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).
Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that a buyer of a company’s assets can’t rely on state law to keep a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets. This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.
The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law. Further, the court explained that employees do not have the power to stop an owner from selling the company. Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.
To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:
- Whether the successor had notice of the pending law suit;
- Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
- Whether the predecessor could have provided relief after the sale;
- Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
- Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.
via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.
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.
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.
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.
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.
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.
via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.
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.