Employers Must Post Notice of Labor Rights Under NLRB Rule Taking Effect November 14, 2011

By Thomas A. Lenz

In an announcement dated August 25, 2011 the National Labor Relations Board confirmed the approval of a final rule which requires all employers under NLRB jurisdiction to post a Notice which will inform employees of their rights. Those rights include to form and join unions and to engage in concerted activities for mutual aid and protection, which may include group protests over working conditions or demands for workplace change through social media.  A fact sheet with additional information about the rule can be downloaded by clicking here.

 

Employers will be required to post a hard copy Notice which they can obtain from NLRB offices or by download from www.nlrb.gov when the Notice becomes available.  The NLRB indicates the Notice will be available "on or before November 1, 2011."  Where an employer communicates with its employees by electronic means, such as Internet or Intranet, the employer may have a duty to post the Notice electronically as well.

 

The NLRB intends to view an employer's failure to post the Notice as an unfair labor practice. This is an important point, as failure to post the Notice could put an employer at an immediate disadvantage if the employer faces a union organizing campaign and the union makes an issue of the Notice during the campaign. Charges are often used as leverage points to put a targeted employer under additional scrutiny and threat of prosecution while an election case is in progress.

 

Many employers who are unfamiliar with the NLRB or who have not dealt with it in many years may doubt that they are subject to NLRB jurisdiction. Those employers should consider carefully their course of action. NLRB has exercised a broad view of its jurisdiction, with dollar volume standards that have not changed in decades. Absent a detailed review with legal counsel establishing otherwise, the vast majority of private sector employers should consider themselves subject to NLRB and expect to have to comply with the rule.

 

The rule will parallel in large part a Department of Labor rule implemented for contractors who work with the federal government.

 

It is expected that the NLRB rule will face legal challenge in the courts.  Some employers may take the view that it is best not to post or educate a non-union workforce on the right to unionize. That approach will have risks. A safer approach may be to post the Notice pending an outcome on such challenges. Management retains its rights to educate employees, if and when it sees fit to do so, about union organizing and the pros and cons of doing so provided that the message does not violate NLRB standards through threats or coercion.

 

Private sector employers are encouraged to seek guidance on how this new NLRB rule will impact their business and communications with employees.

NLRB Ruling May Encourage Employee Dishonesty

By Thomas A. Lenz  

Awards of backpay in unfair labor practice cases are intended to make whole an employee who suffers a loss of earnings because of an unfair labor practice.  Because awards of backpay are typically limited to an employee's actual loss, an award of backpay is usually offset by any post termination earnings.

In Atlantic Veal & Lamb, Inc., 355 NLRB No. 38 (May 28, 2010), the National Labor Relations Board ruled in favor of a terminated employee claiming he was terminated as a result of engaging in protected activity.  At issue was the question of whether the administrative law judge who initially considered the matter properly determined that the employee's claim for backpay was barred because the employee falsified his post termination employment history on a mortgage application. 

The administrative law judge hearing the matter initially agreed with the employer that the employee's falsification of his post termination employment history should bar the employee from being awarded backpay for the time period at issue.  The administrative law judge expressed concern that the employee's fasification of his post-termination employment history would hinder an accurate determination of the employee's actual post-termination earnings for purposes of applying those post-termination earnings as an offset against an award of backpay.

On review, a three-member panel of the recently reconstituted NLRB reversed the administrative law judge's decision and remanded the matter back to the administrative law judge for further proceedings.  The NLRB panel ruled that the administrative law judge gave too much significance to the discrepancies between the information the employee provided on his mortgage application and the information the employee submitted as part of his claim for an award of backpay and ruled that the employee should not be barred from receiving an award of backpay for the time period in question.  The NLRB panel also criticized the administrative law's judge's credibility determinations and the impact of those credibility determinations on what may be a broader scope of backpay liability than the NLRB panel would consider appropriate.  

The NLRB panel's instructions to the administrative law judge will very likely increase the employee's recovery in the case as the discrepancies and credibility issues will weigh less heavily on backpay calculations.

More broadly, the ruling stands to reward employee dishonesty and reward incomplete or inconsistent employee accounts of their post termination employment and earnings.  This may encourage employees and unions to increase their resort to the NLRB to challenge employment related decisions and to enhance leverage and employer exposure during organizing campaigns. 

NLRB Helps Resolve Union Turf Wars On Construction Projects

By Thomas A. Lenz

AALRR clients have recently had two published rulings by the National Labor Relations Board in which competing unions have disputed work assignments by construction contractors.  Where either or both unions to a dispute picket or threaten to picket because of such a dispute, the NLRB can get involved.  If the unions involved have not agreed to a different mechanism to resolve such disputes, the NLRB has the legal authority to make a final and binding award of the disputed work.

In a matter involving the Teamsters, the Laborers, and Ames Construction, the contractor assigned truck driving work on a construction in Imperial County, California to the Laborers despite the Teamsters' insistence that the work should be assigned to its members.  After an investigation and a hearing in Los Angeles, the NLRB in Washington, DC agreed with the contractor's work assignment and awarded the disputed work to the Laborers.  See Laborers (Ames Construction), 354 NLRB No. 113 (November 30, 2009).

In a matter involving the International Brotherhood of Electrical Workers, the Laborers, and High Light Electric, the contractor assigned certain traffic light installation work to the Laborers.  The IBEW demanded the work assignment.  After an investigation and a hearing in Los Angeles, the NLRB in Washington,DC agreed with the contractor's work assignment and awarded the disputed work to the Laborers.  See Laborers (High Light Electric), 355 NLRB No. 29 (April 29, 2010). 

The NLRB's dispute resolution process is very important in today's highly competitive climate.  Work is scarce, and unions are more competitive than ever as they seek to preserve their market share.  An NLRB award of disputed work is final and binding on the unions involved.  It is critical for any contractor performing work in the current economy to understand the playing field in case such issues arise.  This is especially true for contractors signed to multiple labor agreements, working under project labor agreements, or otherwise performing work that multiple unions claim.

Will President Obama's Recent NLRB Appointments Clear Backlog Of Cases?

By Christopher S. Andre

The National Labor Relations Board is a five member body of presidential appointees. However, for approximately the past 26 months, the NLRB has operated with just two sitting board members, Republican Peter Schaumber and Democrat Wilma Liebman. This has resulted in a backlog of unresolved cases pending before the NLRB and in a case pending before the United States Supreme Court calling for the Supreme Court to decide whether the National Labor Relations Act permits the NLRB to act when there are only two sitting members of the NLRB, New Process Steel v. National Labor Relations Board, in which the Supreme Court heard oral arguments on March 23, 2010. Click here for a transcript of the oral arguments.

As we previously reported here, on Saturday, March 27, 2010, President Obama made two recess appointments to the NLRB, appointing Craig Becker who, as we reported here, failed to obtain Senate confirmation largely on account of his close union ties, and Mark Pearce, another union side labor lawyer. So called "recess appointments" made while the Congress is in recess enable the White House and its nominees to postpone until a later date when the Congress is in session Senate confirmation of the appointees. As presently constituted, the NLRB now how has three sitting Democrats, one sitting Republican, and one seat still vacant.

In an April 12, 2010 article entitled, "Labor Cases Affected by Bottleneck May Speed Up," The Press-Enterprise reports that the backlog of cases pending before the NLRB, reportedly numbering approximately 250, is expected to ease with the two new "recess appointments." The Press-Enterprise reports also that "Because Obama is a Democrat, it is expected the new board will lean toward labor."

Among those interviewed for that article was AALRR partner Thomas A. Lenz who served as a staff attorney with the NLRB before joining AALRR. Tom told the Press-Enterprise "[t]he NLRB is very prone to political sway." Tom further explained the NLRB board members "don't rely on pages and pages of regulations like the Labor Department. Rules vacillate according to politics. What was law in the Clinton administration is not law during the Bush administration."

NLRB Appointments Foreshadow Imminent Change In Labor Law Enforcement

By Thomas A. Lenz

Last weekend President Obama made two recess appointments filling seats at the National Labor Relations Board. Union lawyers Craig Becker and Mark Pearce will fill two of the three vacant seats on the Board. Members Becker and Pearce were originally nominated as a package with a third, Republican, nominee for Senate consideration. Senate confirmation did not happen. No Republican received a recess appointment. It remains an open question what steps may be taken to fill the final seat on the Board, if at all, and whether the final seat will be filled by a Republican to follow the historical 3-2 Board composition.

The recess appointments, which do not require Senate confirmation, come less than a week after NLRB argued the validity of two-member Board rulings at the United States Supreme Court. If NLRB loses at the Supreme Court there are hundreds of two-member Board rulings from the period since 2008 which may be voided. It is expected that those cases would be sent back for reconsideration by the new Board members.

The Board will operate for the foreseeable future with 3 Democrats and 1 Republican member making decisions on litigated cases. The lone Republican (Peter Schaumber) has a term which expires in August 2010. Thus, as of September we may have a Board composed exclusively of former union attorneys on the Democratic side deciding the cases litigated at NLRB.

On the day to day operations side of NLRB, the term of General Counsel Ronald Meisburg also expires in August 2010. Meisburg was appointed by the Bush administration. It is unclear who is likely to succeed him. It should be expected that the President will appoint a new NLRB General Counsel who will take a new and distinct view of law and policy to protect employees' concerted and union activities and the collective bargaining process. A new General Counsel's approach to labor issues can significantly impact the day to day operations of the NLRB's many field offices. It is at this level that most employers deal with the NLRB on investigation, hearing, and election issues.

Employers should stay tuned, train supervisors on labor law compliance, and make sure that policy and procedure are consistent with company objectives and the law.