Labor Employment Law Blog

By James Hays and Rebecca Hirschklau

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.

By James Hays and Rebecca Hirschklau, with assistance from Summer Associate Molly Masenga

Last week, in an effort to increase its presence and exposure in the workplace, the National Labor Relations Board (“NLRB”) launched a new webpage to define and provide specific examples of what it considers “concerted activity.” As you may be aware, the National Labor Relations Act’s (“NLRA”) Section 7 provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

By Gregg Fisch and Jenny Chang

On January 4, 2012, President Obama used his recess powers to appoint three members to the National Labor Relations Board (“NLRB” or “Board”). These appointments were made one day after the NLRB lost a quorum on its five-seat board following the expiration of the 2010 recess appointment of NLRB Member (and former top lawyer with the SEIU and AFL-CIO) Craig Becker. Under the Supreme Court’s 2010 decision in New Process Steel, L.P. v. NLRB, the Board must have a quorum of three members to decide cases and issue enforceable decisions. These new recess appointments restored the Board’s quorum, thereby avoiding a shutdown of the Board’s operations.

As an UPDATE to an earlier article, please take notice that, on October 5, 2011, the National Labor Relations Board (“NLRB” or “Board”) announced that it would delay the effective date of its August 25 final rule that will require employers to post an NLRB-issued notice detailing employees’ unionization rights under the National Labor Relations Act (“NLRA”). Based on this new announcement, the effective date has been pushed back from November 14, 2011, until January 31, 2012. As a result, employers will have additional time to comply with the NLRB's unionization rights notice rule, as explained in the earlier posting and set forth again as follows for your ease of reference.

On August 25, 2011, the National Labor Relations Board (“NLRB” or “Board”) issued a final rule which, effective January 31, 2012, will require employers to post an NLRB-issued notice detailing employees’ unionization rights under the National Labor Relations Act (“NLRA”).

The National Labor Relations Board (“NLRB” or “Board”) has proposed a number of amendments to the representation election process that could significantly impact the potential unionization of companies throughout the United States. Specifically, on June 22, 2011, the NLRB published a Notice of Proposed Rulemaking in the Federal Register, proposing numerous and far-sweeping amendments to the existing rules and regulations governing representation elections. According to the Board, the amendments are intended to expedite representation-case procedures and “eliminate unnecessary litigation” concerning election-related issues. If finalized, the proposed rules likely would significantly alter the manner in which representation cases are administratively handled, as well as how an employer can respond to unionization efforts following the filing of an election petition.

On April 20, 2011, the National Labor Relations Board, in what many are calling the strongest signal yet of the pro-labor bent of the President Obama era Board, issued a complaint seeking to reverse the decision by Boeing Co. to build a second production line for its new 787 Dreamliner at a non-union plant in South Carolina. Boeing, who has a long-standing bargaining relationship with the International Association of Machinists and Aerospace Workers ("IAM"), announced in 2007 its plan to assemble the 787 Dreamliner at its Washington state, Puget Sound facility - where IAM represents the maintenance and production employees. In 2009, Boeing announced that it would open a second production line for the 787 Dreamliner at its non-union North Charleston, South Carolina plant. According to the complaint, in the lead up to and in the wake of that announcement, Boeing is alleged to have made numerous statements citing the IAM-represented employees' past strike activity and the possibility of future strikes as an overriding factor in deciding to locate the second production line at its South Carolina plant. The compliant alleges that Boeing's public statements, in violation of the law, were coercive to employees and that its decision was motivated by a desire to retaliate for past strikes and chill future strike activities.

On January 27, 2011, another California Court of Appeal held in Ralph’s Grocery Co. v. United Food and Commercial Workers Union Local 8 that the Moscone Act and Labor Code section 1138.1, both of which give special protections to union picketing, are unconstitutional because they violate constitutional free speech protections. This is the second Court of Appeal decision within the past year to reach this conclusion.

A recent case has provided important guidance as to whether employers may restrict the types of speech that take place on their property. In Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, a California Court of Appeal addressed the issue of picketing outside of a storefront.

Earlier this week, the federal Second Circuit Court of Appeal affirmed the Eastern District of New York's dismissal of the Railway Labor Act ("RLA") and state law claims that had been filed by former American Airlines flight attendants against American Airlines and their union.

In 2001, the United States Supreme Court criticized the National Labor Relations Board’s (“Board”) interpretation of the definition of a supervisor under Section 2(11) of the National Labor Relations Act (“NLRA”) as applied to charge nurses in the healthcare industry.  NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).  Yesterday, the Board issued a decision that squarely addresses the Supreme Court’s criticism.  Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (2006).  In the Oakwood decision, the Board changed course, and will now interpret Section 2(11) in a way which will make it easier for a healthcare employer to argue that charge nurses are statutory supervisors who should not be included in an RN bargaining unit.  Of course, the decision will also have broad application and will apply to supervisory employees in all industries.

A recently published opinion of the California Court of Appeal, Zavala v. Scott Brothers Dairy, Inc., expanded on the 2005 Cicairos v. Summit Logistics, Inc. decision by holding that employees subject to a collective bargaining agreement cannot be required to arbitrate claims for rest period and wage statement violations, even if those claims have already been grieved and resolved by the union representing those employees.

After twice affirming a district court's decision that two California statutes were preempted by the National Labor Relations Act ("NLRA"), a divided en banc panel of the Ninth Circuit Court of Appeals reversed itself last week by a 12-3 vote in Chamber of Commerce v. Lockyer. The majority opinion found that the two statutes at issue were not preempted by the NLRA and did not violate the First Amendment.