May 2012

On May 30, 2012, Lafe Solomon, the NLRB's Acting General Counsel (the “AGC”), released a third report on social media cases brought before the Board. This report deals with seven different cases involving social media policies, covering topics such as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies. 

In the first six policies reviewed, the AGC concluded that at least some of the provisions in the employers' policies and rules were overbroad and, accordingly, unlawful, under the National Labor Relations Act (NLRA). Importantly, the Board found that the savings clauses in these otherwise unlawful policies did not save the policies. Only the final social media policy reviewed by the AGC was found to be entirely lawful. 

In finding the final reviewed policy lawful, the AGC pointed to the policies substantial use of examples of allowed and proscribed behavior.  Specifically, the AGC stated that “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”

We'll post a more detailed analysis on the report in the coming days. In the meantime, the report itself can be seen here.

Terence Flynn, one of two Republican members on the five member NLRB, resigned from the Board Sunday, May 27, effective July 24. Flynn has been under investigation over alleged inappropriate communications regarding the Board's internal deliberations. Flynn's resignation will permit President Obama to appoint another member. By tradition, that member should be a Republican. President Obama himself was the subject of controversy earlier this year by using his recess appointment powers to fill three vacancies on the Board. Member Flynn was one of those recess appointments.

More information about the resignation is available here.

The AFL-CIO announced yesterday that former NLRB member Craig Becker has joined the union as its co-general counsel. Becker, who has also served as counsel to the SEIU, was nominated to the Board by President Obama in 2010. The Senate blocked his confirmation, with several Republican Senators criticizing his positions. The New York Times story on Becker noted that, during his confirmation process, Senator John McCain called him “probably the most controversial nominee that I have seen in a long time.” The Times also recited several of the measures backed by Becker in his tenure at the Board which have come under fire in the courts. 

The full New York Times story can be found here.

Senator Johnny Isakson of Georgia recently issued a press release “blasting” a recent Board decision approving the formation of a mini union of employees within the shoe department at the Bergdorf Goodman store in New York. Senator Isakson also called on the Senate to pass legislation to reverse the Board's policy of allowing as few as two or three employees to form “micro” bargaining units.

In his own words, Senator Isakson noted the following:

“The labor board seems to have run amok as far as I’m concerned. Micro unions in any place of business cause discord and are a way to upset an organization that otherwise is not upset. There is not a problem as far as unions being able to organize, but there is a huge problem in that the labor board continues to try to overturn decades’ worth of labor laws that have served us well in order to tip the scales in favor of labor unions. The recent decision at Bergdorf Goodman is an example of the labor board’s doing through regulation what we ought to be doing through legislation on the floor of the Senate.”

The full release can be found here.  

The Board has announced that it is “temporarily” suspending implementation of its ambush election rules, in light of the D.C. District Court decision yesterday finding the rules invalid.  The Board’s notice states that about 150 representation petitions had been filed under the new rules since they went into effect on April 30. The parties involved in those cases will be given the opportunity to continue processing the case under the new procedures, but any newly filed cases will be processed under the old rules, at least for now.

Read the full notice from the Board here.

The Seventh Circuit in Sandifer v. U.S Steel has provided union employers a useful tool to avoid potential Fair Labor Standards Act (“FLSA” or “Act”) liability.

Sandifer arose out of a “collective action” brought under the FLSA by 800 former and current unionized hourly workers at U.S. Steel’s steel works in Gary, Ind. The plaintiffs argued that U.S. Steel violated the FLSA when it failed to compensate them for time spent donning and doffing work clothes in a locker room at the plant. The work clothes at issue consisted of flame-retardant pants and jackets, work gloves, metatarsal boots, hard hats, safety glasses, ear plugs, and “snoods” (a hood that covers the top of the head, the chin, and the neck).

Plaintiffs further alleged they were entitled to compensation for time spent walking between the locker room and their workstations. The district court ruled that the FLSA did not require that changing time be compensated, but that the Act may require compensation for time spent walking to and from the locker room and therefore refused to dismiss the suit. Both parties subsequently appealed, and the Seventh Circuit recently issued its opinion in the matter.

Barnes & Thornburg's Labor & Employment Department has issued an Alert that highlights the Seventh Circuit Court of Appeals' decision in U.S. Steel. To read the Alert in its entirety, click here.

District Court Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued an opinion this afternoon finding the NLRB's “ambush” election rules invalid because the Board did not have three members who cast a vote on whether to implement the rules when they were adopted in December.  Although the Board had three members at the time, Judge Boasberg found that Member Brian Hayes objected to the rules and did not cast a vote when the final rule was adopted.  Because Member Hayes effectively did not participate in adoption of the final rule, Judge Boasberg found that the Board lacked a quorum and that the adoption of the final rules was invalid under the U.S. Supreme Court's decision in New Process Steel. Judge Boasberg's entire opinion is available here.

Judge Boasberg's opinion did not reach the question of whether the final rule was otherwise lawful, had it been adopted when the Board had a quorum.  Instead, Judge Boasberg concluded that “representation elections will have to continue under the old procedures” unless a properly constituted quorum of the Board votes to adopt the rule. There is no word yet from the Board responding to today's opinion and it remains to be seen whether the Board will hold another vote to adopt the rules. Stay tuned.

See our prior coverage of the Board's “ambush” election rules here.