Employee Rights Posting Rules

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

The D.C. Circuit Court of Appeals struck a blow, at least temporarily, against the NLRB’s controversial notice posting rule today by issuing an emergency injunction postponing application of the rule. The injunction will be in place while the D.C. Circuit considers an appeal from the D.C. District Court’s decision in March partially invalidating the rule. Although the district court’s March decision upheld the right of the NLRB to promulgate and require notice posting, its ruling struck down certain enforcement provisions of the regulation. The D.C. Circuit found that this uncertainty about enforcement, combined with the fact that the NLRB had already voluntarily postponed application of the regulation for several months while the district case proceeded, justified the injunction.

The D.C. Circuit’s injunction comes on the heels of a decision in a separate case pending in District Court for the District of South Carolina, which overturned the notice posting requirement completely, finding that it exceeded the statutory authority of the NLRB to promulgate rules. The D.C. Circuit’s injunction order recognizes these conflicting district court opinions. 

For now, the D.C. Circuit’s injunction means employers have at least a few more months relief from the NLRB’s notice posting rule, as the injunction will prohibit the rule from taking effect until the D.C. Circuit resolves the merits of the case.  The notice posting rule had been scheduled to go into effect on April 30, 2012.  Oral argument is scheduled in the D.C. Circuit appeal for September.  Stay tuned here for regular updates as this case progresses.

The D.C. Circuit case is National Association of Manufacturers v. NLRB, No. 12-5068.  Today’s injunction order can be found here.  See BT Labor Relations’ previous coverage of this issue here.

On April 13, Judge David C. Norton of the United States District Court for the District of South Carolina, Charleston Division, ruled that the NLRB's final rule requiring the posting of a general notice informing employees of their Section 7 (of the National Labor Relations Act, the "NLRA") rights exceeded the statutory rights of the NLRB, violated the Administrative Procedures Act and, thus, was unlawful. 

In his decision, Judge Norton found that Section 6 of the NLRA, which confers rulemaking authority on the NLRB, only allows the NLRB to make rules and regulations "as may be necessary to carry out the provisions of the [NLRA]."  He further found that, though possibly helpful, the posting requirement was not necessary for the NLRB to carry out the provisions of the NLRA. In reaching that determination, Judge Norton analyzed the congressional intent behind the NLRA, specifically Section 6, and did not find anything either in the statute itself or in the legislative history pointing to an intent to give the NLRB the authority to promulgate the notice posting requirement.

Earlier this year, a different District Court struck down part of the NLRB's Notice Posting Rule, but upheld the Board's authority to promulgate and require posting of the Notice. The conflict among the courts means that further litigation about this issue is likely.  Stay tuned.

Judge Norton's ruling can be found here.  Our description of the final rule can be found here.

As we discussed earlier in the week, a consortium of employer groups have appealed DC District Court Judge Amy Berman Jackson's ruling on the NLRB's notice posting requirements. On March 7, Judge Jackson denied the plaintiffs' request for an injunction, which they filed concurrently with their appeal. By their injunction request, the plaintiffs' sought to enjoin enforcement of the NLRB's new posting requirement until the appeal is heard.  The posting requirement goes into effect on April 30. 

As expected, the plaintiffs in the case challenging the NLRB's posting requirement have appealed Judge Amy Berman Jackson's partial denial of their summary judgment motion, as well as her denial of their motion to supplement the pleadings to include a challenge to the President's recess appointments to the NLRB. 

As we have discussed previously, Judge Jackson had denied Plaintiff's challenge to the posting requirement itself, while ruling in their favor by invalidating certain penalties faced by employers for failing to post the notice.  

Several organizations, including the National Right to Work Legal and Defense Foundation, have added a new spin to a lawsuit filed over the NLRB's notice posting rules. The organizations have asked a federal district court for leave to amend the lawsuit to challenge the constitutionality of President Obama's recent (and controversial) “recess” appointments to the NLRB. We previously reported on the President's recess appointments here. The Obama Administration recently filed a motion with the Court asking that it block the organizations' challenge to the appointments.