Wyatt Employment Law Report


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NLRB Attacks Employee Handbook Rules

By Edwin S. Hopson

In early June 2014, a National Labor Relations Board Administrative Law Judge (ALJ) in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, ruled that a number of handbook provisions violated the National Labor Relations Act. The handbook applied to employees who largely worked in the field on customers’ premises.

The challenged handbook rules were:

  1. A rule prohibiting employees from disclosing the location and telephone number to outsiders of the customer to which the employee was assigned.
  2. A rule stating that no employee shall disclose customer information to outsiders, including other customers or third parties and members of one’s own family.
  3. A prohibition of boisterous or disruptive activity in the workplace.
  4. A rule against initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.
  5. A series of rules prohibiting employees from taking photographs or making recordings at the workplace without prior authorization by management.

The ALJ largely held for the NLRB’s General Counsel and issued an order requiring that the company cease and desist from:

(a) Maintaining a provision in its employee handbook that requires employees not to disclose the location of their customer assignment to outsiders.

(b) Maintaining a provision in its employee handbook that prohibits employees from engaging in “boisterous” activities in the workplace.

(c) Maintaining a provision in its employee handbook that prohibits employees from initiating or participating in the distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.

(d) Maintaining a provision in its employee handbook that prohibits employees from taking photographs or making recordings at the workplace without the prior authorization by management.

The case likely will be appealed to the Board in Washington, D.C., and thereafter to a court of appeals.

This case is a good example of how closely the NLRB will scrutinize employee handbook provisions. This can be particularly problematic if the employer finds itself in the midst of a union organizing campaign.  Thus, if the employer wins the election, it may be set aside should there be handbook provisions in place that the NLRB finds objectionable.

For more information in the Louisville, KY, Lexington, KY or New Albany, IN areas, contact Ed Hopson.

For more information in the Memphis, TN, Nashville, TN or Jackson, MS areas, contact Odell Horton.


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House Committee Conducts Hearing on NLRB’s Proposed Changes to Election Rules

By Edwin S. Hopson

On March 5, 2014, the House Committee on Education and the Workforce conducted a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” During the hearing, chaired by Representative John Kline (R-MN), some members of the committee claimed that the recently proposed changes to union representation election rules by the National Labor Relations Board would undermine long-standing rights of workers, employers, and unions.

In opening remarks, Kline stated, in part: “For many of my colleagues, this hearing might evoke a sense of déjà vu. Not too long ago we debated a nearly identical ambush election rule proposed by the National Labor Relations Board that would stifle employers’ free speech and cripple workers’ free choice. In 2011 the House passed with bipartisan support a bill that would have protected the rights of workers, employers, and unions by reining in this radical proposal.”

The rule changes were first proposed in 2011, but were struck down by a federal judge on procedural grounds.  They were then revived last month.  According to Kline, the NLRB’s proposed rule changes would (1) significantly shorten the time between the filing of a union election petition and the actual election, (2) provide employers just 7 days to find legal counsel and prepare for a representation election hearing before the NLRB,  (3) force employers to raise all issues before the hearing or lose the right to raise those issues during the hearing; and (4) delay answers to important legal questions until after employees have voted. Additionally, Kline claimed that the proposed rule changes would jeopardize workers’ privacy by divulging sensitive information, such as email addresses, to union organizers. Continue reading


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NLRB Appeals Ruling Enjoining its New Regulations Meant to Speed Up Union Elections

By Edwin S. Hopson

On August 1, 2012, we reported that in Chamber of Commerce of the United States, et al. v. National Labor Relations Board, Civil No. 11-2262, the U.S. District Court for the District of Columbia had enjoined on May 14, 2012, the NLRB’s implementation of its new regulations relating to speeding up representation elections. The district judge based his ruling on a lack of quorum of NLRB board members.  Thereafter, the NLRB filed a motion in the district court requesting that the judge alter or amend the judgment to permit it to implement its new election regulations, which was denied on July 27, 2012.

As predicted, on August 7, 2012, the NLRB filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit.  It will probably be many months before the Court of Appeals rules on the NLRB’s appeal.


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NLRB Members File Dissenting and Concurring Statements Regarding New Election Rules

By Edwin S. Hopson

On June 22, 2011, the National Labor Relations Board issued a notice of proposed rulemaking proposing various amendments of its rules governing the filing and processing of representation election petitions. On December 22, 2011, the NLRB issued a final rule amending its regulations which takes effect today. The final rule provided that any dissenting or concurring statements would be published separately in the Federal Register prior to the rule’s effective date.

Member Hayes’ dissent was just published in the Federal Register, along with a separate concurrence by Chairman Pearce responding to Hayes’ dissent.

In his dissent, Hayes points out that the new rule (1) eliminates the right to seek pre-election review of a regional director’s decision and direction of election; (2) alters the role of the hearing officer in deciding what evidence may be introduced in a pre-election hearing; (3) generally prohibits the filing of briefs after a pre-election hearing; (4) eliminates the automatic right to seek review at the Board in post-election disputes, a right previously included in stipulated election agreements; and (5) most importantly, eliminates the pre-election right to litigate all issues not deemed relevant to the question concerning representation, such as voter eligibility or unit placement of individuals who would constitute 20% or more of a bargaining unit.

Member Hayes points out that the new rule is the subject of pending litigation in the U.S. District Court for the District of Columbia brought by the U.S. Chamber of Commerce.

The full text of the concurrence and dissent can be found at:

https://www.federalregister.gov/articles/2012/04/30/2012-10263/representation-case-procedures#h-24


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Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules

By Edwin S. Hopson

According to a press release issued today by U.S. Senator Mike Enzi (R-Wyo.), the ranking member of the Senate Health, Education, Labor and Pensions Committee, the Senate rejected a resolution that would have nullified the NLRB’s revised union representation rules set to go into effect April 30, 2012.  The vote was reportedly 54 to 45 against adotption of the resolution. These changes will speed up the NLRB’s election process by which unions gain the certification to represent private sector employees.

Enzi stated, in part: “The NLRB will be tipping the scale with this ambush elections rule, which will go into effect next week.”


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NLRB Acting General Counsel Issues Report on NLRB Activities for FY 2011

By George J. Miller

On March 8, 2012, Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board, issued a Summary of Operations for fiscal year 2011 (October 1, 2010 — September 30, 2011), containing preliminary figures for the fiscal year.  This data reveals a continuing slowdown in labor union activity across the country, especially in representation election cases.  Some of the data includes:

  • total case intake during FY 2011 was 24,990, compared to 26,585 cases in FY 2010, representing a 5.9% decrease in overall intake;
  • unfair labor practice case intake was 22,177, a 5.1% decrease from the FY 2010 intake of 23,381;
  • total representation election case intake was 2,813, a 12.2% decrease from the FY 2010 intake of 3,204.

In addition, however, the NLRB was aggressive in pursuing unfair labor practice cases, most of which were against employers. The NLRB reported:

  • The Regional Offices won 87% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2011.
  • A total of $60,514,922 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, with 1,644 employees offered reinstatement.

The 87% win rate is something which employers (and unions) charged with unfair labor practices need to be very aware of in deciding whether to defend a case through trial or try to settle early in the process.


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Joint Resolutions Proposed in the House and Senate to Overrule NLRB’s New Election Rules

By Edwin S. Hopson

On February 16, 2012, the U.S. House Education and the Workforce Chairman John Kline (R-MN), joined by Rep. Phil Gingrey (R-GA) and Rep. Phil Roe (R-TN), introduced H.J. Resolution 103 under the Congressional Review Act (5 U.S.C. §§801-808) that would block the National Labor Relations Board’s December 21, 2011, new representation election rules intended to speed up and streamline the Board’s union representation election process, to be effective April 30, 2012. Sixty-five House members as of now support the resolution.

A companion resolution (S. J. Res. 63) was also introduced in the U. S. Senate by Senator Mike Enzi (R-WY) and Senator Johnny Isakson (R-GA).  S. J. Res. 63 has the support so far from 44 Senators.

The December 2011 rules were only a portion of proposed changes announced in June, 2011.  Since December, NLRB Chairman Pearce has indicated he intended to bring up for consideration later this year the remaining proposals designed to speed up the election process. 

At a press conference on February 16, Chairman Kline stated: “With the addition of these three non-recess ‘recess’ appointees [to the NLRB], it’s very clear to us that Chairman Pearce from the NLRB intends to go back and pick up some of those provisions that were left out from the rule passed last year. We are very concerned about this board and its agenda. We’re pleased the Senate is going forward with this resolution of disapproval and we look forward to being right there with them.”

The Congressional Review Act was enacted by the Congress as a part of the Contract with America Advancement Act of 1996 and is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. The law permits the Congress to review, on an expedited basis, new federal regulations issued by government agencies and, by passage of a joint resolution, overrule the regulations.  It would appear that the Republicans in the House may be able to pass the resolution, but it would seem more doubtful in the Democrat-controlled Senate.