National Labor Relations Board Issues new Rules Designed to Speed up Union Elections

On December 21, 2011, the National Labor Relations Board (NLRB) issued final amendments to the procedures governing union representation elections. These amendments become effective on April 30, 2012. Employer groups have asserted that the changes allow unions to “ambush” businesses with union elections and force employees to make quick, uninformed decisions about whether to unionize. Union advocates, on the other hand, claim that the amendments will prevent unnecessary litigation and remove what they believe to be unnecessary delays in effectuating an “employee’s free choice” to unionize. More ›

White House Announces plan to fill Three Vacancies on the NLRB through Recess Appointments

On January 4, 2012, President Obama announced his intent to recess appoint three individuals to serve as Members of the National Labor Relations Board. These appointments will return the Board to a full five-member slate for the first time since August of 2010. Time will tell whether these appointments will have a significant impact on future NLRB decisions. However, it is possible that future Board actions may face legal challenges as a result of these recess appointments. The Republican controlled Senate has taken the position that it is not currently in recess and that the White House, therefore, cannot legally make recess appointments.

The NLRB press release provided the following biographies:

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

NLRB Finds Symphony Orchestra Musicians “Employees” and Makes way for Petition

On December 27, 2011, the National Labor Relations Board found that musicians at three different symphony orchestras in Pennsylvania, Massachussetts, and Texas were “employees” and not “independent contractors.” In reaching this decision, the Board found that though musicians have some control over their work, once they are selected, orchestra management has great control over the musicians in terms of their work hours, payment schedules, dress codes, and standards of behavior. This ruling overturns the Regional Director’s 2007 Decision and Order in which she found that the musicians in the petitioned-for bargaining unit were independent contractors, and the dismissal of the representation petition. By virtue of the new rulings, the employees may now proceed with their petitions. 

Misclassifying workers as “independent contractors” when they should be “employees” can be costly for employers. 

Ninth Circuit to NLRB: Reconsider Whether Employee’s Profanity-Laced Tirade was Protected Activity

The Ninth Circuit Court of Appeals has decided that an employee's string of "F-bombs" can be equivalent to a threat of actual violence. More ›

National Labor Relations Board Issues Final Rules on “Quickie” Union Elections

On December 22, 2011, The National Labor Relations Board (the “Board”) is set to publish final amendments to the procedures for union representation elections. These final amendments ( “Amendments”) follow a heated debate with opponents claiming that the changes allow unions to “ambush” employers with union elections and force employees to make quick, uninformed decisions about whether to unionize. Proponents, on the other hand, hailed the Amendments as an effort to end unnecessary litigation and remove unnecessary delays in effectuating an employee’s free choice. Prior to the Amendments, employees have had at least thirty-two (32) days to consider union representation after an election petition is filed. With the Amendments, the regional director has complete authority to set the time-frame for an election, allowing for an election to occur in as little as ten (10) days after an election petition is filed. More ›

Ninth Circuit Enjoins new Hospital Owner from Refusing to Bargain

A company purchasing a hospital required the seller to reject a collective bargaining agreement with a nurse’s union as a condition to the purchase. After the purchase, the company refused to recognize and bargain with the union despite having received a letter from the union indicating that the new owner was a successor employer. The National Labor Relations Board’s (NLRB’s) Regional Director petitioned the district court for and was granted injunctive relief under the National Labor Relations Act (NLRA), resulting in an order for the company to cease and desist from refusing and failing to bargain in good faith. The U.S. Court of Appeals for the Ninth Circuit upheld the injunction, noting that the district court did not abuse its discretion. First, there was a likelihood of success on the merits of the underlying interference and failure-to-bargain allegations. The consistency in the staff before and after the sale created a continuity of operation that established that the successor employer had a duty to bargain. At the time that the new owner declared the hospital “fully staffed,” a majority of the nurses on staff were union incumbents. Second, absent injunctive relief, it was likely that the union would suffer irreparable harm because a delay in bargaining following such a transition in ownership threatens industrial peace and discredits the union in the eyes of employees. Third, these harms outweighed the financial and administrative costs the company would accrue if compelled to engage in good faith bargaining. Finally, the strong showing of likelihood of success on the merits and irreparable harm demonstrated that preliminary relief was in the public interest. Successor employers should carefully consider the number of employees necessary to conduct business operations in normal or substantially normal fashion upon acquiring a new business. This number, which should not be based on uncertain staff expansion contingent upon business growth, is critical to determining whether a union enjoys incumbent status following a change in ownership.

Small v. Avanti Health Systems LLC, No. 11-55563 (9th Cir. Oct. 31, 2011) 

NLRB Issues new rules Affecting Elections

On November 30, 2011, the National Labor Relations Board (NLRB) decided, by a 2-1 vote, to revise several sections of its Rules & Regulations in an attempt to expedite the election process. The NLRB majority stated that their interest was to end what they referred to as unnecessary litigation. A summary of the changes are as follows:  (1) hearing officers can limit the evidence introduced at pre-election hearings to the issue of whether an election should be held; (2) hearing officers can limit the filing of briefs; (3) appeals of a hearing officer’s decisions will be heard after the election is conducted; (4) elections will not be delayed pending an appeal; (5) requests for special permission to appeal will only be granted in extraordinary circumstances; and (6) the NLRB would have discretion on which appeals to hear. Although these rules are not as favorable to union organizing efforts as the Employee Free Choice Act or the initially proposed rule changes, non-union employers should be vigilant because unions have recently demonstrated increased organizing activities.

Employee Fails to Establish race bias on part of Union or Union Representative

An African American employee was terminated after it was determined that he was taking extended break periods and playing pornographic videos in the break room. Through his local union, he pursued a grievance and was represented at a hearing. The employee and his representative argued that other individuals had watched pornographic videos at work and that they had not been terminated, and referenced race-based comments which had been made by employees. After the committee denied his grievance, the employee filed a complaint against the representative and the union, claiming that they had violated 42 U.S.C. § 1981 by deliberately discriminating against him because of his race. The employee claimed that the representative had allegedly failed to argue at the hearing that the employee was terminated due to his race. The U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision, finding that the employee did not establish that he was subjected to an adverse union action, and that he did not demonstrate that he was treated less favorably than employees of other races. The appellate court further found that the employee was properly represented at the grievance hearing, that he had ample opportunity to both present evidence and voice his concerns, and that the representative had, in fact, presented information relating to the race claim.

Wesley v. General Drivers, et al., No. 11-10120 (5th Cir. Oct. 5, 2011)

NLRB Identifies new test for Assessing Bargaining Units in Nonacute Care Facilities

The National Labor Relations Board (NLRB) recently stated that it will no longer apply a special standard when determining whether bargaining units in nonacute health care facilities are appropriate under the National Labor Relations Act. Instead, employees in health care facilities other than hospitals will be subject to the same “community-of-interest” standard that the NLRB utilizes in other workplaces. More ›

NLRB Cannot Award Back Pay to Undocumented Workers Even When Employer Knew of Worker’s Illegal Status

Seven undocumented workers filed unfair labor practice charges against their employer, asserting that their rights under Section 7 of the National Labor Relations Act to be free to bargain collectively regarding working conditions were violated when they were fired after complaining as a group about how a supervisor treated them. The workers settled with the employer. Pursuant to the formal settlement agreement the National Labor Relations Board (NLRB) ordered the employer to reinstate the workers and pay them lost wages. The employer argued that the workers could not be bound by the agreement based on the U.S. Supreme Court’s prohibition on awarding back pay to undocumented workers who violate the Immigration Reform and Control Act (IRCA). An administrative law judge ruled against the employer on the grounds that the employer had violated the IRCA by failing to verify the workers’ work authorization status. On appeal, an NLRB three-member panel unanimously found that because the Supreme Court decision used IRCA-violator-neutral language in its decision, the NLRB had no remedial authority to enforce a back pay award to undocumented workers. However, two NLRB members issued a concurring opinion warning employers that the decision should not be construed as closing the door on other possible monetary remedies for undocumented workers. In light of the concurring opinion, employers should be mindful that, going forward, the NRLB will consider any remedy within the board’s statutory powers to prevent an employer from being unjustly enriched by its unlawful conduct when the employer discriminates against undocumented workers.