The Chamber of Commerce v. NLRB Decision

In most situations, the NLRB must have a quorum of three members in order to act.  The touchstone of this requirement is that the three members must be present.  Two members cannot unanimously issue a rule without the presence of a third member, even though a 2-1 vote would be valid.  Even if the third member abstains, the rule is valid.  It is only if the third member simply is not there, that the NLRB lacks authority to act.  NLRB member Brian Hayes participated in and opposed the quickie elections rule, but he did not participate in the voting on the final rule, which took place electronically.  The court held that Hayes was not “present” for the final vote.  Therefore, there was no quorum and the rule is automatically invalid.  The court did not consider the substantive challenges to the rule.

What This Means for Employers

The quickie elections rule substantially shortened the timeframe between when a union files a recognition petition and when an election is held.  The result was that unions could ambush employers and have an election before the employer could express its views to employees.  With the rule in abeyance, the regular timelines apply.

Because the court did not rule on the substantive challenges, the NLRB can vote on the rule again, this time with a quorum.  If this happens, the rule will likely be challenged again and a court will have to decide whether the substance of the rule is valid.

The NLRB has been extremely active lately, particularly with regard to non-unionized employers.  While the posting requirement and the quickie election rules are now on hold, employers must be aware of the NLRB’s recent interest in social media policies and related discipline.  If the NLRB suffers more blows in the rulemaking process, it may choose to focus its attention on enforcement instead, taking the lead of the Obama administration!

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

As if all of that weren’t enough, recent reports have indicated the NLRB plans to revisit a proposal it abandoned last year to require employers to surrender employees’ home email addresses and phone numbers to union organizers.  The law already requires employers to turn over employees’ names and home addresses.  Employees do not have a say in the matter.

The U.S. Chamber of Commerce has vocally opposed the measure.  Representative Sandy Adams of Florida took aim by introducing the Keeping Employees’ Emails and Phones Secure Act, which would prohibit the NLRB from requiring employers to turn over this information.  We’ll keep you posted on whether the legislation passes and whether the NLRB follows through on the plan.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Saving employers from the uncertainty of whether or not to comply with the April 30, 2012 implementation deadline, the D.C. Circuit issued an emergency injunction pending the outcome of its appeal.  The injunction orders the NLRB not to enforce the posting requirement until the appeal is resolved.  Oral argument is expected in September, so it is unlikely employers will need to post the notice before the fall.

Will the poster requirement ultimately be upheld?  Will the NLRB back down on this issue?  Will these court decisions discourage the NLRB from more power grabs?  Only time will tell. 

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Generally, employers do not have a duty to monitor employees’ private communications.  However, the Espinoza case demonstrates that once an employer becomes aware of off-duty harassment, it may have a duty to act to stop it if it can be tied to the workplace.  In Espinoza, the fact that some harassment also took place at work was sufficient to render the employer liable for the off-duty harassment as well.

In the face of Espinoza, we have the National Labor Relations Board’s (“NLRB”) “Facebook firing” cases which are occurring around the country.  In these cases, employers were held liable for firing employees who used the Internet to criticize their employer and/or their managers.  As a result, many employers are afraid to discipline employees for online conduct.  This dilemma is real but must be overcome.  The NLRB has endorsed the use of social media policies that prohibit harassment if they are written properly, but “properly” seems to be a moving target.  An employer who disciplines or terminates an employee for online harassment (especially based on a protected class such as age, sex or race) of another employee is unlikely to run afoul of the labor law but your case must be built properly.  Staying abreast of the current developments is a must in this area.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment as well as counsel on employment law issues in general and labor law issues. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The most important part of the court’s decision for employers is that the poster requirement still stands.  Unless there are further delays or another legal challenge prevails, employers must display the poster by April 30, 2012.  But the court found the NLRB overreached when it issued a rule stating that failure to display the poster is automatically an “unfair labor practice” in violation of the National Labor Relations Act.  This does not mean employers are free to ignore the poster requirement, however.  On a case-by-case basis, the NLRB may find that the failure to post the notice is an unfair labor practice.  The court also rejected a portion of the rule that would automatically stay the six-month statute of limitations if an employer did not display the poster.  Once again, the court held that the NLRB could make this decision on a case-by-case basis. These are major victories on the penalty side of the issue. 

Nothing in the court’s ruling changes what employers need to do.  You must be prepared to put up the poster by April 30, 2012.  You can download a copy of the poster here.  Remember to display the poster in any language spoken by at least 20 percent of your employees.  There remains the possibility that another legal challenge will succeed, that this one will be appealed, or that the NLRB will once again delay the compliance deadline.  We’ll keep you posted.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In Camelot Terrace, the NLRB upheld an administrative law judge’s order requiring an employer to pay litigation costs to both the union and the NLRB because the litigation resulted from the employer’s bad faith in refusing to bargain with the union. The employer was also ordered to pay the costs the union incurred in the collective bargaining process. This is not the first time the NLRB has ordered an employer to pay litigation costs, but it is very rare and appears to be unjustifiable under the law. There is no word yet on whether the employer will appeal.

The employer in Camelot Terrace engaged in what the NLRB described as a “cat-and-mouse game” by restricting the dates and length of bargaining sessions, repeatedly canceling or shortening sessions, reneging on or withdrawing from tentative agreements without good cause, and refusing to bargain on economic subjects. The employer also acted in bad faith during the litigation by reneging on a settlement agreement and committing perjury.

Even though the NLRB’s action likely exceeded its authority, this is a sign of our contradictory times. The populace (including legislatures like Indiana’s, which just passed a right-to-work law) is becoming more conservative toward unions while the NLRB is bending over backward to support unionization. Until the Supreme Court weighs in on the NLRB’s actions, employers need to remember that toying with unions or the NLRB is inviting a harsh reply from the NLRB. Union-free employers can adopt strategies to remain union-free without going to the extremes that we saw in Camelot Terrace.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Such legislation is a sign of the dwindling support for unions in the United States.  Not only is membership down to 6.9 percent in the private sector, but more and more legislatures are passing anti-union legislation, whether it be right-to-work laws or changes to benefit terms unionized state workers receive.  The trend is clear, but how far it will go is the question.

The victory in Indiana may be the beginning of a new era for the Right-to-Work movement.  Indiana is the first state in more than a decade to pass a right-to-work law.  Most of the 23 state right-to-work laws were passed in the 1940’s and 1950’s.  More significantly,  Indiana is the first state in the highly unionized manufacturing-heavy “Rust Belt” to enact a right-to-work law.  Plans are now in the early stages to enact similar legislation in Ohio, Michigan, and Minnesota.  The real litmus test is if these proposals can become law.  We will keep you informed.

Brody and Associates regularly advises employers on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

There are seven substantive changes:

• A pre-election hearing is only “to determine if a question of representation exists” and thus related issues should be handled post election;
• Pre-election Hearing Officers have the authority to limit evidence about voter eligibility and inclusion;
• Pre-election Hearing Officers have discretion over what post-hearing briefs can be filed;
• Eliminates the recommendation that the Regional Directors should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, which provided the Board an opportunity to rule on a pre-election request for review before the election;
• Narrows the circumstances under which special permission to appeal to the Board will be granted; and
• Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides the Board has discretion as to whether to review any remaining post-election disputes.

On their face, the new rules merely limit the issues that can be resolved pre-election.  In fact, this streamlining will seriously limit employers’ opportunity to explain the downsides to unionizing because most elections will occur within two to three weeks of a petition being filed.  However, unions will continue to have as much time as they want to campaign before requesting an election.  This is the true unevenness of this labor playing field.

Legislative and judicial challenges to the new rule are underway.  At least three lawsuits were filed in December.  They are being consolidated into one case.  The House of Representatives passed the Workplace Democracy and Fairness Act, which would require a 35-day period between the filing of an election petition and the representation election.  It would also require a two-week waiting period before a hearing on the petition could be held.  Senator Mike Enzi is threatening to overturn these rules by filing a challenge under the Congressional Review Act.  If all these challenges fail, the rule will go into effect on April 30, 2012.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Groups as varied as the Motor & Equipment Manufacturers Association, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have lodged legal challenges to the new poster.  The Motor & Equipment Manufacturers Association, for instance, argues the poster violates section 8(c) of the 1947 Taft-Hartley Act, a key employer-friendly amendment to the National Labor Relations Act.  Section 8(c) prevents the NLRB from attempting to take away employers’ rights to free speech even when unfair labor practices were also found.  Other claims include that the new notice-posting mandate unlawfully compels employers to promote the NLRB’s agenda and infringes upon the free speech rights in the United States Constitution, which protect employers from being compelled to deliver the Government’s message.  Despite these challenges, the NLRB claims all of these issues will be resolved by the updated April 30, 2012 effective date.

In other NLRB news, President Obama made three recess appointments to the Board, two Democrats and one Republican.  The new members are Sharon Block, previously the Deputy Assistant Secretary for Congressional Affairs at the Department of Labor; Richard Griffin, an attorney for labor unions such as the AFL-CIO and the International Union of Operating Engineers; and Terrence F. Flynn, a lawyer who specializes in the NLRB’s guiding law, the National Labor Relations Act.

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.