majority changed the law, in Member Hayes' view, "to service the ideological goal of insulating union representation from challenge whenever possible." 

For the labor professional involved in a merger or purchase situation, the NLRB's decision further complicates an already complicated area of the law.  Careful planning by the buyer early in the process will be necessary to ensure that the buyer's legal obligations are satisfied.

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By Nelson Cary and Brad Gibson

With the current NLRB, it is good to be a labor union around Labor Day.  Last year, the NLRB handed out an expanded right to engage in "bannering" without running afoul of the NLRA.  This year, the NLRB relieved unions, and the employers who voluntarily recognize them, of the possibility that the majority support for the union might be put to a test in an NLRB-conduct, secret ballot election soon after recognition.  This is the second of three major decisions issued during the flurry of activity at the end of Chairman Liebman's term.

The NLRA permits an employer to voluntarily recognize a union that establishes majority support among the employer's employees.  This is sometimes referred to as "card check."  One change EFCA would have brought is to make such recognition mandatory, if the union sought it, rather than voluntary, as the law is today.  The law used to provide that the voluntary recognition could not be questioned for a "reasonable period of time."

In 2007, confronted with the issue of voluntary recognition and concerned about the protection of employee free choice, the NLRB modified the recognition bar doctrine. In Dana Corp., 351 N.L.R.B. 424 (2007), the NLRB permitted a recognition bar only after a 45-day "window period" expired following voluntary recognition.  During this time, employees -- or a different union -- could file an election petition if at least 30-percent of the employees expressed support. In order to start the 45-day period, employers had to post an official NLRB notice informing employees of their newly created right to seek an election within the 45-day period to oust the lawfully recognized union.

In Lamons Gasket Co., 357 N.L.R.B. No. 72 (Aug. 26, 2011), the NLRB determined in a 3-1 decision to restore a complete "voluntary recognition bar" that blocks any challenge to the union’s majority status for a "reasonable period of time" following the employer’s voluntary recognition. Among other arguments, the majority noted that for 41 years, the law had never required a notice or window period until the NLRB imposed one in the Dana decision. Lamons Gasket expressly overrules Dana.

The NLRB did not stop, however, with merely overruling its precedent.  The majority went on to clarify the phrase "reasonable period of time" as used in the recognition bar context. This period of time will "be no less than 6 months after the parties’ first bargaining session and no more than 1 year." During this period, no employer, employee, or union may petition the NLRB for a secret ballot election and the employer may not withdraw recognition from the union. The specific length of this voluntary recognition bar depends on a multifactor test, which includes:

1. whether the parties are bargaining for an initial contract;
2. the complexity of the issues being negotiated and the parties’ bargaining processes;
3. the amount of time elapsed since bargaining commenced and the number of bargaining sessions;
4. the amount of progress made in negotiations and how near the parties are to concluding an agreement; and 
5. whether the parties are at impasse.

In a lone dissenting opinion, Member Hayes (R) accused the majority of making a "purely ideological choice" to overrule Dana without reasoned justification.  He attacked the recognition bar doctrine as not supported by the NLRA and dismissed the majority's arguments for overruling Dana.

For the labor professional, the decision has mixed implications.  As previously discussed on this blog, whether this is a positive development depends on the circumstances in which an employer finds itself.  If there are reasons why voluntary recognition is appropriate for an employer, the decision may be welcome news.  It removes the uncertainty associated with the Dana notice.  For other employers, the decision is another step towards removing obstacles to union organizing outside the confines of the NLRB secret ballot election process, and further encourages "top down" organizing (e.g., through the use of "corporate campaigns").

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By Nelson Cary and Micah Dawson

After identifying issues neither the union nor the employer raised, and inviting interested parties to submit briefs on those issues, the NLRB has issued a union-friendly decision.  In the process, the NLRB has reversed a 20-year-old precedent for bargaining unit determinations in nursing homes, rehab facilities, and other non-acute health care facilities.  This is one of three major decisions that were included in the flurry of activity at the end of Chairman Liebman's term.

In Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83 (Aug. 26, 2011) (pdf), the NLRB found that a group of Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. This decision overrules the NLRB’s 1991 decision in Park Manor Care Center, 305 N.L.R.B. 871, which had adopted a special approach for bargaining unit determinations specific to nursing homes, rehabilitation centers, and other non-acute health care facilities.

The employer in Specialty Healthcare had argued for a facility-wide "service and maintenance unit" that included non-professional employees such as cooks, dietary aides, activity assistants, maintenance assistant, and the medical records and data entry clerks, among many other job titles.  In other words, the employer argued that the unit include those whom it believed had been typically included in approved units in nursing homes under Park Manor.

In a 3-1 decision, the NLRB held that Park Manor was "obsolete" because it relied, in part, on an administrative rulemaking record from the late 1980's. In doing so, the NLRB substantially redefined the standard for an appropriate bargaining unit.  Under the NLRB's new rule, where an employer argues that a proposed bargaining unit inappropriately excludes certain employees, the employer will now be required to prove that the excluded employees share "an overwhelming community of interest" with employees in the proposed unit. 

Member Hayes (R), as he has done multiple times since his Senate confirmation, issued a dissenting opinion. He rejected the majority's conclusion that Park Manor was obsolete as not supported by any evidence in the record of the case.  He further argued that the new "overwhelming community of interest" test was not supported by circuit court or prior NLRB rulings.  He concluded by discussing the "vast practical ramifications" of the majority's ruling, including encouragement to unions to "engage in incremental organizing in the smallest units possible."  This new standard, combined with the NLRB’s proposed rule to expedite the union election process, will make it "virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through [NLRB] litigation."

The implications for the labor professional are significant:

• First, the decision permits unions to single out a particular job classification, convince a majority of those in that job classification to vote for the union, and then file a petition seeking to represent only those employees. 
• Second, it raises the possibility that many different unions could organize different job classifications. Thus, a nurses union could represent nurses, a service employee union could represent janitors, and yet another union could represent dietary aides. The possible proliferation of bargaining units could pose substantial challenges for labor professionals.
• Third, while the NLRB decided this case in the non-acute health care setting, it is easy to see the new standard facilitating a renewed era of union organizing.

Employers, and certainly those in the non-acute healthcare industry, should review the decision and consider its implications for their unique circumstances.

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