The Board’s notice-posting rule has had a long and contentious history.  The original petition was filed in 1993, but it was not until 2010 when the Board, by then with a majority of members appointed by President Obama, issued a proposed rule.  The final rule was published in August, 2011, and litigation challenging the Board’s authority began almost immediately.  As we have reported before, the Board had only mixed success.  One district court upheld the rule only in part, and another struck down the rule completely.  While those cases were on appeal, the posting requirement was stayed pending completion of judicial review.

Two of the panel’s three judges would have gone further, specifically rejecting the claim that the notice posting rule – never required in the previous sixty-four years of the Act – was authorized by Section 6 of the Act, which permits the Board to carry out the Act. The court readily concluded that while the notice-posting rule may be seen as “prophylactic,” there was nothing about it that was necessary to carry out the Act’s substantive provisions.

The Board has not yet reacted to this defeat, and what its next steps are remain unclear. Given the breadth of the Circuit court’s ruling, it appears doubtful that the Board could revise its rule to comply with the court’s analysis. Equally unknown is whether the Board will seek review by the United States Supreme Court.

For employers, at least one reaction does seem clear: it is unlikely that employers will be required to post the NLRB’s notice any time soon, if ever. The court vacated the rule, so the rule is simply without effect unless the court’s decision is reversed. (Federal contractors should remember, however, that they face an independent obligation to post a similar notice, as we reported.  That obligation remains in full force.  Moreover, the implications of the court’s opinion are potentially far-reaching, and the court’s analysis may call into question numerous posting requirements under other federal statutes.

If you have questions concerning the requirements to post federal labor law advice, or any other posting requirement, please contact your Stoel Rives labor & employment attorney.

The Board's December 2012 Decisions

In Alan Ritchey, Inc., the Board created an entirely new obligation for employers operating a workplace where a union has been recognized or certified, but no collective bargaining agreement has yet been agreed to. In this setting, the Board concluded, an employer must notify the union and provide it with an opportunity to bargain over individual discretionary discipline before the discipline is imposed. The Board made clear that this obligation requires sufficient advance notice for meaningful bargaining. Moreover, the employer must respond to union requests for information regarding the discipline before such meaningful bargaining can occur. The Board dismissed concerns that the new obligation it had created would be unduly burdensome for employers, suggesting that there may be circumstances in which an employee could be removed from a job prior to bargaining, when leaving employee on the job might present “a serious imminent danger to the employer’s business or personnel.”

The Board also issued decisions that will affect a more limited number of employers. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over a “public charter school” operated by a non-profit corporation. In Latino Express, the Board changed various aspects of how it implements back pay awards. If these issues are of concern to you, please contact your Stoel Rives labor lawyer.

Finally, in American Baptist Homes of the West d/b/a Piedmont Gardens, the Board overruled a 35-year old precedent and concluded that employers were not entitled to keep witness statements confidential from a requesting union. Under the Act, employers have the obligation to furnish the union with information relevant to employees’ terms and conditions of employment. This includes information relevant to specific instances of discipline, including information pertaining to witnesses to the incident leading to discipline. Since the late 1970s, however, the Board had recognized that this obligation did not extend to formal witness statements collected by an employer, where an employee had been promised confidentiality and reviewed and approved the witness statement. In Piedmont Gardens, the Board rejected this rule, instead concluding that witness statements are merely another type of confidential information, about which employers must balance their confidentiality concerns with the union’s need to review the information. Even when the employer has legitimate confidentiality concerns, the employer must be willing to bargain with the union about a possible accommodation to address the union’s need for the information.  The Board was unconcerned about the possibility for intimidation or coercion of witnesses, in the absence of clear proof.

What Do These Decisions Mean For 2013?

Each of these decisions is a radical departure from existing law, as the Board implicitly acknowledged. In all three, the Board expressly overruled prior case law.  Moreover, the Board admitted that it would work an injustice to apply the decisions in Alan Ritchey, WKYC-TV and Piedmont Gardens retrospectively. Thus, the new obligations created in those cases will only be applied to cases occurring after the decisions were issued.

Prospective application is cold comfort to employers now attempting to deal with these cases on an ongoing basis. The Alan Ritchey decision provides little guidance as to what might amount to the “exigent circumstances” preventing removal of the employee prior to the bargaining the Board now requires. Moreover, the decision is unclear as to the extent and duration of that bargaining. The Board did not address, for example, the delay that could be caused by responding to union information requests prior to such bargaining. Perhaps even more troubling, the Board seemed unconcerned about the fundamental revision it was making to the terms and conditions of employment it ordered for affected employees. Even though never yet covered by any collective bargaining agreement, these at-will employees were no longer truly at-will employees.

WKYC-TV offers no offset for the bargaining leverage taken away from the employer, which must now continue to provide financial support to the union with which it is involved in contract negotiations, regardless how acrimonious those negotiations might be. In Piedmont Gardens, the Board appeared unwilling to give any credence to the notion that bargaining unit employees may face coercion or retribution from their union or their pro-union co-workers if their identity must be revealed to the union.

Finally, employers must carefully consider what the Board’s actions imply for what may be in the future. The Obama Board has demonstrated a complete willingness to reverse decades-old precedent, so long as overturning that precedent helps unions. The recent Board cases emphasize that employers dealing with unions are entering an era of unprecedented uncertainty. For example, Alan Ritchey arose only in the context of a newly certified union, bargaining for its first contract. Will the Board extend Alan Ritchey to cases arising after a collective bargaining agreement has expired, before a successor agreement has been finalized? Given the Obama Board’s willingness to change well-settled rules, employers should proceed continuously when determining their next steps. If you face any of the issues raised by these recent Board actions, you should your contact your Stoel Rives labor lawyer.

The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts.  On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation elections.

Employers and their representatives have been concerned about the Board’s new election rules since they were issued in September.  See our previous posting here.  Employers’ concerns were heightened when the Board’s Acting General Counsel issued a “Guidance Memorandum” directing the Board’s Regional Offices on how to implement the new rules.  That Guidance Memorandum is available here.  That Guidance Memorandum articulated several “best practices” that would further accelerate the election process.

In response to the new rules, the US Chamber of Commerce and other groups sued the Board, citing a number of substantive and procedural objections to the new rules.  Judge James Boasberg (an Obama appointee) struck down the Board’s decision solely on procedural reasons: the absence of a quorum.  Just two years ago, the United States Supreme Court had emphasized the importance of the Board having a minimum of three members to act.  The court had emphasized in New Process Steel that the quorum requirement is not, under the Taft-Hartley Act, a mere “technical obstacle.”  Ironically, concern about the then-impending loss of a quorum in December, 2011, caused the Board to rush its normal internal processes.  Member Hayes had previously expressed his opposition to the proposed rules.  When the final proposed rules were circulated among the three Board members, member Hayes did not participate – but the two member majority adopted the rules anyway.  The District Court concluded that the Board thus acted without a quorum:

“According to Woody Allen, 80% of life is just showing up.  When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

In the absence of a lawful quorum, the rules were not properly adopted, and therefore must be struck down.  The judge expressly did not reach any of the substantive objections to the rules.

This will likely raise substantial uncertainty in the near term.  The Board could attempt to readopt the rules with its current membership – but doing so would only be more controversial: any quorum relying on the President’s “recess” appointments to the Board (made at a time when the Senate was not in recess!) will be subject to further attack.  It is also not clear what course Regional Offices will take as to elections that were being handled under the now-stricken rules or what effect will be given to the Acting General Counsel’s “Guidance Memorandum.”

Employers should stay tuned for further developments – and if you receive a union election petition you should call your Stoel Rives labor lawyer immediately!

Once again, employers are being given an old line: we are from the federal government and we’re here to help you . . . with your office decorating. Shortly after his inauguration, President Obama issued Executive Order 13496 (the “Order”). The Order directed that all federal contractors post a notice to their employees advising the employees of their rights under the federal labor laws. The Order required the United States Department of Labor to prepare implementing regulations, including the text of the posting. After a year’s work, the Department has completed its work, and the required poster is now available. Federal contractors and all subcontractors must begin posting the required notice by June 19, 2010.

 Posting requirements are not new for federal contractors. In the 1980s, the first President Bush required contractors to post a notice advising employees of their rights to refrain from supporting unions’ political activities (the so-called “Beck” notices named after the U.S. Supreme Court case addressing the issue). President Clinton issued an executive order rescinding the Beck poster requirement; the second President Bush then reinstated the posting obligation. No surprise – in the Order President Obama again rescinds the obligation to post the Beck notice.

The new poster is available from the Department of Labor’s website here. The poster generally advises employees about their rights to engage in protected concerted activity under the National Labor Relations Act, as well as their right to refrain from engaging in that activity. The poster also describes the industries and employees that are not subject to the NLRA. Generally, the poster does a fair job of describing employee rights, and unlawful actions by both employers and unions. Of course, a single 11-inch by 17-inch poster cannot describe all of the complexities that have developed in the 75 years of NLRA enforcement. For example, health care employers should note that the poster does not even attempt to address the special rules applicable to various union activities in patient care areas.

The obligation to post the notice applies to all federal contracts that are above the “simplified acquisition threshold” applicable to federal contracts. Generally, the simplified acquisition rules are applicable to contracts with a total value less than $100,000. These provisions of the federal acquisition regulations are sometimes complex, and employers with questions as to their coverage should consult their attorney.

Federal contractors are required to include a contract provision requiring posting of the notice in all subcontracts, with a value of more than $10,000. Thankfully, in the final regulations the Department backed off its original proposal that subcontracts had to include the full text of the poster; now contractors can satisfy their obligations in this regard by incorporating the regulation by reference. Contractors should note that among the requirements of the contract clause is the obligation for subcontractors to include the provision in their contracts with their subcontractors; the Department’s regulations thus expressly require all businesses performing work on the federal contract to post the notice, regardless of their subcontract “tier” or whether the subcontract might itself be under the simplified acquisition threshold.

The poster must be physically displayed in the normal “conspicuous places” other employment related posters are located. The notice must be posted at all locations on which work on the federal contract is performed or is being allocated to the federal contract. When a substantial portion of the workforce does not speak English, the notice must be posted in the language spoken by those employees. When the employer routinely provides employees notices by electronic means, the employer must do so in this instance as well, typically by providing a link to the Department of Labor website.

What is a federal contractor or subcontractor to do?

For federal contractors or subcontractors that are already ubiquitously unionized, the poster may not cause any substantial headaches. Indeed, reminding unionized employees that there are certain things their union cannot do, as the poster plainly does, may not be a bad thing. For federal contractors or subcontractors that are not currently unionized, however, substantial issues are raised – especially if the employer wants to remain union-free. The new poster may raise employees’ awareness of their rights under the NLRA. It should also raise union-free employers’ attention to a systematic union avoidance program:

• Nothing in the Executive Order or the Department’s regulations prevents an employer from posting its own notice, right alongside the newly required poster.

• Employers should remind employees that it is official company policy that the employer does not believe a union is necessary or appropriate.

• The employer should remind employees of the advantages they enjoy by being union-free.

• If the company has not reviewed its nonsolicitation and nondistribution policy, it should be reviewed promptly to make sure that all of its provisions are in compliance with the law. If the company does not have a nonsolicitation and nondistribution policy – implement one!

• Make sure that your nonsolicitation and nondistribution policy, and any other policies or practices that might impact employees or others engaging in union organizing, are applied in a fair and nondiscriminatory fashion.

Of course, before undertaking any these actions, federal contractors or subcontractors should consult with their labor law attorney.