Wyatt Employment Law Report


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Republican Senators Block GPO Nominee Over Senate’s Failure to Confirm NLRB Nominee

By Edwin S. Hopson

In an article by Josiah Ryan posted on www.thehill.com on October 19, 2011, it was reported that Senators Orrin Hatch (R) and Johnny Isakson (R) have prevented confirmation of William J. Boarman, the President’s nominee for head of the U.S. Government Printing Office, because the Democratically-controlled Senate has not scheduled a vote on the nomination of Terence Flynn, a Republican, to be a Member of the National Labor Relations Board. Mr.Flynn was nominated by President Obama on January 5, 2011, but to-date the Senate Health, Education, Labor and Pensions Committee has not approved the nomination, the first step in the Senate’s process.

Currently, there are three Members on the five-member Board:  Chairman Mark Pearce (D), Member Craig Becker (D) and Member Brian Hayes (R).  It appears that on December 31, 2011, the recess appointment of Member Becker will expire.  Should Mr.Flynn be confirmed by the Senate, then after December 31, 2011, the Republican Members would be in the majority.  If Mr. Flynn (or another nominee) is not confirmed this year, then the NLRB would likely be reduced to just two Members and be unable after December 31, 2011, to issue decisions or take other actions under the recent Supreme Court decision in New Process Steel v. NLRB, 30 S. Ct. 635 (2010).


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Is that an Escaped Prisoner or the Telephone Repairman at My Door?

By Tyson Gorman

In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.


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NLRB Expands Right to Handbill to Private Property in Certain Circumstances

By Edwin S. Hopson

In 1997, off-duty employees of Ark Las Vegas Restaurants (“Ark”), a food concessionaire at New York New York Hotel & Casino (“NYNY”) in Las Vegas, Nevada, engaged in handbilling in the porte-cochere area of the casino and distributed their handbills to customers of NYNY’s hotel, casino, and restaurants as those customers entered NYNY’s facility. The purpose of the handbilling was in furtherance of and to publicize their organizing campaign at Ark whose employees were unrepresented.  In 1998, the handbilling was repeated in the same areas by off-duty Ark employees.  On both occasions, NYNY called the police who issued trespass citations and escorted the Ark off-duty employees off NYNY’s premises. 

Unfair labor practice charges were filed alleging violations of Section 8(a)(1) by NYNY.  After complaints were issued, administrative law judges found that NYNY had violated the Act, and the National Labor Relations Board affirmed issuing its decisions in 2001. See New York New York Hotel & Casino, 334 NLRB 762 (2001); New York New York Hotel & Casino, 334 NLRB 772 (2001).  The cases were consolidated for review by the U.S. Court of Appeals for the District of Columbia Circuit.  The Court of Appeals remanded the cases and instructed the Board to consider the distinction between rules of law applicable to employees and those applicable to nonemployees, see Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and to answer specific questions pertaining to application of those distinctions to the facts presented in the NYNY cases.  New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002).  Subsequently, the Board in 2003 accepted the remand and in 2007 issued a notice of oral argument and conducted an oral argument in the cases. Numerous amici briefs were filed in the consolidated cases.

On March 25, 2011, the Board, in a 3 to 1 decision, in New York New York Hotel & Casino, 356 NLRB No. 119 (2011), reaffirmed its holdings from 2001, and found NYNY violated Section 8(a)(1) of the Act by its actions in 1997 and 1998 towards the Ark off-duty employees who were handbilling on its property. Continue reading


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NLRB Finds Employer and Union Pre-Recognition Agreement Was Lawful

By Edwin S. Hopson

In a press release issued December 6, 2010, the National Labor Relations Board announced that it had found, in a 2-1 decision, that an auto parts manufacturer, Dana Corporation, and the United Auto Workers union did not violate the National Labor Relations Act law by agreeing to ground rules by which the UAW would be recognized if a majority of employees signed cards in favor of it, and by creating a framework for any future collective bargaining agreements. The UAW had a long relationship with Dana and already represented workers at 9 of some 30 facilities Dana has in the United States.  The letter agreement applied to all of its non-union plants in the U.S.

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NLRB Adopts New Remedial Policies Regarding Interest on Backpay and Notices to Employees or Members

By Edwin S. Hopson

In two decisions issued October 22, 2010, the National Labor Relations Board adopted two new remedial policies:

●adding daily compound interest to backpay and other monetary awards, and,

●requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases.

The Board’s stated goal was making NLRB remedies more effective as well as more in line with current legal and workplace practices.

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The NLRB Rules “Bannering” Is Not Picketing or Otherwise Conduct Violative of Section 8(b)(4)(ii)(B) of the NLRA

By Edwin S. Hopson

In United Brotherhood of Carpenters Local 1506 (Eliason & Knuth of Arizona),, 355 NLRB No. 159 (2010), the National Labor Relations Board held that “bannering” by a union at locations associated with secondary employers did not constitute picketing nor was it sufficiently akin to picketing to constitute a threat or coercion within the meaning of Section 8(b)(4)(ii)(B) – secondary boycott provisions of the National Labor Relations Act.

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