Management Memo

Management’s inside guide to labor relations

Posted on by Epstein Becker & Green, P.C.

Third Circuit: President Obama’s Recess Appointments to the NLRB Were Unconstitutional

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By: Evan Rosen and Adam C. Abrahms

Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United States Senate.  The case comes a few months after the D.C Circuit’s ruling in Noel Canning, which similarly held that the recess appointments were invalid.  The Third Circuit and D.C. Circuit decisions, taken together, call into question the validity of a considerable number of decisions and rules that the Board has issued over the past few years.

The case before the Third Circuit arose from a petition by the Service Employees International Union (“SEIU”) for certification as the bargaining representative of a unit of licensed practical nurses (“LPN”) employed by New Vista Nursing & Rehabilitation.  New Vista challenged the Union’s certification on the grounds that the LPN’s were supervisors and not eligible to organize under the National Labor Relations Act.   The Regional Director and the Board rejected New Vista’s argument, held the LPN’s were not supervisors and ordered an election to be held.  The Union received a majority of votes, but New Vista refused to bargain with the Union in order to challenge the Board’s conclusion.  As a result, the Union filed an unfair labor practice and a motion for summary judgment, which the Board granted.  The Board’s order granting summary judgment was issued by a three member panel that included Member Craig Becker, who was appointed by President Obama via the Recess Appointments clause of Article II of the U.S. Constitution.

New Vista argued that the Board’s three member panel was improperly constituted and without power to issue the order because of Member Becker’s appointment to the Board while the Senate was not actually in “recess.”  The U.S. Constitution grants the President power to fill vacancies without Senate confirmation during “the Recess of the Senate.”  The Third Circuit considered three possible definitions of the term “the Recess of the Senate:” (1) intersession breaks; (2) intersession and intrasession breaks that last at least ten days; and (3) any time in which the Senate is not open for business and is unavailable to provide its advice and consent.  In its decision, the Third Circuit concluded that the first definition was the correct interpretation, holding that “the Recess of the Senate” only refers to an intersession break.  For that reason it concluded that Craig Becker’s appointment was invalid because it occurred in March 2010 during an intrasession break.  Accordingly, the Third Circuit overturned the Board’s ruling against New Vista because the Board’s order had not been issues by a properly constituted, valid three-person panel.

This decision is significant because it casts further doubt on all of the decisions and rules that the Board has issued over the past three years.  As we have previously discussed, the Board under President Obama has been among the most activist in the agency’s history.  It has issued decisions and rules – many of which pertain to non-unionized companies – that touch on many aspects of the workplace, including for example, social media policies, confidentiality agreements, at-will employment, internal investigations, class action waivers, ambush election rules and notice posting requirements. But, in light of the Noel Canning decision and yesterday’s decision by the Third Circuit, employers have a strong argument that these decisions and rules were issued by an invalid Board and are thus without any legal effect.  Yesterday’s decision bolsters this argument because, unlike the Noel Canning decision, the Third Circuit’s focused on Member Becker, who was appointed in 2010 and is no longer on the Board.  This means that the breadth of Board decisions and rules that are invalid extends back to Becker’s appointment, which occurred in March 2010 when Chairperson Wilma Liebman’s term expired.

Last month the Board petitioned for certiorari seeking review of the Noel Canning decision by the Supreme Court.  The Supreme Court will have the final say on the issue, but in the meantime, President Obama’s recess appointments to the Board are also being challenged in cases brought before the Second, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits.    This blog will provide an update when decisions in those circuits are issued.

Management Missives

  • In defending any unfair labor practice charge that relies on any of the NLRB Decisions after March 2010, Employers should contest any assertion that they are valid authority under with the investigation Region can rely and should cite to both Noel Canning and New Vista Nursing decisions.
  • Employers who have received any adverse ruling from the Board since March 2010 now have additional grounds to have the ruling vacated and should consider filing such an appeal in the D.C. Circuit or Third Circuit.

 

Posted on by Epstein Becker & Green, P.C.

Employees at a Non-Union Worksite May Select a Union Representative for an OSHA Inspection

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By Paul H. Burmeister and Eric J. Conn

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections. OSHA responded affirmatively.

29 C.F.R. 1903.8(c) provides:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.” This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.

OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters. Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.

Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative.

OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.

OSHA tried to minimize the purported impact of this Interpretation, explaining that it was simply intended to clarify a position it had taken in an earlier March 7, 2003 Interpretation Letter regarding non-employees who file a complaints about a workplace. In that letter, which has now been archived, OSHA explained that non- or former employees do not necessarily have a right to participate in an OSHA inspection arising out of their complaints. OSHA distinguished the 2003 letter from the present interpretation by explaining that the 2003 letter did not address whether current employees may have a non-employee representative of their choosing present during an inspection.

This new Interpretation Letter may result in at least two new wrinkles from OSHA inspections. First, having an outside community or union activist in your worksite during an inspection may strain employers’ abilities to cast their workplaces in the most favorable light. Second, non-union employers should be prepared for the possibility that union representatives will gain, through participation in an OSHA inspection, useful knowledge or relationships to facilitate an organizing campaign.

Posted on by Epstein Becker & Green, P.C.

Court of Appeals Rules NLRB Notice Posting Violates Employer Free Speech Rights

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By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized,  to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly inform employees of their rights to join and be represented by unions and to engage in other activity protected by the Act. The rule would also have made it an unfair labor practice for an employer to fail to post the required notice and such failure also could be considered proof of anti-union animus in other Board proceedings.

Although proposed in 2011 and scheduled to become effective on April 30, 2012, the requirement has yet been put into effect. As we discussed previously, last year, the US District Court for the District of Columbia had held that the Board lacked the authority to make it an unfair labor practice for an employer to fail to post the notice, holding that this exceeded the Board’s authority under the Act. Just prior to the rule going into effect, the DC Court of Appeals issued an emergency injunction in support of the District Court’s opinion and the NLRB opted to not enforce the rule pending the appeal.

Perhaps what is most noteworthy about the Court’s recent opinion, authored by Senior Circuit Judge Randolph, is the Court’s reliance on employers’ free speech rights which are protected by Section 8(c) of the Act. That section of the Act ensures employers  the right  to communicate their views concerning unions to their employees. The Court noted that while Section 8(c) “precludes the Board from finding non coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is because under the rule an employer’s failure to post the required notice would constitute an unfair labor practice and the Board’s rule would have allowed the Board to “consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of anti union animus in cases in which unlawful motive [is] an element of an unfair labor practice.”

The Court focused on the question of the right of employers to “free speech,” under both Section 8(c) of the Act and under the First Amendment to the Constitution, noting that the rule would have required employers to disseminate information and that “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” relying on analysis from prior Supreme Court and appellate court decisions which it referred to as “compelled speech” cases.

Interestingly, the Court’s conclusion that the Board’s rule violates Section 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus, suggests the Board might be able to find an alternate route to a notice posting requirement if it did not seek to create such a remedy for an employer’s failure to post the notice.  However, the Court refused to leave the portion of the Board’s rule requiring the Notice posting in effect even without the enforcement and remedial provisions, because they were an inherent part  of the Board’s purpose in adopting the rule.  For now the beleaguered Board will need to decide whether it wishes to appeal this decision to the Supreme Court, attempt to craft  a new rule with the currently constituted Board that this same Court of Appeals has ruled was unconstitutionally appointed in its Noel Canning decision or postpone any action until a new Board is confirmed by the Senate.

Posted on by Epstein Becker & Green, P.C.

What To Know About ACA Collective Bargaining, in Employment Law360

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Evan Rosen and Mark M. Trapp of the Labor and Employment practice co-wrote an article titled “What To Know About ACA Collective Bargaining”

Following is an excerpt:

For the unionized employer, the advent of the Affordable Care Act requires careful strategic thought about its impact on upcoming collective bargaining negotiations. Indeed, for companies with a unionized workforce, the ACA poses additional challenges and strategic considerations above and beyond those confronting nonunionized workforces.

Click here to read the full article.

Posted on by Adam Abrahms

Executive Privilege (a new Twinkie Defense?): What Executives Can and Should Say About Unions

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In the past week media reports abound regarding a controversial allegedly “anti-union” statement made by a high level executive associated with the iconic snack cake Twinkies.  As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc.,  was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company’s downfall.  However, these statements did not cause this most recent controversy.  Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed company which acquired many of the assets of the bankrupt predecessor, including the rights to make Twinkies, which spurred public attention.

As the snack cake savior prepares to reopen plants and hire a new workforce, interest has swirled as to when and how the new company would operate.  Specifically, in an April 24th Wall Street Journal article the executive opined of the new Twinkie maker that “We do not expect to be involved in the union going forward.”

This comment sparked controversy causing Hostess Brands LLC to walk back or clarify the statements and leading to some to opine that executives should not comment on labor matters.  In fact, the headline of a May 2nd Law360 article asserted that “Silence Can Be Golden.”  This is not the first labor or union related comment by a high level executive of a company to generate controversy and it was met with predictable attention.  The question is it advisable or practical to attempt to silence executives on labor matters?

Each situation will be different and certainly there will be times where public comment is not advisable, however, there are other times where the opinion or position of the company, announced from the highest levels, can advance an employer’s labor goals or even support corporate or marketing efforts.  For example, allowing employees, investors, customers and/or suppliers know what a company intends or is prepared for can be reassuring and yield positive results.  Informing employees of the realities or risks associated with union may even be considered the ethical or honest thing to do.  When crafted and used properly such comments can be a powerful weapon, both in communicating to employees and the market.  In recognition of this, and acknowledging that unions are rarely silent, self-imposed unilateral disarmament is not always the best option.

To be clear, compliance with the National Labor Relations Act is full of pitfalls, especially under the current aggressively pro-union Board, and comments can result in legal and PR issues.  That said, employers and their executives should start by understanding they too have rights and that Section 8(c) of the Act protects the privilege of every employer to engage in free speech.  Specifically, Section 8(c) guarantees employers to right to communicate establishing:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

This allows employers and executives to, among other things, lawfully communicate in the following ways:

  • Assert facts such as “the employees did not get paid during the strike and ended up losing their jobs after listening to union leaders.“
  • Express opinions, any thing from “I think the unions resulted in the closure of our predecessor’s plants and lay off their employees” to “I think the unions sucked the filling out of the Twinkies and left nothing for the employee’s future.“
  • Share their experiences, for example, “We sat through the discussions with the union during the bankruptcy and let them know we would be forced to lay off employees without concessions but the union refused to agree to a reasonable compromise and the employees all lost their jobs.”

Moreover, the law permits employers to have an affirmative position and policy disfavoring union involvement in their business or asserting a tough line bargaining philosophy.  For example, it is lawful for any employer, or executive, to assert in policy or comment:

  • The Company’s position is that while people should be free to join or not join a union, we believe we are the kind of company where employees will decide they do not need a union to speak for them.  We are committed to informing our employees of the reasons we are opposed to third party interference and taking all appropriate actions to lawfully maintain our union free status.

Given the law, certainly establishing a policy to gag executives on labor issues is an a option, but a more realistic and effective approach is to involve and (sparingly) utilize the top executives in labor relations.  In doing so executives should be guided by established corporate policy, educated and prepared on not only what and when to communicate but the process to make sure communications are both legally and strategically appropriate.

 Management Missives

  • Executives and management alike should feel empowered by labor relations communications, not stifled. This is possible with proper legal oversight and preparation.
  • The cornerstone of any labor relations communications strategy should be a written and established policy detailing the corporate position on labor issues.  Such policies can be phrases as Labor Relations, Third Party Interference, Union Free Status or another similar policy which best encapsulates the corporate position.  In developing the policy is it important both to make sure that it is in compliance with the NLRA and also that it has the approval of the highest levels of executive leadership.  Their buy in can be of paramount importance when and if the policy comes in to play.
  • Executives should not only approve of the policy before it is adopted but time should be invested in making sure they understand the policy and how it can be used by them as a guide and tool to advance the company’s objectives.
  • Executives should be educated, beyond the policy, on the do’s and don’ts related to labor related communications.  Obviously, time constraints will typically not permit a full training but quick instruction during a board or management meeting and refresher emails or notices when labor issues are heating up not only guard against potential liability but provide executives needed tools.
  • As any labor related communication has the potential to lead to an unfair labor practice charge, executives should be advised to work with labor counsel, as well as labor relations and public relations, prior to communicating.  This includes any type of communication, whether it be about an intent to operate non-union, responses to union organizing, issues involved in union negotiations, strike related comments or merely general comment of unions.
  • Remember, no two situations are identical.  Employers and their executives need to think strategically about using their Executive Privilege to communicate lawfully about labor matters.
Posted on by Epstein Becker & Green, P.C.

NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act

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by: Steven M. Swirsky and D. Martin Stanberry

An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.   

The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that may be disruptive, offensive to others, or harmful to morale” or “[t]o solicit employees to support any group or organization, unless sanctioned by UPMC executive management.”

The ALJ, found that the policies, by using the terms and phrases “disruptive”, “offensive” and “harmful to morale” without providing examples or guidance to assist employees in interpreting the policy, “would reasonably be understood to include a spectrum of communication about unions, and … criticism of [the employer’s] working conditions, while permitting widespread nonwork use of the email system for an array of other subjects.” 

The ALJ also found that the policy’s language restricting solicitation was unlawful because it provided managers with discretion to grant or deny solicitation in a manner thatdiscriminates against unions and union supporters.

The ALJ also found unlawful UPMC’s social media policy, which prohibited employees from using web-based applications to describe their affiliation with UPMC, disparage or misrepresent UPMC, or make false or misleading statements about UPMC,  largely the same reasons.

Alluding to an issue decided by the NLRB in the Register Guard decision, the ALJ noted that “a complete ban on employee email use would not raise a legal issue.” Practically speaking however, this is not necessarily true. The current Board has taken an activist stance regarding the potentially discriminatory application of workplace policies and, in the real world, very few employers maintain and enforce absolute prohibitions on the personal use of employer communications and electronic systems. Thus it may be quite difficult to prove consistent and non-discriminatory enforcement of such policies.

 

Posted on by Epstein Becker & Green, P.C.

In A Case Against Retail Clothing Boutique, NLRB Finds Facebook Posts By Non-Union Employees “Classic Concerted Protected Activity”

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By: Jill Barbarino and Steven M. Swirsky

In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge, holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an unfair labor practice under Section 8(a)(1) of the Act.

Significantly, a unanimous three member panel found that the Facebook posts were a “continuation” of the employees’ effort to present their concerns about safety and other working conditions to their employer, the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” and even without the related activity of the employees at work, “the Facebook postings would have constituted protected activity in and of themselves.”

Not only did the Board order the employer to rescind the portions of its employee handbook that the Board found violated the Act as it applied at the location where the charging party and her co-workers had been employed, the Board also agreed with the General Counsel that the employer be ordered to rescind and replace the rules in question on a company-wide basis, explaining why it was doing so to all of its employees.

The employer, Design Technology Group, LLC, d/b/a Bettie Page Clothing, is a wholesale and retail clothing sales company with operations in several states, including an upscale women’s clothing store in San Francisco. Shortly after that store opened, an employee, Holli Thomas, asked both the owner of Bettie Page and the store’s manager, whether the store could close at 7 p.m. instead of 8 p.m. because employees working late at night were being harassed by people on the street after tourists had left the neighborhood and were concerned about their safety. Following a disagreement with the store manager about the request, Thomas, and two other employees, Vanessa Morris and Brittany Johnson, engaged in the following conversation on Facebook:

Holli Thomas – needs a new job. I’m physically and mentally sickened.

Vanessa Morris – It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime [sic] we try to solve conflicts NOTHING GETS DONE!!

Holli Thomas – bettie page would role over in her grave.

Vanessa Morris: She already is girl!

Holli Thomas – 800 miles away yet she’s still continues our lives miserable. Phenomenal!

Vanessa Morris – And no one’s doing anything about it! Big surprise!

Brittany Johnson – “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris – hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!

Six days after the posts, Thomas and Morris were terminated. Johnson was terminated about a month later.

The Board agreed with the ALJ that Thomas and Morris were engaged in “protected concerted activity when they presented concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner and that their Facebook postings were a continuation of that effort.”

The Board went even further to hold that “the Facebook postings would have constituted protected concerted activity in and of themselves” because the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns.”

Finally, the Board held that the conversation about looking at a book relating to California labor law was “classic concerted protected activity” because the conversation related to the “mutual aid and protection” of employees.

The Board also rejected Bettie Page’s argument that the posts were a scheme to entrap Bettie Page into firing them. The Board stated that this argument lacked evidentiary support and even if the employees had posted the comments in the hope that they would be discharged, Bettie Page failed to establish that such conduct was not protected activity under the Act.

In addition, the Board agreed with the ALJ that the provision in Bettie Page’s handbook stating that “[d]isclosure of wages or compensation to any third party or other employee is prohibited and grounds for termination” should be rescinded. The Board also ordered Bettie Page to post a company-wide notice regarding the unlawful handbook provision because the policy had applied not only to Bettie Page’s San Francisco store at issue in the case, but to all other store locations.

This decision evidences the Board’s recent, aggressive approach to social media posts of employees discussing workplace concerns, as well as the application of the NLRA to non-union employees.

In deciding whether to terminate, discipline, or take adverse action against an employee for social media postings, employers must carefully review whether the employee’s conversations, comments, or posts may constitute protected concerted activity under the NLRA.

Click here for additional information on the Board’s position on social media issues.

Posted on by Epstein Becker & Green, P.C.

U.S. House of Representatives Passes Bill That Would Temporarily Strip the National Labor Relations Board of the Authority to Act

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By Steven M. Swirsky and D. Martin Stanberry

Will Congress shut down the National Labor Relations Board?  In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum).  As we reported, in Noel Caning, although the Court of Appeals for the District of Columbia held that President Obama’s recess appointments to the NLRB were unconstitutional and that the Board lacked authority to Act, the Board has continued to decide cases.

The bill, titled “Preventing Greater Uncertainty in Labor-Management Relations” is very similar in purpose to one introduced in January by Senator Mike Johanns (R-Neb.).  Given the Senate’s Democratic majority, Senator Johann’s bill died in committee, and thus, was never brought up for a vote in the Senate. Now that the House of Representatives has passed HR1120, the Senate may have no choice but to consider the issue.

Even if the Democratic-controlled Senate does pass the bill (which is unlikely), President Obama has signaled that he would veto the legislation rather than concede that his recess appointments were invalid or that the Board lacks the authority to act as currently constituted. Since the bill was only narrowly passed in the House of Representatives, it seems improbable that it would be able to garner the necessary two-thirds majority vote in both houses to override a presidential veto.

Absent a change in the composition of the House or Senate, there appears to be little chance that this issue will be resolved through Congressional action.  Though President Obama has nominated three additional candidates to fill the Board’s vacancies, there is no indication when or if the confirmation process will go forward in the Senate, let alone confirm the President’s nominees. As a result, employers may have no choice but to wait and see whether and how the Supreme Court would resolve the matter.  The Board’s petition for certiorari, which must be filed before the Supreme Court can decide whether it will review Noel Canning, is due by the 25th of this month.

Posted on by Epstein Becker & Green, P.C.

President Obama Nominates Three Members to National Labor Relations Board – But Will the Senate Confirm?

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by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky

President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”).  If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members. 

These new nominations – who must be confirmed by the U.S. Senate – were announced against the backdrop of the NLRB v. Noel Canning decision in which the U.S. Court of Appeals for the D.C. Circuit ruled that the NLRB now lacks constitutional authority to act because the recess appointments previously made by President Obama in January 2012 were not valid.  The NLRB plans to appeal the D.C. Circuit’s decision to the U.S. Supreme Court by April 25, 2013. 

The three new nominations include the current NLRB Chairman, Mark Gaston Pearce, and two Republicans, Harry I. Johnson, III, and Philip A. Miscimarra, both lawyers in private practice.  While Mr. Johnson and Mr. Miscimarra both have represented management over their careers, Chairman Pearce came to the NLRB from a practice representing unions.

Mr. Pearce has served as NLRB Chairman since August 2011, and has been a Board Member since March 2010.  Previously, Mr. Pearce, who started his career at the Board’s Buffalo, New York Regional Office in 1979, was a founding partner of Creighton, Pearce, Johnsen & Giroux from 2002 to 2010.  Before founding the Creighton, Pearce firm, Mr. Pearce worked as an associate and junior partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP from 1994 to 2002.

Harry I. Johnson, III is a partner with Arent Fox LLP.  Previously, Mr. Johnson worked at Jones Day from 1994 to 2010.  Mr. Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School.

Philip A. Miscimarra is a partner with Morgan Lewis & Bockius LLP, a position he has held since 2005. Since 1997, Mr. Miscimarra has also been a senior fellow at the University of Pennsylvania’s Wharton Business School.  Mr. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School.

President Obama previously submitted the nominations of Richard F. Griffin, Jr. and Sharon Block, who are currently serving as Board Members but whose recess appointments were struck down as invalid by the D.C. Circuit in Noel Canning.  Member Block came to the NLRB from the US Department of Labor.  Both of those nominations are before the Senate.

WHAT EMPLOYERS SHOULD DO NOW

Considering that all five nominations must now be confirmed by the Senate, where the Republican minority has frequently blocked the President’s nominations, it is unclear how and when the Senate will respond, and whether the NLRB will enjoy a full complement of Members in order to conduct lawful business any time soon.  Merely announcing the nominations will not pave the way immediately for a full, validly appointed NLRB.  Indeed, it may not be until the next Congress, following the 2014 mid-term elections that the Senate even considers a package deal with the White House.  

If a compromise could be achieved and all five Members were sworn-in this year or next, the Board would continue with a liberal, union-friendly majority with Chairman Pearce and Members Griffin and Block.  They could be expected to continue a pro-union agenda, which would certainly bring continued aggressive enforcement and further broadening of the Board’s view of protected, concerted activity and the Act’s application in non-union workplaces.  Moreover, there will be many questions about whether a new NLRB will be able to cure prior decisions that were put into doubt by Noel Canning.   

For now, our advice and recommendations to employers remains the same as following the ground-breaking decision of Noel Canning.  Employers should closely monitor how courts in their jurisdictions decide similar cases challenging the recess appointments, and watch how the Supreme Court will address it next term, should it take the NLRB’s petition for certiorari, while watching to see what happens in the Senate.

Posted on by Epstein Becker & Green, P.C.

Home Healthcare Workers’ Misrepresentation about Anticipated Absences During a Strike Results in Loss of Protected Status under the NLRA, Second Circuit Rules

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by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry

The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.

While the NLRB had held that the workers actions were protected activity under the Act and that they had no obligation to the patients since the union had provided a statutory 10-day notice of the strike to their employer, the Court disagreed. The Second Circuit’s decision was a significant repudiation of the Board’s conclusion that the patients were not in imminent danger because: (1) many of the aides provided individual notice to the patients that they would not be coming to work; (2) the aides were not licensed to perform life-saving medical services; and (3) no actual harm came to any of the patients.

In 2004, 1199SEIU, the union representing Special Touch’s home health aides, served a statutorily required 10-day notice of the union’s intent to conduct a two-day strike.  In preparation for the strike, Special Touch contacted the home health aides scheduled to work that week and asked whether they intended to take time off during the week of the strike (importantly, they did not ask whether they would be participating in the strike and were not obligated to answer). Of the 1,400 employees, 75 indicated that they would be taking time off. When the strike commenced, 48 additional employees who had affirmatively denied such an intent, were absent without notice.

Unsurprisingly, Special Touch had to scramble to make alternate arrangements to serve its patients once it learned the additional 48 aides had not reported to the homes of the patients for whom who they were assigned to care. As the day progressed, Special Touch was able to arrange alternate coverage for all but five of the 48 home health aides. Fortunately, no harm came to any of the 48 patients that received reduced or no care during the day.

When the strike ended two days later, Special Touch immediately reinstated the 75 employees that had provided notice that they would be absent on the days that the union struck. The 48 aides who had been out even though they had said they would work were directed not to report until further notice. Over the next few months, all 48 were given new assignments. None were terminated because of their absence.

The union then filed charges with the NLRB over the employer’s decision not to immediately reinstate the 48 employees who had participated in the strike after telling the employer that they would be reporting to work and taking care of their assigned patients.  The union argued that the decision not to correct their misstatements was not protected activity under the Act and had not lost the protection because there had not been any imminent danger to their assigned patients as a result of their participation. The Board’s Acting General Counsel agreed with the union and issued a complaint.  The employer did not agree and a hearing was held before an Administrative Law Judge who agreed with the AGC that the employees’ participation in the strike was protected even though they had told the employer that they would not be participating and would be going to their patients’ home to provide care as assigned.  The Board agreed with the ALJ and upheld his decision after the employer appealed.

Fortunately for patients and employers alike, the Court held that there was no reasonable basis for the Board to conclude that the 48 home health aides had not placed their patients in imminent danger, and consequently, lost the protection of the Act.

The Court based this conclusion on a reasoned examination of the applicable facts and law, finding that individual notice provided to patients by their aides did not significantly mitigate the risk of danger because many patients that receive home healthcare services “do not appreciate the degree of care that their conditions require.”  The Court also emphasized the fact that the non-performance of even general or menial tasks such as cleaning, shopping and bathing the patient creates a risk of imminent danger. Other duties, such as “reminding customers to take their medication, and observing customers for signs of immediate distress” are surely intended to mitigate the risk of danger.

This decision by the Court does not require employees to tell their employer whether they intend to participate in a strike. Nor does it require the employee even respond to the employer’s query. In fact, the employees would not have lost the protection of the Act if they had simply not answered the employer’s inquiries about whether they planned to report on those days, because the 10-day notice from the union serves to put the employer on notice of their intent to strike. In fact, “[h]ad Special Touch not reached out to their aides in advance of the strike in an attempt to plan ahead… the aides would not have been required to call in.”

It is only when the employee controverts the intent of the 10-day notice that they lose the protection of the Act. As the Court concisely explained, “[w]hat employees cannot do is mislead their employer into expecting their presence when the lack thereof will result in foreseeable imminent danger.”