Last month, the Sixth Circuit vacated the National Labor Relations Board’s determination ordering the operator of the Golden Living Center Nursing Home to bargain with a unit that was elected by registered nurses (RN). Through its decision in GGNSC Springfield, Corp. v. NLRB, ___F.3d ___, 2013 U.S. App. LEXIS 13472 (6th Cir. 2013), the Sixth Circuit determined that the RNs constituted supervisors under the National Labor Relations Act and were therefore not permitted to unionize, because they were authorized to issue employee memoranda to certified nursing assistants (CNA). The Sixth Circuit determined that the issuance of employee memoranda constituted an act of discipline and required the RNs to exercise independent judgment in making a determination as to whether to issue a memoranda or to give a verbal counseling.
Articles Discussing Labor Law At The Federal Level, Including Issues Under The National Labor Relations Act (NLRA).
Now that two federal appellate courts have invalidated the National Labor Relations Board’s rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act, the Board has developed a new way to disseminate this information. On August 30, 2013, the Board launched a mobile app that “provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”
Executive Summary: A federal trial court in Washington state has held that the President violated the Federal Vacancies Reform Act (5 U.S.C. § 3345, et. seq.) when he appointed Lafe Solomon as Acting General Counsel for the National Labor Relations Board (the Board) on June 21, 2010. See Hooks ex rel. NLRB v. Kitsap Tenant Support Servs. (W.D. Wa. 2013). Given that Solomon was improperly appointed, the court also held that neither he nor Regional Director Hooks had the authority to issue an unfair labor practice complaint against the employer. Furthermore, without a valid complaint, Hooks was without the authority to file for a § 10(j) preliminary injunction.
In Community Options NY, Inc., 359 NLRB No. 165 (2013), the Board condoned the bribing of employees to vote against decertification by waiving union dues. Strong words, but no other conclusion can be reached after reviewing the Board’s decision.
A Michigan district court recently granted a union’s summary judgment motion to enforce an arbitrator’s decision that struck down the hospital’s new method of scheduling nurses’ shifts. In enforcing the arbitrator’s decision, the court relied on the fact that the collective bargaining agreement (CBA) at issue did not set forth a clear definition of what constitutes full-time employment, underscoring the importance of CBA language.
In July 2013, the AFL-CIO released a report in advance of its annual convention that provides a blueprint of how the labor movement intends to reinvent itself. The document – Interim Report to the AFL-CIO Executive Council on AFL-CIO Pre-Convention Outreach and Engagement – discusses the organization’s many outreach efforts, and how it plans to evolve and adapt to combat waning membership.
On Thursday, August 15, 2013, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile,1 affirming that the Board has broad discretion to determine appropriate bargaining units for union representation elections, including narrow so-called “micro-units.”
Further complicating the beleaguered Agency’s ability to carry out its mission, a federal court has determined that National Labor Relations Board Acting General Counsel (GC) Lafe Solomon was not properly appointed to his position.
Executive Summary: The Sixth Circuit Court of Appeals has affirmed the decision of the National Labor Relations Board (NLRB) in Specialty Healthcare, which requires employers to prove employees share an “overwhelming community of interest” to successfully challenge the composition of a bargaining unit. The court held that: (1) the Board may depart from its own precedent if it explains its decision and the departure is not arbitrary and capricious; (2) the Board’s clarification and use of its “overwhelming community-of-interest” standard was clearly explained and therefore not an abuse of its discretion: (3) the Board did not violate the National Labor Relations Act (the Act) because it based its decision on factors beyond the extent of the union’s organization efforts; and (4) the Board did not abuse its discretion by choosing to follow an already existing principle through adjudication instead of rulemaking. See Kindred Nursing Centers East v. NLRB (Aug. 15, 2013).
An agreement reached on July 16, 2013, between Senate Democrats and Republicans to avoid filibuster reform should result in four new members of the National Labor Relations Board (NLRB) and the reappointment of its controversial chair, Mark Gaston Pearce. Concerned over lengthy delays with confirmation of seven of President Barack Obama’s nominees, including five appointments to the NLRB, Democrats threatened to use the so-called “nuclear option” on Senate rules, a change that would have drawn Republicans ire and stalled major legislation.
Executive Summary: The Fourth Circuit has become the second federal appeals court to strike down the National Labor Relations Board’s rule requiring employers to post a notice of employee rights. In Chamber of Commerce v. NLRB (June 14, 2013), the court held that the Board exceeded the authority granted to it by the National Labor Relations Act when it promulgated the rule.
In State Employees Bargaining Agent Coalition v. Rowland I/O as Governor of the State of Connecticut, Connecticut Governor Dannell Molloy attempted to extract $450 million in long-term concessions from the State Employees Bargaining Agent Coalition (SEBAC) and 13 other public employee unions during the negotiation of a collective bargaining agreement. Notably, these unions represented 40,000 Connecticut state employees. The Governor advised the plaintiffs that unless they agreed to the concessions, he would fire approximately 3,000 unionized state employees. When the plaintiffs not only failed to agree to the Governor’s proposed concessions but also offered alternative concessions, the Governor ordered the firing of approximately 2,800 union employees.
Executive Summary: Although the D.C. Circuit Court of Appeals’ decision invalidating the Nation Labor Relations Board’s (NLRB’s) notice posting requirement means that private employers currently are relieved of this obligation, the ruling did not create a reprieve for federal contractors.
Watch what you wish for. There is a line in the sand between protected group activity and general “griping.” The distinction is critical, however, as it may spell the difference between unemployment or the impingement upon protected speech. In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party participated in a group message on Facebook in which she utilized some harsh, and very critical language regarding her employment position. The conversation culminated with the charging party’s statements: “FIRE ME … Make my day.” When the employer did just that, the Charging Party unsuccessfully challenged the decision before the NLRB.
Executive Summary: In a 2-1 decision, the Third Circuit has held that the President’s recess appointment of Craig Becker to the National Labor Relations Board was invalid because he was not appointed during an intersession break of Congress as required by the Recess Appointments Clause. Accordingly, the court held that a three-member panel of the Board, which included Becker, could not exercise the Board’s authority, and the court vacated an unfair labor practice decision issued by the panel.