Revitalized National Labor Relations Board Sets An Aggressive Course

by Franczek Radelet P.C.
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The National Labor Relations Board is now operating at full strength with five Board members who were properly nominated and confirmed. As a result, employers should expect increased activity as the Board seeks to make up for lost time. All signs point to a fully engaged Board as it seeks to resuscitate its “quickie” election rule and churns out decisions that play a role in shaping the workplace for union and non-union employers. The following provides an update on recent Board decisions and developments, including the latest “quickie” election developments.

Board Sets Public Hearings on Quickie Election Rule

As we recently reported, the Board indicated that it would reissue its controversial quickie election rules, first proposed in June 2011, in the coming months. The Board announced late in February that it has scheduled the first of at least two public meetings to address its latest effort to drastically streamline union elections. The meetings will be held on April 10 and April 11, 2014 in the Margaret A. Browning Hearing Room (Room 11000) at the Washington D.C. headquarters, starting at 9:30 a.m. Parties who want to speak at the event must submit a Request to Speak no later than March 10, 2014, and those who want to watch the proceedings must submit a Request to Attend, which must be received by the Board no later than March 31, 2014. Information about these requests is described in detail in the Federal Register notice announcing the public meetings. Topics to be discussed during the meetings include: petitions and pre-hearing issues; pre-election hearings; voter eligibility lists; requests for review; timing of elections; post-election hearings; and other post-election procedures. The Board’s notice also observes that it may hold additional meetings on April 8 and/or April 9, 2014.

Board Strikes Down Employer’s Overbroad Baseball Cap Policy

In February, in World Color Corp., the Board affirmed an ALJ’s decision which found that the employer’s baseball cap policy was overbroad and violated Section 8(a)(1) of the National Labor Relations Act. The policy prohibited employees from wearing baseball caps, except for official company caps with the company logo, purchased from the employer at the employee’s expense. Employees generally have the right to wear clothing with union insignia, unless the employer can establish the existence of “special circumstances” that outweigh the employees’ right. In this case, the employer offered safety concerns as the basis for the policy, but it failed to provide any evidence to establish that allowing employees to wear union baseball caps would jeopardize employee safety. Accordingly, the Board held that the policy violated employees’ right to engage in the protected activity of wearing union baseball caps, and ordered the employer to either rescind or modify the unlawful policy.

Board Holds that Union Picketing Does Not Extend to Social Media

Also in February, a divided Board panel ruled that the NLRA did not require a union to disavow and remove from its Facebook page disparaging comments posted by its members aimed at workers who chose to cross a picket line. On behalf of those workers, the General Counsel had argued that failing to disavow the online threats was no different than failing to disavow threats by picketers on a real world picket line. The General Counsel contended that the union’s public Facebook page amounted to an “electronic extension” of the real picket line. The Board upheld an ALJ’s finding that, unlike a picket line, a Facebook page “does not serve to communicate a message to the public” and was “private.” This reasoning appears to run directly counter to rationales supporting earlier Board decisions finding NLRA violations by employers, rather than unions, in Facebook-related cases. The Board held that the threats of physical violence made by union members did not rise to the level of Section 8(b)(1)(A) violations, and that the General Counsel had failed to demonstrate that the members were agents of the union.

Regional Director Finds Medical Residents are “Employees” and Orders Election at Queens Hospital

Last week, Region 29 ordered a representation election among resident doctors at Elmhurst Hospital Center in Queens, N.Y., finding that medical residents are employees under the NLRA, rather than students. Region 29 Regional Director James Paulsen agreed with the SEIU-affiliated union seeking to represent the residents that, under the Board’s decision in Boston Medical Center, the residents were employees within the meaning of the NLRA. In 1999, the Board held in Boston Medical Center that residents are employees based on the fact that they received compensation in the form of a stipend, workers’ compensation, paid vacations, sick leave, and health, dental and life insurance. The Icahn School of Medicine at Mount Sinai, which operates the residency program at Elmhurst Hospital, relied primarily on Brown University, a 2004 decision in which the Board ruled that university teaching assistants and research assistants were not statutory employees, and argued that the residents were “more akin to graduate students” under that decision. The Regional Director disagreed, noting that the doctors spent most of their time providing patient care without supervision and that the doctors were not registered as “students” with the Icahn School.

General Counsel Asks Board to Adopt New Standard for Deferral to Arbitration Decisions

In early February, the Board invited interested parties to file briefs in Babcock & Wilcox Construction Inc., to determine whether or not the Board should continue, modify or abandon the Olin/Spielberg standard for deferral to arbitration awards. The deferral standard comes into play where an arbitrator issues a decision in a case that also involves a pending unfair labor practice charge based on the same facts.

Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act.  Further, the arbitral forum must have considered the unfair labor practice issue.  The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue.  The burden of proof rests with the party opposing deferral.

The Board’s General Counsel has asked the Board to adopt a different standard.  Under the General Counsel’s proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.

The Board has invited all interested parties to file briefs, not exceeding 50 pages in length, with the Board in Washington, D.C. on or before March 25, 2014. Briefs may also be filed electronically at http://mynlrb.nlrb.gov/efile. The Board’s notice and invitation to file briefs identifies four separate questions which the Board will consider as part of its review process, including whether some other modification of the Olin/Spielberg standard would be more appropriate than the new standard proposed by the General Counsel.

Employers that operate under a union contract should be concerned about a new deferral standard. The General Counsel’s proposed standard decreases the likelihood of deferral and undermines the finality of arbitration by providing unions who lose at arbitration with a second bite at the apple if the employer cannot meet the proposed deferral standards.

General Counsel Outlines Enforcement Priorities in New Memorandum

Late last month, former NLRB Member and now General Counsel Richard Griffin released Memorandum GC 14-01, which outlined the matters that Regions must submit to the NLRB’s Division of Advice for guidance before proceeding with potential enforcement actions. The memorandum provides employers—both union and non-union—with insight into the General Counsel’s priorities for prosecuting upcoming cases.

Griffin’s memorandum divides the priorities into three groups: “the General Counsel’s initiatives or policy concerns,” cases “that involve difficult legal issues or the absence of clear precedent,” and cases involving matters that traditionally were submitted to the Division of Advice, such as those involving injunctive relief or the issuance of subpoenas after a complaint is filed.  Prominently mentioned among these priorities was the Bush-era Register Guard decision, which allowed employers to ban employees from using work e-mail systems for non-work purposes, and cases related to the Board’s decision in Alan Ritchey, which essentially held that an employer could only issue unilateral discipline during first time contract negotiations in nebulous “exigent circumstances.” The General Counsel’s priorities demonstrate that the Board continues to look to expand its reach beyond the traditional union/management setting, adding the rights of non-union employees to representation in disciplinary meetings and employer e-mail solicitation rules to its already aggressive social media and immigration enforcement efforts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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