NLRB, State Legislatures Remain Active Despite Lull in Major Developments
June 15, 2012
Compared to the major, almost weekly events in federal courts involving the National Labor Relations Board from mid-April to mid-May, this past month has been comparatively quiet. Nonetheless, despite the relative calm, both the National Labor Relations Board—particularly with the possible expansion of Specialty Healthcare that we discussed in detail last week—and state legislatures have been making news in recent weeks.
First Step toward Quickie Election Rule Appeal Underway
In mid-May, U.S. District Judge James Boasberg ruled that the Board did not have a quorum when Chairman Mark Pearce and then-Member Craig Becker voted on quickie election rule changes without Member Hayes present. Judge Boasberg observed that Member Hayes had not participated in the Board’s electronic voting process on December 16, 2011, and ordered the Board to return to its previous election rules immediately. We noted that the reprieve from the Board’s onerous quickie election rule could be temporary.
This week, the Board filed a motion asking the court to reconsider its ruling, and provided evidence that it claims shows “Member Hayes was present in the Board’s electronic voting room.” The Board’s motion contends that Member Hayes had “simultaneously participated in the votes taken on other matters, and deliberately abstained from voting on” the quickie election rule. The Board argues that this evidence demonstrates that Member Hayes was “present and participating in the very same room and at the very same time that this vote was held,” and that the Board therefore had a quorum giving it authority to pass the new election rule.
The new facts that the Board presents ignore the second part of the court’s ruling. The court also held that the Board had a policy where, “in situations where a particular Board Member has not voted and immediate action is desired, the Executive Secretary or Solicitor may convey, by phone or email, a request to act.” Despite this undisputed practice, the court found that the Board had not attempted to follow up with Member Hayes, or even confirm whether he intended to vote at all. The Board’s latest motion does not address this aspect of the court’s order. Losing parties commonly file motions for reconsideration as a precursor to an appeal, but courts rarely grant them. We will monitor the court’s response to this ruling and any other follow-on appeals after the ruling.
Terence Flynn Resigns from Board
After the Board’s Inspector General expanded initial ethics charges, Terence Flynn recused himself from all Board work and submitted his resignation from the Board effective July 24. President Obama had appointed Flynn, along with two other members, as controversial “emergency recess” appointments in early January. NLRB Inspector General Dave Berry claimed in late May to have uncovered additional evidence that Flynn, as a Board attorney, had leaked confidential information to former Board Chairman Peter Schaumber. Berry claimed that Flynn had improperly given Schaumber several draft dissents and a draft decision, as well as other non-public information. In a joint statement with the remaining members of the Board, Chairman Pearce said that in securing Flynn’s resignation, the Board and staff had “worked tirelessly to reach a resolution acceptable to all concerned.” President Obama had no immediate comment on either Flynn’s resignation or a possible replacement.
National Right to Work Legal Defense Foundation Challenges Recess Appointments
The impending resignation of Terence Flynn does not resolve the continuing controversy over President Obama’s two other January “emergency recess” appointments to the Board. An Oregon bus driver is asking that the Board disqualify Members Sharon Block and Richard Griffin from his pending case. Richard Harman, a school bus driver from Sandy, Oregon, filed his challenge earlier this month in his dispute with a Teamsters local. Lawyers from the National Right to Work Legal Defense Foundation, which has also challenged the appointment of Members Block and Griffin in federal court, drafted the challenge.
Acting General Counsel Releases Third Memo on Social Media Cases
The Board’s Acting General Counsel, Lafe Solomon, issued a third memorandum on social media cases. Mr. Solomon issued two previous memos on social media cases, both of which largely involved discharges based on Facebook posts, in January 2012 and in August 2011. This third memorandum, however, focuses exclusively on seven cases involving employer social media policies. Together with the ABA Section of Labor and Employment Law, we will be releasing a comprehensive overview of the latest memorandum in the coming weeks.
Maryland to Add Union-Member Privilege
Maryland is set to join Illinois by enshrining a union agent-union member privilege into law. The state’s legislature recently passed a statute that would protect from disclosure any information that a union or its agent receives in confidence from a union member during grievance proceedings by extending “the confidentiality clause applied to relationships between physicians and patients, psychologists and patients, clergy and parishioners, and attorneys and clients to unions and employees.” The Maryland law will take effect on October 1, 2012. Illinois passed a similar law in 2005.
Right to Work, Collective Bargaining Battles Shift to Michigan
With the defeat of the union-led recall attempt against Governor Walker in Wisconsin, the labor/management battles in the Midwest appear to have shifted to Michigan. A pro-union group has submitted a petition for a state constitutional amendment guaranteeing collective bargaining rights for both public and private sector workers. The amendment, which likely will appear on the November 2012 ballot, is an attempt to thwart the Republican-controlled legislature’s consideration of dozens of bills that would sharply limit collective bargaining rights, strikes, and mass picketing. Legislators have proposed a hybrid right-to-work bill that would eliminate union membership as a condition of employment but affirm the legal right to collectively bargain for pay, benefits and work conditions. One bill currently in committee would ban picketing that prevents work from taking place, obstructs the entrance of a work site, blocks public roads, or takes place at a private residence. Another bill would repeal an existing law that prohibits employers from recruiting or advertising for employees to replace striking workers without notifying applicants that it is offering employment to replace those employees.