Working Hard For Working People

Court Upholds NLRB Notice Posting Requirement

In National Association of Manufacturers v. NLRB, 102 LRRM 2999 (D.D.C. 2012), issued on March 2, 2012, a federal District Court for the District of Columbia held that the NLRB had authority to promulgate a rule requiring employers to post a notice informing employees of their rights under the NLRA.      The Court rejected the plaintiffs’ claim that the statute did not specifically authorize a notice posting requirement where there was no preceding finding that an unfair labor practice had been committed, finding instead that the notice fell with the broad rule-making authority granted to the Board under the Act.  The Court, however, struck down that portion of the rule which deemed an employer’s failure to post the notice an automatic unfair labor practice.  The Court held that its decision would not prevent the Board from making an individual determination that the failure to post violated 8(a)(1), rather, it was the blanket advance determination of an unfair labor practice that the Court found invalid.

 

It Violates the NLRA to Exclude Union Agent from Employer’s Premises After Hitting Him With Car

At a labor dispute between Nielmed Products and the Teamsters/Change to Win, Supervisor Jonathan Herdita approached a picket line with his car. When the picketers blocked his entrance, Herdita continued to move forward with his car until he hit the legs of employee/union steward Elmer Cisneros.  Getting hit caused Cisneros to fall on the hood of the car.  Rather than stopping, Herdita kept moving!  This led Cisneros to hit Herdita’s windshield with his right fist, breaking the glass.  Thereafter, Nielmed fired Cisneros for the allegedly violent act.  However, Cisneros continued serving on the picket line and was ultimately appointed as business agent for his union.  Afterwards, the Company refused to allow Cisneros onto its property, arguing that its duty to provide a safe workplace required that Cisneros be denied access to its facility due to his “violent” actions on the picket line.

Evaluating this claim, the NLRB found that the employer violated the Act by refusing to allow Cisneros on its property to discuss grievances.  In Nielmed Products, 358 NLRB No. 8 (February 29, 2012), the Board reiterated its position that “each party to a collective bargaining relationship has the right to select its representative for bargaining and negotiations and the duty to deal with the chosen representative of the other party.”  The Board found “unconvincing” arguments about workplace safety,.  It found that Cisneros “hit the windshield with his fist due to the provocation of the vehicle continued to move forward while he was lying on the vehicle hood.”  It was not a violent act, but rather, “a defensive act taken in order to call the driver’s attention to his perilous position on the hood of the car.”  Moreover, it found that Cisneros’ actions did not create ill will and make good-faith bargaining impossible where Herdita was no longer employed by the Company and the incident did not involve any current member of management.  Such actions violated Section 8(a)(1) and (5) of the NLRA.

NLRB Region 30 in Milwaukee Seeks 10(j) Relief Against Piggly Wiggly Midwest

In a Februrary 14, 2012 filing in the United States District Court for the Eastern District of Wisconsin, NLRB Region 30 Regional Director Irving Gottschalk asked the Court for 10(j) injunctive relief against Piggly Wiggly Midwest pending the final disposition of a pending complaint against the employer.  On December 28, 2011, Region 30 issued a Complaint and Notice of Hearing against Piggly Wiggly alleging numerous violations of Sections 8(a)(1), (3) and (5) of the Act.  The Complaint stems from Piggly Wiggly’s unilateral reduction of 19 full-time employees to part-time status in the bargaining unit represented by UFCW Local 1473 at its Sheboygan, Wisconsin store. The reductions resulted in the employees losing their hours and certain contractual benefits, including health insurance, and had the effect of forcing four of the reduced employees to quit their employment.  The Board’s Petition before the Eastern District Court asserts that 10(j) relief is appropriate because they have demonstrated a strong likelihood of prevailing before the Board on the merits against Piggly Wiggly, in part because there is no dispute that the Employer failed or refused to provide the Union with prior notice and opportunity to bargain over the reductions.  The Board also asserts that 10(j) relief is justified because without the requested relief irreparable harm will result to employees by loss of their health insurance, and further is necessary to curb the significant loss of employee support for the Union because of the unilateral changes which cannot be remedied by a future Board order.

Board Holds That Mandatory Arbitration Agreements Restrict Protected Rights

The National Labor Relations Board recently determined that an employer violates the National Labor Relations Act when it requires employees to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions. In D.R. Horton,357 NLRB No. 184 (January 3, 2012), the Board determined that such agreements unlawfully restrict employees' Section 7 rights to engage in concerted action.  The Board reached its holding despite recent court cases enforcing employment-related arbitration agreements are judicially enforceable under the Federal Arbitration Act.

New Board Members Sworn In

Following their recess appointments by President Obama, the three new members of the National Labor Relations Board were sworn in this week.  Sharon Block, Terence F. Flynn and Richard F. Griffin join Chairman Mark Gaston Pearce and Member Brian Hayes on the Board.  This is the first time there have been a full compliment of Board members since August 2010.

 

President Appoints Three to National Labor Relations Board

President Obama announced yesterday his intent to make recess appointments to the Board.  The three individuals are Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Terence F. Flynn, currently Chief Counsel to NLRB Board Member Brian Hayes, and Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).  Biographies of all three individuals are available on the Board's website.

Absent these recess appointments, the Board would lack the ability to enforce the National Labor Relations Act in a meaningful way.  In his statement, the President said  "The American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans. We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that's why I am proud to appoint these fine individuals to get to work for the American people." 

Supervisory "Speculation" About Layoffs Constitutes Unfair Labor Practice

In Trump Marina Associates v. NLRB (October 14, 2011), the D.C. Circuit upheld the Board's decision that the employer committed unfair labor practices in a hotly contested election that the Union lost by a narrow margin. Among the actions that the Board held to constitute a ULP was a supervisory comment that the employer would not negotiate with the union and supervisory 'speculation' about layoffs or other matters as the result of unionization that were not based on objective fact.

Interrogation of Union Supporters Violates Act

In Acme Bus Corporation, (August 26, 2011), the National Labor Relations Board reviewed a number of unfair labor practices committed by a bus company during a union organizing campaign.  The Board found that the employer violated Section 8(a)(1) of the Act by interrogating employees about union activities, orally promulgating and maintaining a rule prohibiting employees from discussing the Union at work, orally promulgating, maintaining, and disparately enforcing an overly broad solicitation/distribution rule, creating the impression that employees’ protected activities were under surveillance, and subjecting employees to closer scrutiny in retaliation for their support of the Union.

Cancellation of Group Health Insurance During Bargaining Violates Act

In Uwanta Linen Supply, Inc., (August 17, 2011), the National Labor Relations Board ruled that an employer violated Sections 8(a)(5) and (1) of the National Labor Relations Act where it failed to bargain about group health insurance benefits and failed to continue benefits while bargaining took place.  Notably, the employer failed to file a timely answer to the Board issued complaint and, when they did answer, indicated that “we did not believe it would take very long to either reinstate coverage or find another provider.”  The Board found that even assuming that the Respondent demonstrated good cause for its untimely answer, the answer did not deny the substance of the complaint’s factual allegations. The Board ordered the Respondent to restore the employees’ health insurance and reimburse them for expenses ensuing from the unilateral discontinuance of their health insurance.

Board Creates New Rule Preventing Financing of Litigation During “Critical Period”

In Stericycle, Inc., (August 23, 2011), the Board created a new rule “that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which states claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.”  The rule overturns existing Board law governing union-sponsored lawsuits filed during the critical period.  See Novotel New York, 321 NLRB 624 (1996).  During early stages of the organizing efforts, drivers “voiced concern that they were not being paid for meal times, break times, and overtime work.”  During the critical period, the union financed a lawsuit on behalf of the employees under federal and state law.  Based on the lawsuit, and the Board’s new policy, the Board found that the lawsuit was a benefit granted to employees during the critical period, thereby tainting the election.  Notably, the decision occurred prior to the expiration of Wilma Liebman’s term on the Board. Liebman dissented from the majority opinion, on the basis that the Board’s approach “burdens activity protected by the NLRA and the First Amendment more than is necessary to preserve the integrity of Board elections.”