Category Archives: NLRB

SCOTUS considers whether union neutrality agreements violate Labor Law

The U.S. Supreme Court considered whether “neutrality agreements” between unions and employers violate federal labor law.  Neutrality agreements are contracts between labor unions and employers under which the employers agree to support a union’s attempt to organize its workforce.

In Unite Here Local 355 v. Muhall, the Supreme Court will decide whether these agreements are a “thing of value.”  This definition matters because under Labor Law the exchange of things of value between a labor union and an employer are a felony.  Further, it is a crime for a union to request, demand, receive or accept or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by the statute.

Under the agreements, businesses help labor unions in organization efforts in exchange for labor peace, the New York Times reports. The Washington Post offers some examples: An employer might grant access to employee lists or agree to remain neutral in exchange for union concessions, such as giving up the right to strike.

The 11th Circuit Court of Appeals held that it was a “thing of value” because it includes tangibles and intangibles.  In other words, while the employer and the union can agree on the ground rules, the assistance in this case would constitute payment.

The assistance the 11th Circuit Court of Appeals referred to was as follows.  The casino (employer) agreed to allow union access to worker information and casino grounds, and to allow a unionization vote by cards collected from workers, rather than a secret ballot. The union agreed to refrain from picketing or striking during the union drive.

It is important to note that the 11th Circuit Court of Appeals failed to take into consideration whether there was monetary value.

What is mind boggling is the fact that neutrality agreements are not only common, but they help avoid conflict and encourages the practice and procedure of collective bargaining.  The preamble of the National Labor Relations Act supports labor peace and the encouragement of the practice and procedure of collective bargaining.

The outcome of this contentious and heavily litigated case remains unknown.  The Supreme Court, specifically Justice Roberts, focused on the card-check portion of the neutrality agreement.  Justice Kagan focused on how the benefits bargained by the union benefit employees and unions.

via SCOTUS considers whether union neutrality agreements are improper ‘thing of value’.

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Filed under Appellate, civil rights, courts, discrimination, employment, federal, labor, legal decision, NLRB, union

Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

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Filed under federal, labor, Minnesota, NLRB, Pending Legislation, rules, union

D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

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NLRB Overrules Anheuser-Busch, Favors Balancing Test on Witness Statements

The National Labor Relations Board (NLRB) on Piedmont Gardens, 359 NLRB No. 46, overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation.

By overruling Anheuser-Busch, 237 NLRB 982 (1978), and applying instead the Detroit Edison balancing test, the NLRB found that respondents violated the NLRA by failing to provide the witness statements.  In the Detroit Edison balancing test, the board will balance the union’s need for relevant information against the legitimate and substantial employer’s interest in keeping information confidential.

via Adjunct Law Prof Blog: NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements.

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NLRB charge alleging illegal picketing at Wal-Mart held in abeyance

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW.

In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards.

The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.

via NLRB charge alleging illegal picketing at Wal-Mart held in abeyance | NLRB.

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More on NLRB Recess Appointments

There is much talk on the D.C. Circuit Court of Appeals’ ruling that the President’s NLRB recess appointments was unconstitutional.

Shortly thereafter, the NLRB released a press release stating:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld.  It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other court of appeals.

Below is a compilation of pending cases, as put together by SCOTUS Blog by Lyle Denniston:

  • D.C. Circuit — fifteen other challenges pending, most if not all of which will be decided on the basis of last Friday’s ruling.  The cases are either in the briefing stage, or awaiting a briefing schedule.
  • Second Circuit — one case, in briefing.
  • Third Circuit — three cases, one set for argument March 19 NLRB v. New Vista Nursing, docket 11-3440; one case being held for that case, another in briefing.
  • Fourth Circuit — four cases, one set for argument March 22 NLRB v. Enterprise Leasing Co. SE, docket 12-1514; others in briefing.
  • Fifth Circuit — one case, in briefing.Sixth Circuit — one case, in briefing.
  • Seventh Circuit — two cases: one decided, but not on the merits of the appointments power; one in briefing.Ninth Circuit — one case, in briefing.
  • Eleventh Circuit — one case, in briefing.
  • The only federal appeals courts in which no such cases are pending are the First, Eighth, and Tenth.

via Spreading challenge to appointment power UPDATED : SCOTUSblog.

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NLRB Recess Appointments Unconstitutional

Today, the D.C. Circuit Court of Appeals held that the NLRB recess appointments were unconstitutional.  It goes without saying that the possible ramifications of this decision, which may impact other NLRB decisions.

In Noel Canning, the NLRB held that the issue presented was mooted because the NLRB recess appointments were unconstitutional.  In its decision, the court essentially stated that the Senate wasn’t in recess.  The court reasoned that “recess” occurs when Congress is not in one of its regular two or three sessions.

via Workplace Prof Blog: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional.

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NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material,substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 2004 emphasized.

This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today.

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed.

Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system.

Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment—may properly be deferred until after they are imposed.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

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Arbitration Must-Have Book

Elkouri & Elkouri is the must-have books for attorneys that handle arbitrations in the labor field.

The 7th edition is edited by Kenneth May and is available for $325.  BNAs web site describes this book as follows:

The new Seventh Edition provides additional analysis that enhances the usefulness of the volume and incorporates major points of interest to labor relations practitioners. In-depth coverage of critical topics includes:

  • Arbitrators consideration of external law in labor arbitration
  • Legislation and litigation developing standards for evidentiary privilege as it relates to union shop stewardsArbitrators views on threats and violence
  • Reconsideration of the continued viability of the plain meaning rule
  • New case law on the unauthorized practice of law as it relates to labor arbitration
  • Revision of the discussion of state and local government arbitration and interest arbitration in light of recent changes in state law

via Adjunct Law Prof Blog: Book Review Highlight Elkouri and Elkouri How Arbitration Works 2012.

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NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

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Filed under labor, legal decision, NLRB, Privacy Rights, union