Employer Cannot Have Its Cake and Eat It Too in Terminating Illegal Striking Employees
A recent decision by the National Labor Relations Board demonstrates that in law, as in life, sometimes you cannot change your mind without consequences. In Douglas Autotech Corp., 357 N.L.R.B. No. 111 (Nov. 18, 2011), the Board affirmed the administrative law judge's decision that, even though employees participated in an illegal strike, their employer illegally fired them.
It's 2012 And The NLRB Is Off To A Fast – And Controversial – Start
The 2011 calendar year was one of the more interesting years for the National Labor Relations Board (NLRB). The Board became a lightning rod for controversy and partisan politics due to its controversial decisions to utilize its rarely-used rulemaking authority to rewrite the rulebook on union elections and to require employers to post what many consider a pro-union National Labor Relations Act (NLRA) poster in its workplace.
Worker May Challenge Employer’s Neutrality Agreement with Union, Appeals Court Rules
An employee may bring suit under the federal Labor Management Relations Act to enjoin enforcement of a neutrality agreement between his employer and a labor union, the U.S. Court of Appeals for the Eleventh Circuit has ruled. Mulhall v. UNITE HERE Local 355, 2012 U.S. App. LEXIS 944 (11th Cir. Jan. 18, 2012). The Court explained that labor organizing assistance can be a thing of value that, if demanded or given in payment in certain circumstances, could be a violation of the LMRA. Accordingly, the Court reversed the district court’s dismissal of the suit and remanded the case. In so deciding, the Eleventh Circuit broke ranks with several other federal courts that have ruled neutrality agreements are not “things of value.” See, e.g., Adcock v. Freightliner, LLC, 550 F.3d 369 (4th Cir. 2008); Hotel Eps. & Restaurant Eps. Union, Local 57 v. Sage Hospitality, 390 F.3d 206, 218-19 (3d Cir. 2004); Patterson v. Heartland Industries Partners, 428 F. Supp. 2d 714 (D.C.N.D. Ohio 2006). The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia.
NLRB Chairman Says He Will Push For Additional Election Rule Changes
In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.
NLRB Report Challenges Validity of Many Commonly Used Social Media Policies
In its most recent effort to draw lines on the self-described "hot topic" of the "lawfulness of employers' social media policies and rules," the National Labor Relations Board's (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers' social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2011, in the form of a report, issued to senior regional staff, on 14 cases which, according to the General Counsel, "present emerging issues in the context of social media." This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues.
Bans on Buttons and Insignia in Health Care Settings Must be Consistently Enforced, NLRB Advises
Recognizing that health care employers are justifiably concerned with maintaining a safe environment for their patients and residents, the National Labor Relations Board for many years has permitted these employers to maintain and enforce rules banning employees from wearing buttons and insignia in “immediate patient care areas,” including patient rooms, corridors outside those rooms, treatment areas, and patient dining rooms. Indeed, the Board has long held that such bans are “presumptively valid” (proof by the employer of “special circumstances” not required) as necessary to avoid disruption of health-care operations or disturbance of patients and residents. Health care employers have applied these rules to prohibit the wearing of a variety of buttons, including union-related buttons, and even disciplined employees who violate them.
Healthcare Employers May Not Selectively Prohibit Union Insignia in Patient Care Areas
Most hospital visitors have seen them – from nursing school pins to pictures of children, from advanced designations to "special messages" – and most healthcare providers allow them in some form. They are the "accessories" that adorn an employee's identification badge. They can be informative and they can be cute, but, as a new decision from the National Labor Relations Board confirms, they can be problematic if not properly and consistently regulated.
"Effectively Recommend" Dissected
In a line of decisions known as the Kentucky River cases, the Board took aim at re-defining “assign,” “responsibly to direct,” and “independent judgment” in Section 2(11) of the NLRA as it relates to supervisory status. In DirecTV U.S. DirecTV Holdings LLC, 357 NLRB No. 149 (2011), the Board took the opportunity to dissect the meaning of “effectively recommend” as it relates to supervisory status. In light of the Board’s conclusions, employers should consider how much post-supervisor review is built into disciplinary processes, especially with respect to statutory supervisor status issues under the NLRA.
The Language of Lockout
One tenet of NLRB case law is that an employer’s use of permanent replacements renders a lockout in support of its bargaining position unlawful. In Harborlite Corporation, 357 NLRB No. 151 (2011), the Administrative Law Judge relied on this principle to find a lockout in support of an employer’s bargaining position unlawful due to the employer’s statements that it would permanently replace employees. In a somewhat surprising result, the Board agreed the statements were unlawful, but concluded that the lockout itself was lawful. The Board’s separation of statements and conduct, as well as its implicit approval of the employer’s attempt to cure an errant statement, amounts to a welcome Board decision for employers.
FAA Deal Reached on NMB's Rulemaking, Changes Certain Election Procedures
Last Friday leaders of the House and Senate reportedly came to an agreement on the terms of the Federal Aviation Administration (FAA) reauthorization bill concerning how the National Mediation Board (NMB) will conduct representation elections and issue new rules. The NMB is the independent agency that oversees union representation, collective bargaining, and dispute resolution matters in the rail and airline industries.
