Update on Employment Law · What Does A Complaint Look Like? • Complaint must either explicitly or implicitly communicate a belief that the conduct violates an employment discrimination

Update on Employment Law

What You Need to Know for the New Decade

The Labor & Employment GroupMurtha Cullina LLP April 15, 2010

New Directions in Labor and Employment LawSignificant events in 2009 and 2010

In the Courts

Haddad v. Wal-Mart Stores, Inc.

• 455 Mass. 91 (2009)

• Gender discrimination

• Found sufficient evidence of discrimination, including conflicting and unsupported reasons for termination and different treatment of male pharmacists

• Upheld 19 years ($700K+) of front pay

• Clarified test for punitive damages

• Signaled possible reconsideration of mixed motive test

In the Courts (continued)

Warfield v. Beth Israel Deaconess Medical Center, Inc.

• 454 Mass. 390 (2009)

• Refused to compel arbitration of employment discrimination claim

• Held that limitations or waiver of rights under G.L. c. 151B must be stated in clear and unmistakable terms

• Suggested that additional protections beyond unambiguous language may be held necessary

In the Courts (continued)

Buttrick v. Intercity Alarms, LLC

• 2009 Mass. App. Div. 97 (2009)

• Jury found handbook created a binding contract and awarded plaintiff $41,888 in damages

• Handbook contained the traditional “no contract” language:

Not a contract

Company reserved the right to unilaterally modify the terms of the manual

Handbook was provided merely for guidance

In the Courts (continued)

What Went Wrong?

• Handbook contained a non-compete clause

Non-compete clause created statement of conditions under which employment could be continued

• Handbook contained progressive discipline policy

Company did not follow policy when it fired plaintiff and jury found a violation of the implied contract

In the MCAD

• 2008-2009• After Hearing:

Total cases decided: 31

Employment cases: 25

Full Commission Appeals: 9

Decisions Rejecting Appeals: 7

Hearing Officer Reversals: 0

Remands: 0

Complainant’s Decision: 18

Respondent’s Decision: 11

Average Time to Decision: 4 years, 3 months

In the MCAD (continued)

• Trends:

Emotional Distress Awards on the Rise• Increased markedly from 2007-2008

– Most awards were between $30-$75K

– Three awards of $100,000

– Median of emotional distress awards: $50K

Training Awards Increase Slightly• Three awards in 2008-2009

• Awards vary in requirements

In Congress

• COBRA subsidy

Established by American Recovery & Reinvestment Act (ARRA), effective Feb. 17, 2009, which also modified COBRA notice and eligibility requirements

Subject to income limitation, allows employee whose employment is involuntarily terminated (or covered family member) to pay 35% of premium, with employer paying 65% (reimbursed through tax credit)

Extended for involuntary terminations through Mar. 31, 2010 and might be further extended by Congress

Now available for up to 15 months

• Provisions also apply to Massachusetts Mini-COBRA Act covering employers with 2-19 employees

In Congress (continued)

Health Care Reform Act

• How will this directly affect MA employers?

Small employers (with fewer than 25 employees) will get tax credits (up to 35% in 2010-2013 and 50% after) for providing coverage to employees

Employers with fewer than 50 employees will be exempt from tax penalty for not offering insurance (effective 2014) (MA law penalizes employers with 11 or more full-time equivalent employees)

Employers will lose tax deduction for Medicare Part D subsidy (effective 2013)

Employers must provide reasonable break time and separate place for nursing mothers

In Congress (continued)

Health Care Reform Act (continued)

• How will this affect MA employees?

Children under age 26 may remain on parents’ health plans (MA law limits coverage to dependents for two years after loss of dependent status or until age 26, whichever is earlier) (effective 2010)

Wealthier employees will pay a higher Medicare payroll tax (effective 2013)

Tax penalty for most employees who lack coverage will be lower than under MA law, but more employees will qualify for subsidies (effective 2014)

Employees will be taxed on “Cadillac plans” (effective 2018)

In the MA Office of Consumer Affairs and Business Regulation

• Massachusetts Data Security Regulations are final and deadline for employer compliance was Mar. 2, 2010

Employers must have written information security plan (WISP) in place

Regulations require significant measures to protect personal information of MA residents, both in paper and electronic form

Elsewhere

• Genetic Information Nondiscrimination Act (GINA)

Title II prohibiting employers with 15 or more employees from discriminating on the basis of genetic information effective Nov. 21, 2009

U.S. Department of Labor issued regulations to enforce GINA on Oct. 7, 2009 (these affect wellness programs seeking information about family history)

EEOC has published new poster

Elsewhere (continued)

• Fair Labor Standards Act and MA Payment of Wages Act

Focus of federal and state regulators on misclassification of employees as independent contractors or as exempt

See Appendix A for more information.

Retaliation

A Growing Problem

Retaliation Cases Are On The Rise

• In 2007 the Equal Employment Opportunities Commission received 26,663 charges of retaliation.

• In 2008: 32,690

Where Do Retaliation Claims Come From?

• Anti-Discrimination Statutes

Title VII, ADA, ADEA

• Independent Whistleblower Protections

OSHA, FLSA, FMLA, ARRA

How Does An Employee Prove Retaliation?

1. That he/she engaged in protected activity

2. That she/he suffered an adverse employment action; and

3. The adverse employment action was caused by the protected activity.

Bad Discrimination Cases Can Lead to Good Retaliation Claims

• Employees who lose their discrimination or whistleblower claims often have excellent retaliation claims.

What Does “Engaging In” Protected Activity Mean?

1. Someone who participates in a protected activity.

2. Someone who opposes an unlawful employment practice defined by statute.

3. Someone who “blows the whistle.”

Participation In Protected Activities: Who Is This Person?

• Someone who has:

Made a charge

Testified

Assisted or

Participated

Participation In Protected Activities: Who Is This Person? (continued)

• In any manner in an:

Investigation

Proceeding

Hearing or

Litigation

Speaking Up Makes the Claim

• Employee does not have to prevail on the merits of their complaint regarding unlawful employment practice to establish participation in a protected activity.

Protected Activity: Opposition

• An employee is protected if:

She or he directly or indirectly communicates

A good faith belief that

Employer’s activity constitutes a form of employment discrimination.

Opposition?

• “Opposition” includes both formal and informal complaints.

• “Opposition” complaints can be intermingled with complaints about issues not related to discrimination.

What Does A Complaint Look Like?

• Complaint must either explicitly or implicitly communicate a belief that the conduct violates an employment discrimination statute.

• “Broad and ambiguous complaints of unfair treatment” are OK.

• Would a reasonable person interpret the complaint as opposition to employment discrimination?

What Else Does A Complaint Look Like?

• Critical letters to customers

• Protests concerning discrimination in society in general

• Supporting other employees who have filed protected complaints

• Encompasses passive conduct such as involuntary participation in an employer’s investigation of a claim (discrimination or other protected activity) made by another employee

What Isn’t A Complaint?

• Complaints that are equivocal and vague.

• General lists of grievances that do not mention discrimination.

Reasonable Good Faith Belief

• Opposition must be based on

Reasonable and good faith belief that.

The opposed practices are unlawful.

Adverse Action: What Is That?

• EASY

Termination

Demotion

loss of pay

particularly vicious and prolonged abuse by a supervisor

• NOT SO EASY

Any conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

No longer ask “did the action affect the “terms and conditions of employment” or was it an “ultimate employment decision”

Context Matters

denial of sick pay

denial of tuition reimbursement

denial of training opportunities

assigning employee to “unpleasant” work

delay in processing grievance

unchecked harassment by co- workers

investigating employee for performing actions that were part of her responsibilities

charging personal time for attending deposition

barring employee from accessing an office to which she normally had access

denying business trip when employee’s compensation was tied to revenue

change in schedule

failure to invite employee to lunch

Situations That May Not Be Materially Adverse

• Not recommending the employee for an award.

• Requiring the employee to take two hours of training while on leave without pay and not paying for his time.

• Intimidating the employee by starting and yelling at him.

• Giving an employee “minimal” change in responsibilities when those job duties were not “dirtier, more arduous, less prestigious or objectively inferior.”

Situations That May Not Be Materially Adverse

• Assigning employee undesirable duties which were within her job description, without loss of pay or title.

• Denying an employee’s request for temporary change of assignment which would not qualify the person for a promotion.

• Keeping an employee “entirely out of the departmental information loop.”

• Giving an employee a cold shoulder.

• Being deprived of mentoring given to other new employees.

Not Out Of the Woods Yet…

• Retaliation claims can extend to actions after the employment relationship has ended:

providing unjustified negative job reference

Refusing to provide a job reference

Causation

• A Three-Step Process

1) Employee must raise an inference of causation.

2) Employer must articulate a legitimate, non- discriminatory reason for the adverse action.

3) If legitimate reason is articulated, employee must show that they employer’s reason is a pretext for the true discriminatory motive and that the retaliation is a motivating factor in the adverse decision.

Temporal Proximity

• The closer the temporal proximity the more likely the court is to infer causation

“Very close”

6 months—not close enough

A Quick Look at Some of the Statutes and Their Quirks

Title VII

• No required finding of discrimination in order to find retaliation.

Americans With Disabilities Act (“ADA”)

• Plaintiff does not have to be disabled to bring a successful retaliation claim under the ADA.

Fair Labor Standards Act (“FLSA”)

• Federal courts are divided as to what constitutes a protected activity.

• Majority of the circuits protect employee’s internal complaints and do not require a formal complaint.

Family Medical Leave Act (“FMLA”)

• Retaliation claims under the FMLA address adverse actions taken in response to an employee’s use of or request for medical leave.

• Actions motivated by the underlying medical condition itself are protected under the ADA.

Whistleblower Statutes—Who Are They?

OSHA

• OSHA is a limited whistle-blower statute

Employee can file a claim at the Department of Labor but the DOL has the discretion as to whether or not to file a complaint in court.

ARRA (The American Recovery and Reinvestment Act of 2009)

• Extensive whistle-blower protections to ensure that the employees of private contractors and state and local governments that receive stimulus funds are free to report fraud, waste and other violations of the ARAA.

Important Steps Employers Can Take to Minimize the Risk of Retaliation

Education

• Company policies should

Encourage all employees to help prevent and detect unlawful activity.

Prohibit discrimination and retaliation for. reporting what employees reasonably believe to be wrongdoing.

Reporting Issues

• Employees should be provided with multiple avenues of reporting any alleged wrongdoing, including one that is outside of the employee’s direct line of supervision.

More Education

• Employers should educate managers and supervisors on compliance with applicable laws, rules and regulations, as well as training on awareness and prevention of retaliation.

Investigations

• Employers should make certain that complaints and claims made by employees are promptly, thoroughly, and fairly investigated by someone who is knowledgeable about the subject matter of the complaint.

Keep Records, Take Notes

• Remember: Someone may be looking

Consistency

• Avoid claims of constructive discharge resulting from discipline.

• Ensure that discipline:

Is appropriate

Similar to that taken against others in similar situations

Confidentiality

• Employers should restrict communication about the claims to those who need to know.

• Communication among those in the need to know group should be restricted to formal communication.

Avoid casual conversations and email

See Appendix B for information from attorney Barry Waters on “How to Conduct a Workplace Investigation”

Wage & Hour Law

Do You Have To Pay Them At All?

1. Volunteers

2. Student Interns

Do You Have To Pay Them As Employees?

3. Independent Contractors

Do You Have To Keep Track Of Hours And Pay Overtime?

4. Exempt Employees

Do You Have To Pay Minimum Wage?

5. Tip Credit

What Is “Working Time”?

6. Remote Access and The Beginning of the Work Day

7. Comp Time

Other Forms Of Compensation

8. Commissions

9. Bonuses

Can I Do Anything About All These Whiners?

10. Retaliation Claims

See Appendix C for more information.

Leaves of Absence

Managing Employees Who Are Unable to Work

What We’ll Talk About

• Who needs a leave of absence• What policies, plans and agreements might

apply• What laws might apply• How to analyze and respond to a request• How to administer the leave• Common scenarios

Who Needs A Leave of Absence

• Injured employee—on the job or off the job• Ill employee• Disabled employee• Pregnant, adopting or foster parent employee• Employee in the military• Employee with a family member creating

need for leave

What Policies, Plans and Agreements Might Apply?

• Personnel policies

Sick leave/personal leave/vacation leave/paid time off

In employee manual or elsewhere

• Plans

Health insurance

Short term disability

Long term disability

• Agreements

Individual employment agreement

Collective bargaining agreement

What Laws Might Apply

Primarily (our focus today):

• Family and Medical Leave Act (FMLA)

New FMLA regulations effective Jan. 16, 2009

National Defense Authorization Act (NDAA) for 2010 further expanded FMLA military family leave

• Americans with Disabilities Act (ADA)

ADA Amendments Act (ADAAA) effective Jan. 1, 2009

New ADA regulations proposed by EEOC on Sept. 23, 2009

• Massachusetts Fair Employment Practices Act (Chapter 151B)

• Massachusetts Workers Compensation Act (Workers’ Comp)

• Massachusetts Maternity Leave Act (MMLA)

What Laws Might Apply (continued)

Also (but not our focus today):

• Uniformed Services Employment and Reemployment Rights Act (USERRA)

• Massachusetts Small Necessities Leave Act (SNLA)

How To Analyze and Respond To A Request

• First consider which policy, plan, or agreement applies to the request

• Then ask which laws apply to the request

Is the employer covered?

Is the employee eligible?

Does the employee have a qualifying condition or need?

Is The Employer Covered?

• FMLA

Employer has 50 or more employees (for each working day during each of 20 or more calendar work weeks in current or preceding calendar year)

Any public employer or any elementary or secondary school

• ADA

Employer has 15 or more employees

• Chapter 151B

Employer has 6 or more employees (but smaller employers covered by Massachusetts Equal Rights Act)

Is The Employer Covered? (continued)

• Workers’ Comp

Almost all employers (very few exceptions)

• MMLA

Employer has 6 or more employees

Is The Employee Eligible?

• FMLA

Employed at least 12 months

Worked at least 1,250 hours in the prior 12 months

Working at site with at least 50 employees within 75 miles

• ADA

Any employee

• Chapter 151B

Any employee

Is The Employee Eligible? (continued)

• Workers’ Comp

Any employee (very few exceptions)

• MMLA

Female employee who has completed the initial probationary period (if any) or who has worked for the employer full-time for at least 3 consecutive months

MCAD has said that although a male employee is not entitled to MMLA leave, denying leave could be gender discrimination

Does The Employee Have A Qualifying Condition or Need?

• FMLA

Birth or adoption of child or placement of child for foster care

Serious health condition of employee

Serious health condition of immediate family member (spouse, parent, or child, who can be over 18 if incapable of self-care because of mental or physical disability)

Family member’s military service

• Military caregiver leave for employee who is spouse, parent, child or next of kin of military service member recovering from serious illness or injury incurred in line of active duty/unfit to serve

• Qualifying exigency leave arising out of immediate family member’s active military duty

Definition of Serious Health Condition Under FMLA

• Illness, injury, impairment, or physical or mental condition that involves

Inpatient care in a hospital, hospice or residential medical care facility; or

Continuing treatment by a health care provider, including

• A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent related treatment or incapacity that also includes an in-person visit for treatment either two or more times (the first within 7 days and both within 30 days of first day of incapacity) or once (within 7 days of first day of incapacity) with a continuing regimen of treatment (such as prescription medicine, physical therapy)

• Any period of incapacity due to pregnancy or prenatal care

• Any period of incapacity or treatment due to a chronic serious health condition (that requires periodic visits to a health care provider for treatment, continues over an extended period, and may be episodic, such as asthma, diabetes, epilepsy)

• A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (such as Alzheimer’s, severe stroke, terminal stages of illness)

• Any period of absence to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than 3 days if not treated (such as chemotherapy, dialysis)

• Condition must render employee unable to perform (essential) functions of his or her position

Definition of Qualifying Exigencies Under FMLA

• Short notice deployment (up to 7 calendar days)

• Military events and related activities

• Childcare and school activities

• Financial and legal arrangements

• Counseling

• Rest and recuperation (absence for up to 5 days)

• Post-deployment activities (for up to 90 days after service)

• Additional activities, as mutually agreed by employee and employer

Does The Employee Have A Qualifying Condition or Need? (continued)

• ADA

Employee must meet the definition of disabled

• A physical or mental impairment that substantially limits one or more major life activities

• A record of such impairment

• Being regarded as having such an impairment

ADAAA broadened interpretation of definition of disability

• Impairment may be episodic or in remission

• Corrective measures are irrelevant (except ordinary eyeglasses or contact lenses)

• Major life activities are listed and include major bodily functions

• “Regarded as” disability does not require showing that perceived impairment limits performance of a major life activity, but does require showing that perceived impairment is more than minor or transitory (actual or expected duration of less than 6 months)

Does The Employee Have A Qualifying Condition or Need? (continued)

• ADA (continued)

Employee must also be “qualified”• Able to perform the essential functions of the position he

holds or desires with or without a reasonable accommodation

• Reasonable accommodation includes modification to work environment or facilities, acquisition or modification of equipment, restructuring marginal functions, altering when or how an essential function is performed, part-time or modified work schedule, or reassignment to vacant position

• No duty to accommodate persons “regarded as” disabled

Does The Employee Have A Qualifying Condition or Need? (continued)

• Chapter 151B

Employee must meet the definition of handicapped

• Chapter 151B tracks definition of disabled in ADA

• ADAAA brought definition closer to definition of handicap under MA case law, which had already disregarded corrective measures (including hearing aids)

Employee must be “qualified”

• Same as with ADA, but

• Under Chapter 151B an employer is not required to transfer employee to a new position as a reasonable accommodation (although MCAD may disagree if employer offers transfers to other employees)

Does The Employee Have A Qualifying Condition or Need? (continued)

• Workers’ Comp

Employee must have a work-related injury or illness

• MMLA

Employee must be giving birth, adopting a child under 18, or adopting a child under 23 with physical or mental disabilities

How To Administer A Leave

Primarily (our focus today):

• How much leave is required?

• Must the employer maintain health insurance benefits?

• What right does the employee have to reinstatement?

• Must the employer permit a modified schedule or light duty?

How To Administer A Leave (continued)

Also consider:

• What type of notice provisions apply?

• What type of certification can employer require?

• Can the employer require use of sick or other paid leave?

How Much Leave Is Required?

• FMLA

Generally, up to 12 weeks of unpaid leave in any 12 month period (includes qualifying exigency leave)

Up to 26 weeks of unpaid military caregiver leave in a single 12 month period (concurrent with other FMLA leave)

Various ways to measure 12 month period (calendar year, any fixed 12 month period, 12 month period from date employee’s first FMLA leave begins, rolling 12 month period measured backward from date employee uses any FMLA leave), but calculated from first day of leave for military caregiver leave

How Much Leave Is Required? (continued)

• ADA

Leave may be reasonable accommodation, if there is no other effective accommodation and leave will not cause undue hardship to employer

Employee may be entitled to more than 12 weeks unpaid leave

• Chapter 151B

Same as ADA

How Much Leave Is Required? (continued)

• Workers’ Comp

Length of leave/benefits depends on extent of injury or illness

Insurer pays partial compensation for lost wages after first 5 calendar days of total or partial disability

Many claims are settled with lump sum payment, which creates presumption that employee is incapable of returning to work for a period of time (1 week per $1,500)—c. 152, §

48

How Much Leave Is Required? (continued)

• MMLA

Up to 8 weeks, unpaid or paid at employer’s discretion

MCAD takes the position that leave must be paid if employer generally pays during extended sick leave for non-pregnancy related conditions

MCAD takes the position that leave is 8 weeks per birth, so that woman who has twins gives birth twice and is entitled to 16 weeks leave

Must An Employer Maintain Health Insurance Benefits?

• FMLA

Yes, on same conditions• ADA

No, unless policy allows for maintenance during leave • Chapter 151B

No, unless policy allows for maintenance during leave• Workers’ Comp

No, but workers’ comp insurer pays for reasonable and necessary medical treatment for work-related injury or illness

• MMLA

Yes, but need not pay cost unless do for all employees on leave

What Right Does The Employee Have To Reinstatement?

• FMLA

Right to reinstatement to same or equivalent position, unless• Unable to perform essential functions of the position

• Has not provided certification from health care provider that is able to do so (if employer has uniformly applied policy or practice to require certification)

• Would otherwise have not been employed (due to layoff, job elimination, completion of project for which hired)

• Was a “key employee” (hard to establish)

What Right Does The Employee Have To Reinstatement? (continued)

• ADA

Employee should be reinstated if leave is reasonable accommodation and no undue hardship to employer

• Chapter 151B

Same as ADA

What Right Does The Employee Have To Reinstatement? (continued)

• Workers’ Comp

No right to reinstatement, but

Employee has preference in rehiring if suitable job available (but not in conflict with collective bargaining agreement)—c. 152, §

75A

Employee injured at work is considered handicapped and if “qualified” is entitled to a reasonable accommodation—c. 152, §

75B

• MMLA

Right to reinstatement to same or similar position unless

• Others in comparable position laid off (in which case employee gets preferential consideration for another position)

Must The Employer Permit A Modified Schedule or Light Duty?

• FMLA

Intermittent leave available

Reduced work schedule available (when foreseeable may transfer employee to alternate position with equivalent pay and benefits)

For birth/adoption/placement of child, only if employer agrees

No requirement to provide light duty work, and if employee accepts this it does not count as FMLA leave

• ADA

Modified schedule may be required as reasonable accommodation

No requirement to provide light duty work if employee cannot perform essential functions of his position, although there is a duty to provide a reasonable accommodation

• Chapter 151B

As with ADA

Must The Employer Permit A Modified Schedule or Light Duty? (continued)

• Workers’ Comp

Insurer may require light duty and modified schedule

• MMLA

Not required under statute, but

Reasonable accommodation is required if employee’s condition during pregnancy rises to the level of a disability

Such accommodation could be required if provided to other temporarily incapacitated employees

Common Scenarios

• Employee is injured

FMLA, disability, and Workers’ Comp laws may apply, along with sick and other leave policies and STD and LTD plans

• Employee is pregnant and has complications before giving birth

FMLA, disability and MMLA laws may apply, along with sick and other leave policies and STD plan

• Employer is small

Might be covered by disability laws and MMLA but not FMLA

Common Scenarios (continued)

• Employee has not worked for employer for long

Might be eligible under disability laws but not FMLA or even MMLA

• Employer is experiencing hardship in holding employee’s job open

No undue hardship exception to FMLA or MMLA, although right to reinstatement limited in circumstances already discussed

• Employee has requested more than 12 weeks leave in 12 month period

Might be entitled to if MMLA leave has not run concurrently with FMLA leave, if 26 weeks of military caregiver leave is available under FMLA, or if extending FMLA leave beyond 12 weeks would be a reasonable accommodation to a disabled employee

See Appendix D for more information.

TheThe Obama Board

Michael C. Harrington, Esq.

Employee Free Choice Act

An Overview of Existing Certification Process

1. Collection of authorization cards by the union

2. Demand for recognition

3. Filing of an RC Petition

4. National Labor Relations Board (NLRB) processing of the petition

5. The Campaign

6. The Election

7. Post-Election proceedings

Collection of Authorization Cards

• Collection of authorization cards is central to a union’s organizational effort

Cards may be used to demand recognition (requires cards from over 50% of employees in unit)

Cards are used to make the required “showing of interest” if a petition is filed (requires only 30%)

Demand for Recognition

• If the union obtains cards from more than 50% of the employees in the unit it may demand recognition

This may be done by mail offering to prove majority status through a card check

May be done in person with cards being presented to show majority status

• The employer has two options:

Agree to recognize the union

Refuse to recognize the union

• An employer has the right to refuse to recognize the union. Refusal will usually result in a petition being filed by the union.

Demand for Recognition: Employer Response

Filing of an RC Petition

• An RC Petition is filed with the NLRB. It contains the following information:

Name of labor organization

States the number of employees in unit

Alleges support by more than 30%

Describes the unit

States dates of demand for and denial of recognition

NLRB Process: Initial Notice

• The filing of the Petition commences the formal NLRB certification process

NLRB sends (faxes) petition to employer;

Sends a commerce questionnaire; and

Issues a notice of a hearing.

NLRB Process: Issues

• There are four issues to address:1. Does the NLRB have jurisdiction?

2. Is there the requisite showing of interest (this is an administrative determination)?

3. Is the petitioner a bona fide labor organization?

4. Is the unit an “appropriate unit?”

NLRB Process: Resolution of Issues

• Issues may be resolved in one of two ways:1. By agreement between the employer and

union; or

2. By the Regional Director after a hearing.

• If the employer contests NLRB jurisdiction, whether the union is a bona fide labor organization, or the appropriateness of the unit the employer is entitled to a hearing.

NLRB Process: The Hearing

• The employer may contest the appropriateness of the unit:

Employer may argue:

1. Other groups should be added.

2. Groups should be deleted.

3. Unit includes supervisors.

• After the hearing and filing of briefs the Regional Director will issue a decision

Dismissing the petition (not likely)

Directing an election

• If an election is directed, an attempt is made to have the election within 45 days of the filing of the petition.

NLRB Process: Regional Director Decision

The Campaign

• When directing the election the Regional Director will require the employer to provide the union with the names and addresses of the employees in the unit.

• Both the employer and the union may conduct a campaign to win employees over to their point of view – union or no union.

The Election

• Election is by secret ballot.

• Conducted by a NLRB agent.

• At the Employer’s premises (except in unusual situations).

• The NLRB secret ballot election allows an employee to make his/her choice privately in a government run election where no one will know how the employee voted.

Post Election Proceedings

• Resolution of any challenges to ballots

• Objection to the Election and/or objection to conduct affecting the results of the election.

Unionization• Union membership = 7.4% in 2006

• 58% eligible workers would join a union if they could.

• In 2006, 94.2% of all initial elections were conducted within 56 days of filing of petition.

Median time of election : 39 days

• Unions are winning over 50% of secret ballot elections.

Major Provisions

1. Eliminate secret ballot elections

2. Impose interest arbitration

3. Increase penalties

1. Eliminate Secret Ballot Elections

Certification of Union based upon Cards

Concerns About “Card Check”

• Solicitation in public.

• No secret ballot.

• Historically, unions lose 10% of card signers when secret ballot is conducted.

2. First Contract . . . Binding Arbitration.

Must begin bargaining within 10 days of receiving written request.

After 90 days, may request mediation.

After 30 days, may be submitted to binding arbitration.

Arbitration decision binding for up to 2 years.

Concerns About Binding Arbitration

• Standards “in accordance with regulations as may be prescribed.”

• NLRB must seek injunction against an employer whenever there is reason to believe that employees have been discriminated against during organizing campaign or bargaining first contract

Increase Remedies / Penalties

Increase Remedies / Penalties (continued)

• 3x backpay for discrimination during organizing campaign or bargaining first contract.

• Penalties up to $20,000/violation for willful/repeated violation of employees’ rights during organizing campaign/bargaining first contract.

What To Do Now

• Review Employee Handbook

Non-Solicitation

E-Mail Policies

• Be Clear As to Who Are Supervisors

• Competitive in Market

• Morale

• Currently, 4 of 5 members:• Wilma B. Liebman

• Peter Schaumber

• Craig Becker

• Mark Gaston Pearce

* Brian Hayes

-Nomination stalled.

National Labor Relation Board

Possible Changes in Board Law¹Top Prospects for Reversal

Dana /Metaldyne

351 NLRB 434 (2007)

ISSUE: Application of the Board’s "recognition-bar" doctrine, under which, according to this doctrine, an employer’s voluntary recognition of a union, in good faith and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a rival union for a “reasonable period of time.” A collective bargaining agreement executed during this insulated period generally thereafter bars Board elections for up to 3 years of the new contract’s term.

HOLDING: The Majority modified the Board’s recognition-bar doctrine and held that no recognition bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed. The requisite showing of interest in support of a petition may include employee signatures obtained before as well as after the recognition. These principles govern regardless of whether a card-check and/or neutrality agreement preceded the union’s recognition.

1 U.S. Chamber of Commerce (Sept. 2009)

Oakwood Healthcare Center, Inc.

348 NLRB 686 (2006)

ISSUE: In light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care,44 the Board reexamined its position on determining “supervisory status” under the National Labor Relations Act's section 2(11) statutory exclusion for supervisors.

Section 2(11) defines “supervisor” as:

any individual having the authority, in the interest of the employer, to hire, transfer,

suspend, lay off, recall, promote, discharge, assign, reward, or discipline other

employees, or responsibly to direct them, or to adjust their grievances, or effectively to

recommend such action, if in connection with the foregoing the exercise of such authority

is not of a merely routine or clerical nature, but requires the use of independent judgment.

Pursuant to this definition, individuals are statutory supervisors if: (1) they hold the authority to engage in any 1 of the 12 supervisory functions (e.g., “assign” and “responsibly to direct”) listed in Section 2(11); (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;” and (3) their authority is held “in the interest of the employer.”

HOLDING: The Majority found that the Employer adduced evidence sufficient to establish that certain of its permanent charge nurses are supervisors based on their delegated authority to

Oil Capitol Sheet Metal, Inc.

349 NLRB 1348 (2007)

ISSUE: Whether the Board's rebuttable presumption that the back pay period should continue indefinitely from the date of the discrimination until a valid offer of reinstatement has been made should apply where the discriminatee is a union organizer or “salt.”

HOLDING: The Majority held that the back pay presumption does not apply where the discriminatee is a salt and that the General Counsel cannot rely on this presumption to meet his burden of proving the reasonableness of a back pay period claimed for a salt/discriminateee.

Palms Hotel & Casino

344 NLRB 351(2005)

ISSUE: Whether the employer’s work rule contained in its employee policy manual prohibiting employees from engaging in "conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with" other employees or patrons, violates Section 8(a)(1) ofthe Act?

HOLDING: While finding other employer violations of Section 7 rights, the Majority held that an employer's policy manual that promulgated and maintained a rule prohibiting employees from engaging in “conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees or patrons, did not violate Section 8(a)(1) of the Act. The Board held that it must give the challenged rule a"reasonable reading" and not read the rule in isolation or simply presume improper interference with employee rights. Thus, since the challenged rule in this case was not promulgated in response to union organizing and does not specifically address Section 7 activities, it was not a violation of Section 8(a)(1).

Shaw's Supermarkets

350 NLRB 585 (2007)

ISSUE: The precise issue presented here, which seems to be an issue of first impression, is whether an employer may rely on evidence of actual loss of majority support to withdraw recognition from a union after the third year of a contract of longer duration. Thus the issue pits conflicting labor policies and competing Section 7 rights: employee free choice versus contract stability.

HOLDING: The employer and the union had a 5-year contract covering about 1600 full-time and regular part-time employees at 12 of the employer’s stores. Following the employees filing a decertification petition, and based on over 900 signatures on a petition from the employees stating that they no longer wanted to be represented by the union, the employer withdrew recognition.

The Majority held that the employer lawfully withdrew recognition from the union based on evidence that the union had actually lost the support of a majority of the bargaining unit employees. Before it withdrew recognition from the union, the employer was in possession of verified information indicating actual loss of majority support sufficient to meet the Levitz standard.

Also, the Board held, that while it is true that the employer could have awaited the outcome of the decertification election, the ready availability of blocking charges—which, indeed, were filed here—and the delay attendant upon their resolution rendered this course of action problematic where a union has actually lost majority support. “Continuing to recognize and deal with such a union is as deleterious to employee rights as failing to recognize a union that enjoys majority support.”

Toering Electric Company

351 NLRB 225 (2007)

ISSUE: The legal standard and burden of proving an unlawful Section 8(a)(3) refusal to hire or consider for hiring a “salt” applicant for employment.

HOLDING: First, the Majority defined an applicant entitled to statutory protection against hiring discrimination as someone genuinely interested in seeking to establish an employment relationship with the employer. Second, the Majority imposed on the General Counsel the burden of proving that an alleged discriminatee meets this definition.

The Register Guard

351 NLRB 1110 (2007)

ISSUE: Employees’ use of their employer’s e-mail system for Section 7 purposes. First, whether the Employer violated Section 8(a)(1) by maintaining a policy prohibiting the use of e-mail for all non-job- related solicitations. Second, whether the Employer violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails, and Section 8(a)(3) and (1) by disciplining an employee for sending union-related emails. Finally, whether the Employer violated Section 8(a)(5) and (1) by insisting on an allegedly illegal bargaining proposal that would prohibit the use of e-mail for union business.

HOLDING: The Employer's employees had no statutory right to use the Employer's e-mail system for Section 7 purposes, and therefore the Employer's policy prohibiting employee use of the system for non - job-related solicitations did not violate Section 8(a)(1).

With respect to the Employer's alleged discriminatory enforcement of the e-mail policy, the Majority modified the Board’s approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines, in other words, unlawful discrimination consists of disparate treatment of “communications of a similar character based on their union or other Section-7 protected status.”63

Finally, the Employer did not insist on its bargaining proposal prohibiting the use of e-mail for “union business.” Therefore, the Majority dismissed the allegation that the Respondent insisted on an illegal subject in violation of Section 8(a)(5) and (1).

Harborside Healthcare, Inc.

343 NLRB 906 (2004)

ISSUE: Under what circumstances the pro-union activity of a supervisor will constitute objectionable conduct so as to warrant a new election.

HOLDING: On remand from the Sixth Circuit, the Board restated its legal standard for determining when supervisory pro-union activity is objectionable conduct in that it interferes with employees' freedom of choice so as to materially affect the election outcome and held that supervisory solicitations of union authorization card are inherently coercive absent mitigating circumstances.

IBM Corp.

341 NLRB 1288 (2004)

ISSUE: Whether employees who are not represented by a union have a protected statutory right to have a coworker present during investigatory interviews.

HOLDING: The Majority decision overruled Epilepsy Foundation and returned to earlier Board precedent holding that the so-called Weingarten right does not extend to a workplace where, as here, the employees are not represented by a union.

Oakwood Care Center

343 NLRB 659 (2004)

ISSUE: A petitioned for unit included both employees who are solely employed by employer, and employees who are jointly employed by employer and a personnel staffing agency.

HOLDING: It overruled the Board’s decision in Sturgis and held that multiemployer units may be appropriate only with the consent of the parties.

Brown University

342 NLRB 483 (2004)

ISSUE: Whether student graduate school teaching assistants for whom supervised teaching or research is an integral part of their academic development must be treated as “employees” for purposes of unionization and collective bargaining protections under section 2(3) of the NLRA.

HOLDING: Tthe Board reversed the its previous decision in New York University,91 and held that graduate student assistants are primarily students and not statutory employees.

Brevard Achievement Center

342 NLRB 982 (2004)

ISSUE: Whether disabled janitorial employees of a private sector rehabilitation center who perform the same services for the center's clients as non-disabled employees but whose work is primarily rehabilitative in nature are protected as statutory “employees” under the National Labor Relations Act.

HOLDING: The Board majority held that the individuals in question are not statutory employees under the Act.

BE & K Construction Co.

351 NLRB 451 (2007)

ISSUE: Whether a party that files a reasonably based but ultimately unsuccessful lawsuit that is filed for a retaliatory reasons constitutes a violation of the NLRA.

HOLDING: The majority determined that completed suits that are reasonably based but ultimately unsuccessful do not violate the Act.

Delta Brands, Inc.

344 NLRB 252 (2005)

ISSUE: Whether an unlawful rule in the Employee Policy Manual disseminated shortly before a union representation election that restricted workplace solicitation was sufficient to set aside the election results.

HOLDING: Consistent with its decision in Safeway, Inc., 100 the mere maintenance of an arguably overbroad rule will not be the basis for overturning an election where an incumbent union is in a position to advise employees of their rights.

• The majority found that the union failed to meet its burden of proving that (1) the policy manual that contained the unlawful rule was actually given to multiple employees during the critical period of union organizing; (2) the employer actually enforced the rule or called the attention of employees to it; and (3) the employees were, in fact, influenced in voting or deterred by the rule from engaging in Section 7 activity.

Crown Bolt

343 NLRB 776 (2004)

ISSUE: Standards for determining whether an unlawful threat to close a plant to one employee is disseminated to the entire workforce.

HOLDING: The majority overturned Springs Industries and earlier Board precedent which had created a rebuttable presumption of dissemination throughout the workforce of an employer's unlawful threat to close the plant if the union prevailed in a representation election, and that to rebut the presumption the employer was required to prove non-dissemination among employees.

LeMoyne-Owen College

345 NLRB 1123 (2005)

ISSUE: Whether faculty members are covered employees or managerial employees excluded from coverage under the NLRA and by the U.S. Supreme Court's decision in Yeshiva University.103

HOLDING: The majority held that the faculty at LeMoyne-Owen College are managerial employees excluded from coverage under the NLRA.

Jones Plastic and Engineering Co.

351 NLRB 61 (2007)

ISSUE: Whether employees hired on an at-will basis may be found to be permanent replacements for striking employees.

HOLDING: The majority held that the employer lawfully declined to reinstate former economic strikers because it had hired permanent replacements for them.

In this case, the replacements were required to sign a statement stating that they were permanent replacements, but that they could be “terminated ... at any time, with or without cause.” The statement then stated, “I further understand that my employment may be terminated as a result of a strike settlement agreement ... or by order [of] the National Labor Relations Board.”

Alladin Gaming, LLC

345 NLRB 585 (2005)

ISSUE: Whether the employer engaged in unlawful surveillance when supervisors observed employees talking about union matters while in the employee dining room and interrupted those employees to provide the employer’s perspective.

HOLDING: The managers’ interruption of employees engaged in Section 7 rights, where employees on company property were discussing the union and seeking signatures on union authorization cards and managers briefly interjected company's views on unionization, was not a violation of Section 8(a)(1) as unlawful surveillance. The majority held that surveillance is only unlawful where it is out of the ordinary thereby making it coercive. Indicia of coerciveness include the length of the surveillance, the distance from employees while observing them, and whether there was other coercive behavior during the observation.

Elmhurst Care Center

345 NLRB 1176 (2005)

ISSUE: Whether voluntary recognition of a Union is premature, and therefore unlawful in violation of Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the Act, where the Employer has not: (1) employed a substantial and representative complement of its projected workforce, and was not (2) engaged in its normal business operations.

HOLDING: The majority held that the Respondent Employer extended, and the Respondent Union Local 300S accepted, recognition prematurely. Recognition was extended and accepted before the employer was engaged in normal business operations.

An employer may grant a union voluntary recognition if the union presents evidence of majority support in an appropriate unit. However, a grant of recognition when the union does not have majority support is unlawful because it violates the principle of majority rule, embedded in Section 9 of the Act.

Supervalu, Inc.

351 NLRB 948 (2007)

ISSUE: Whether an “additional stores” clause, in which the Employer recognizes the Union as the sole and exclusive bargaining representative for all employees in the retail stores presently operated by the Employer or of employees in stores which may be operated by the Employer in the future, concerns a mandatory or merely a permissive subject of bargaining.

HOLDING: The Board held that the “additional stores” clause concerned a permissive subject of bargaining, and thus, the Respondent Employer's actions did not violate the Act.

Scope of Protected Activity

Holling Press, Inc.

343 NLRB 301(2004)

ISSUE: Whether an employee was engaged in activity protected by the Act when she solicited a coworker to be a witness in support of her sexual harassment claim filed with a State agency.

HOLDING: For an employee’s actions to be protected Section 7 activity, the General Counsel must show that an employee’s actions are (1) concerted and (2) for mutual aid or protection. The Board found that although the employee’s attempts to solicit another coworker to accompany her to the State Agency in support of her sexual harassment claim was indeed concerted it was not engaged in for mutual aid or protection. The Board made that determination finding that the employee pursued the sexual harassment claim for purely personal benefit and not for the benefit of other employees.

Waters of Orchard Park

341 NLRB 642 (2004)

ISSUE: Whether two nursing home employees were engaged in protected, concerted activity when they called the New York State Department of Health Patient Care Hotline to report excessive heat in the Respondent’s nursing home.

HOLDING: The Majority found that although the employees’ action in making the call was concerted (as there were two employees involved in the call), it was not protected as it did not relate to a term or condition of their employment. The Majority found that because the employees made the call to the hotline to express their concern about the effect the heat was having on patients, as opposed to employees, the activity was not for mutual aid or protection of employees and therefore not protected. As stated another way in a concurring opinion by Member Meisburg, the NLRA “is not a general whistleblower’s statute. Absent an intent to improve wages, hours, or working conditions, concerted activity of the type in this case cannot be deemed ‘mutual aid and protection.’”

Five Star Transportation, Inc.

349 NLRB 42 (2007)

ISSUE: Whether a successor contractor providing school bus transportation lawfully refused to hire certain drivers of the predecessor contractor who sent letters in an effort to persuade the School District to award the contract to the predecessor.

HOLDING: The Majority held that the successor contractor did not violate the Act by refusing to hire certain drivers. Although the Majority acknowledged that all of the drivers engaged in concerted activity by preparing and submitting individual letters to the school committee, the Majority concluded the letters were not sufficiently related to terms and conditions of employment to constitute protected activity.

AmcastAutomotive of Indiana, Inc.

348 NLRB 836 (2006)

ISSUE: Whether the employer violated 8(a)(3) of the Act when it terminated an employee for using a Company computer to search the internet to investigate the truth of rumors that the Company was selling a portion of its business.

HOLDING: The Majority held that the employer did not violate the Act when it discharged the employee. The Majority found that the internet activity was too attenuated from employees’ working conditions to be protected, noting that the “mere possibility of a future sale was too speculative and remote...”

Gissel / Special Remedies

Abramson

345 NLRB 171(2005)

ISSUE: Whether the employer's conduct before and after the election warranted a Gissel bargaining order (ordering bargaining even though the Union has not won in a NLRB- conducted election because the employer’s conduct has prevented the possibility of ensuring a fair election).

HOLDING: The Majority upheld ALJ findings with regard to several unfair labor practice violations that the employer committed during the course of the Union organizing campaign, including threats of plant closure, as well as loss of jobs and benefits should employees choose union representation.

The Majority found that because the threats were disseminated to a minority of the employees (at most 35 out of 80 employees) a Gissel bargaining order was unwarranted and the Board’s traditional remedies, including a rerun election, would suffice.

Hialeah Hospital

343 NLRB 391(2004)

ISSUE: Whether the union’s objections to election regarding various unfair labor practices that the employer committed after learning that the union filed a petition for election with the NLRB warrant a Gissel bargaining order.

HOLDING: The Majority upheld the ALJ finding of a violation with regard to several of the Union’s objections, including the following: (a) threats made at a mandatory meeting of employees of unspecified reprisals for engaging in union activity; (b) promises of job promotions to employees who stop supporting the union; (c) stricter enforcement of workplace rules; (d) removing employee benefits (i.e. removal of shower head and ping pong table from employee lounge); (e) various threats; (f) surveillance; and, (g) a retaliatory discharge. The Majority reversed the ALJ, however, with respect to his recommended remedy of a Gissel bargaining order. The Majority determined that the Board’s traditional remedies, including a rerun election and reinstatement of the unlawfully discharged employee were sufficient and that the employer’s violations were not as serious or as pervasive as they would need to impose a bargaining order, which should be reserved for those cases where the possibility of erasing the effects of unfair labor practices is slight.

The Register Guard

344 NLRB 1142 (2005)

ISSUE: Whether a Gissel bargaining order is warranted where an employer engages in violative activity including (a) granting wage increases, (b) soliciting employees’ grievances and promising to remedy them, (c) and soliciting employees to withdraw the Union authorizations.

HOLDING: The Majority held that the three 8(a)(1) violations did not fall into either category of violation that the Board has found to warrant a Gissel bargaining order (i.e. either (1) exceptional cases, which are marked by ULPs that are so outrageous and pervasive that a fair election could not be run; or, (2) less extraordinary cases, which are marked by less pervasive violations but which still have a tendency to impede the election process).

Intermet Stevensville

350 NLRB 1349 (2007)

ISSUE: Whether the employer’s violations so tainted the workplace atmosphere that the possibility of a fair rerun election was slight and a bargaining order was warranted.

HOLDING: The Majority held that imposition of bargaining order was not warranted where the “hallmark” violations—threatening plant closure and loss of employment if the union won the election—did not impact a significant portion of the bargaining unit and therefore did not warrant a bargaining order. The Majority further found that there was no evidence that the two employees who were affected by the hallmark violations disseminated news of these unfair labor practices to other employees.

Washington Fruit & Produce Co.

343 NLRB 1215 (2004)

ISSUE: Whether the election results should be set aside on the basis of the union’s objection to the election regarding inaccurate address information on the Excelsior list.

Woods Quality Cabinetry Co.

340 NLRB 1355 (2003)

ISSUE: Whether an election should be set aside and new election directed where the sample ballot and notice of election erroneously indicated that the union was affiliated with the AFL-CIO.

HOLDING: The Majority found that the erroneous designations on the notices and ballots would reasonably tend to interfere with the election process because unit employees would incorrectly assume that they were joining the AFL-CIO. The Board found that this mistaken belief was material in several respects, including (1) calling into question the employer’s credibility where it had indicated to employees that the union was not affiliated with the AFL-CIO; and, (2) giving employees a false impression that the union would receive the assistance of a much larger union. Consequently, the Majority directed a new election with corrected notices and ballots

First Legal Support Services, LLC

342 NLRB 350 (2004)

ISSUE: Whether the employer’s numerous 8(a)(1) and (3) violations committed during a union organizing campaign warranted a bargaining order and other special remedies.

HOLDING: The Majority affirmed the ALJ’s rulings that the employer did in fact commit numerous unfair labor practices during the union organizing campaign.

The Majority upheld the ALJ’s recommendation for standard remedies and rejected the General Counsel’s and Union’s exceptions which asserted that the appropriate remedy should include, among other things, a Gissel bargaining order.

The Board determined that a bargaining order was not warranted because the GC failed to establish that the union enjoyed majority support. The Board also rejected the GC request for other special remedies because the GC failed to carry its burden that traditional remedies would not sufficiently remedy the unfair labor practices.

Partial Lockout

Bunting Bearings Corp.

343 NLRB 479 (2004)

ISSUE: Whether the Employer violated Section 8(a)(3) of the Act by implementing a partial lockout that was limited to nonprobationary employees following an impasse in negotiations.

HOLDING: The Majority held that the lockout was lawful following a legal impasse in negotiations. The Majority concluded that the Employer lawfully exerted economic pressure on the union following the lawful impasse by limiting the lockout to nonprobationary employees whom the Employer believed to be its only employees covered by the terms of the CBA.

Midwest Generation, EME, LLC

343 NLRB 69 (2004)

ISSUE: Whether the Employer violated 8(a)(1) and (3) of the Act by locking out and / or refusing to reinstate those employees who were on strike at the time of the Union’s unconditional offer to return to work, while not locking out or refusing to reinstate workers, who, prior to the Union’s unconditional offer to return to work, had already ceased participating in the strike and had already made their own unconditional offers to return to work.

HOLDING: The Majority held that the employer did not violate the Act by locking out and refusing to reinstate only those workers who stuck with the strike until the end when the Union made an unconditional offer on their behalf to return to work

Mitigation of Damages

Grosvenor Resort

350 NLRB 1197 (2007)

ISSUE: Whether the ALJ properly awarded full back pay to certain alleged discriminatees who (a) delayed their initial job search until several weeks after discharge; (b) voluntarily quit interim work; or (c) performed a limited search for work.

HOLDING: The Majority held that the unlawfully terminated discriminatees failed to make sufficiently reasonable efforts to secure interim work to be entitled to full backpay. The Board denied full back pay to employees whose efforts fell in to the following categories:

Searches commenced more than two weeks after unlawful discharge—absent circumstances justifying a longer delay, employees whose search commenced more than two weeks after discharge will have backpay tolled until the reasonable search began (the mere fact that employees engaged in picketing subsequent to discharge does not relieve them of this responsibility);

Quitting interim employment—employee who quit after incident where coworker embarrassed her in front of customers, was denied backpay for time after she quit the job and remained unemployed. The Board noted that when a discriminatee voluntarily quits interim employment the burden shifts to the General Counsel to show that the quit was reasonable.

Inadequate searches for interim work-

• one application in a two month span inadequate;

• three applications in a three month span inadequate;

• 7 weeks in between applications is insufficient;

• Working for family member which amounts to nothing more than a hobby found inadequate; and

• Securing work soon after discharge but not starting that work for several weeks inadequate.

Information Requests

American Polystrene Corp.

341 NLRB 508 (2004)

ISSUE: Whether the employer claimed a present inability to pay the union’s bargaining demands during collective-bargaining negotiations and whether the employer subsequently violated Section 8(a)(5) of the Act by refusing to furnish the union with requested financial information.

HOLDING: The Majority held that the employer had no duty to provide the requested financial information because, even assuming it did claim an inability to pay, the employer effectively retracted any such claim simultaneously with its denial of the union’s information request the very next day.

Surveillance

Anheuser-Busch, Inc.

351 NLRB 644 (2007)

ISSUE: Whether the Board should grant a make-whole remedy to employees who were disciplined for misconduct (loitering in an unauthorized area of the employer’s facility where they used illegal drugs and urinating off of the employer’s roof) that the employer observed by means of cameras installed without prior notification or bargaining with the Union.

HOLDING: The Majority held that despite the fact that the employer violated 8(a)(1) and (5) by failing to give the union notice and opportunity to bargain regarding the installation of the cameras, the remedy was limited to the 8(a)(5) failure to bargain and did not include a make-whole remedy for the employees engaged in the misconduct.

Discharge

Sacramento Recycling and Transfer Station

345 NLRB 564 (2005)

ISSUE: Whether the General Counsel established as part of his prima facie case with respect to five discharged employees that the employer had knowledge of the employees’ union activity or sentiments based solely on its knowledge of employees’ attempts to unionize a predecessor employer.

Music Express East

340 NLRB 1063 (2003)

ISSUE: Whether the General Counsel established as part of his prima facie case with respect to a single discharge that the employer had knowledge of the employee’s union activities or support based on conversations the employee had with a low level, part-time supervisor who himself was union supporter.

HOLDING: The Majority held that the employer did not violate 8(a)(3) of the Act regarding the discharge as the General Counsel failed to establish employer knowledge of the individual’s union activity or support and, therefore failed to establish an element of a prima facie case pursuant to the Board’s decision in Wright Line.

Caribe Ford

348 NLRB 1108 (2006)

ISSUE: Whether the General Counsel established as part of his prima facie case with respect to a single discharge that the employer had knowledge of the employee’s union activities or support based on the timing of the discharge soon after the employee engaged in open union activity.

HOLDING: The Majority held that the General Counsel failed to establish a prima facie case that the employer violated 8(a)(3) of the Act when it discharged an employee. Specifically, the Majority found that the GC failed to demonstrate the employer had knowledge of the employee’s union activity.

Quietflex Manufacturing Company

344 NLRB 1055 (2005)

ISSUE: Whether the employer lawfully discharged 83 employees, who were peacefully engaged in a 12 hour work stoppage, for refusing to vacate the employer’s parking lot where: 1) the employer requested that employees either return to work or vacate the parking lot area; 2) the employer offered to meet with employees to discuss their issues; and, 3) the employer warned employees that a refusal to move could lead to termination.

HOLDING: The Majority held that the employer lawfully terminated the employees. The Board recognized that where employees engage in lawful on-site work stoppages, it is required to weigh certain factors to determine if the work stoppage has lost protection of the Act. The factors the Board weighs include the following: (1) the reason for the work stoppage; (2) whether the stoppage was peaceful; (3) whether the work stoppage interfered with production or deprived the employer access to its facility; (4) whether employees had adequate opportunity to present their grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether employees attempted to seize the employer’s property; and (10) the reason for which the employees were ultimately discharged. Although the Majority found that the employees had engaged in a peaceful work stoppage, it concluded that after the employer (1) made repeated requests that the employees return to work or move off of the employer’s facility, (2) offered to meet with the group to discuss their issues, and (3) warned the employees that their refusal to return to work or move off the property could lead to termination the employees’ work stoppage became unprotected after they remained in the parking for 12 hours.

Union Paraphernalia

W San Diego

348 NLRB 372 (2006)

ISSUE: Whether the Employer violated 8(a)(1) of the Act when it prohibited its employee from wearing a union button while at work.

HOLDING: The Majority held that the employer did not violate the Act by prohibiting its employee from wearing the union button in public areas. In so holding, the Board recognized the precedent set forth in Republic Aviation Corp., v. NLRB,121 that employees have a right to wear union insignia. However, the Majority also recognized that an employer may lawfully restrict the wearing of union insignia where special circumstances exist which warrant a restriction. In this case, the Hotel articulated its interest in providing its guests with a unique atmosphere and ambience. In that regard, the Hotel maintained a policy on attire that prohibited all non-business uniform adornments, and required its in-room delivery personnel to wear black t-shirts, black slacks, and a black apron.

The Majority also held that the employer violated the Act by refusing to allow its employee from wearing a union button in non-public areas of the Hotel.

Leiser Construction, LLC

349 NLRB 413 (2007)

ISSUE: Whether the Employer violated the Act by prohibiting its employee from wearing a union sticker depicting someone or something urinating on a rat that was designated as “non union.”

HOLDING: The Majority held that the employer did not violate the Act by prohibiting its employee from wearing the union sticker. In so holding, the Majority first relied on Board precedent (e.g. Southwestern Bell Telephone Co.122) which recognizes an employer’s right to restrict the display of insignia that is vulgar and obscene.

The Majority next noted that the employer’s prohibition was narrowly tailored to prohibit only the rat sticker, and not the numerous other union-related stickers on his hard hat that were not obscene or vulgar.

Interrogation

Winkle Bus Co.

347 NLRB No. 108

ISSUE: Whether in the context of an organizing campaign it is unlawful for a supervisor to ask an employee whether he wanted to wait for years for a raise like employees of another employer that was the subject of a ULP hearing involving refusal to bargain allegations.

HOLDING: The Majority held that the supervisor’s question did not constitute an unlawful statement of futility as it simply identified one of the possible consequences of unionization (i.e. that bargaining could take time before employees would receive any raises).

The Majority found that the supervisor’s statement in this case did not rise to the level of an unlawful threat of futility (e.g. where an employer states or implies that it will ensure nonunion status by unlawful means.) In so finding, the Majority distinguished the statement at issue in this case from unlawful threats that negotiations “would start from zero” and that employees would not receive scheduled wage increases.

Medieval Knights, LLC

350 NLRB 194 (2007)

ISSUE: Whether or not statements made by a labor consultant, hired by the employer during a union organizing campaign, are lawful where the consultant informs employees that all negotiations are different and that employers could hypothetically give in to lesser items to show good faith bargaining while not agreeing to a full agreement thereby lawfully stalling negotiations.

HOLDING: The Majority held that the statements are lawful as the labor consultant’s remarks involved hypothetical bargaining parties and there was no evidence that the consultant threatened or suggested that the employer would engage in the bargaining he described. In reaching its holding the Majority also considered the fact that the consultant stated that all negotiations are different and that negotiations could take weeks, months, or more than a year. The Majority concluded that the consultant’s statements lawfully pointed out to employees the possible pitfalls the bargaining process.

George L. Mee Memorial Hospital

348 NLRB 327 (2006)

ISSUE: Whether the employer unlawfully interrogated employees about pro union statements attributed to them in fliers that were openly circulated to employees at the employer’s facility.

HOLDING: The Majority held, among other things, that the questioning did not constitute unlawful interrogation as the employees were open and active union supporters who articulated their sentiments in fliers that were circulated throughout the facility.

Longs Drug Stores California, Inc.

347 NLRB No. 45 (2006)

ISSUE: Whether the employer engaged in objectionable conduct when its leadmen engaged in conversation with one another near the election polls regarding, for example, the likelihood that the union would lose the election.

HOLDING: The Majority held, among other things, that the comments of the leadmen did not constitute objectionable conduct as they were engaged in conversation with one another and not with the voters as was the case in Milchem, Inc.123 the seminal case on the issue of employer misconduct in the polling area. In so holding, the Majority did not pass on the agency status of the leadmen.

Frito Lay, Inc.

341 NLRB S1 S (2004)

ISSUE: Whether the Employer's use of “ride-alongs” (nonunion truck drivers from Frito Lay facilities and company managers and supervisors) to communicate with the unit employees prior to a union representation election is objectionable conduct.

HOLDING: The Board held that Frito Lay's use of ride-alongs was not coercive.

An employer's use of ride-alongs to communicate with its employees during an election campaign is only objectionable if, under all of the circumstances, the use of ride-alongs interferes with the employees’ right to freely choose a bargaining representative.

In deciding whether an employer's use of ride-alongs amounts to objectionable conduct, relevant factors include: (1) whether the use and conduct of ride-alongs is reasonably tailored to meet the employer’s need to communicate with its employees in light of the availability and effectiveness of alternate means of communication; (2) the atmosphere prevalent during the ride-alongs and the tenor of the conversation between the drivers and the employer’s representatives; (3) whether the employer effectively permitted the employees to decline ride-alongs; (4) the frequency of the ride-alongs, both during and prior to the election campaign; (5) the positions held by the ride-along guests; (6) whether the ride-alongs were scheduled in a discriminatory manner; and (7) whether the ride-alongs took place in a context otherwise free of objectionable conduct.

Work Rules

Tradesmen International

338 NLRB 460 (2002)

ISSUE: Whether the following employer rules would reasonably tend to chill employees in the exercise of Section 7 activity: (1) prohibition of disloyal, disruptive, competitive or damaging conduct; (2) prohibition of slanderous or detrimental statements; and, (3) requirement that employees represent the employer in a positive manner.

HOLDING: The Majority held that the rules did not violate the Act. In so holding, the Majority acknowledged that the Board’s analysis in Lafayette Park,127 is controlling. In that case, the Board held that rules similar to the ones at issue here were lawful because they served a legitimate business interest and reasonable employees would not construe such rules as intended to proscribe Section 7 Activity.

Martin Luther Memorial Home, Inc.

343 NLRB 646 (2004)

ISSUE: Whether the employer’s rules prohibiting “abusive and profane” language would reasonably tend to chill employees in the exercise of their Section 7 activity.

HOLDING: The Majority held that the rule prohibiting abusive and profane language is lawful. In so holding, the Majority recognized that where, as here, a rule does not on its face restrict Section 7 activity, it will be found violative only if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 activity.

The Majority also determined that the rule was lawful because an employer has a right to maintain a civil and decent workplace and to maintain rules that promote an atmosphere free of all types of harassment.

Guardsmark, LLC

344 NLRB 809 (2005)

ISSUE: Whether the employer’s rule prohibiting its employees who provide security services from fraternizing with coworkers or employees of clients would reasonably tend to chill employees in the exercise of their Section 7 activity.

HOLDING: The Majority held that the rule did not violate the Act. The Majority considered the rule in the context of other rules the employer maintained prohibiting dating and becoming overly friendly with the client’s employees and coworkers. In the context of those other rules, the Majority determined that employees would reasonably understand the rule to prohibit “personal entanglements” and not to prohibit activity protected by the Act.

The Majority also acknowledged that the non fraternization rule is particularly reasonable with regard to security guards and is “designed to provide safeguards so that security will not be compromised by interpersonal relationships ...”

Strike Notice for Health Care Institutions (Section 8(g))

Alexandria Clinic, P.A.

339 NLRB 1262 (2003)

ISSUE: Whether the employer violated the Act by discharging its nursing employees because of a failure to comply with the requirements of Section 8(g) when there was a four hour delay in the start of an economic strike at a healthcare center.

HOLDING: The Majority held that the employer did not violate the Act by discharging the nursing employees on the grounds that the strike at the clinic started four hours after the time set forth in the union’s 10-day notice to the employer.

Other Withdrawal of Recognition

Nott Company

345 NLRB 396 (2005)

ISSUE: Whether, as a matter of law, the Union was entitled to a conclusive presumption of majority status through the term of its contract where the employer merged its unionized 14-employee business with a non-union 14-employee business.

HOLDING: Applying accretion principles, the majority concluded that the Respondent lawfully withdrew recognition from the Union because the Union lost majority status once the two companies were merged. Given that the previously represented employees are no longer a majority of the new overall unit, the majority decided there is no bargaining obligation in the unit and accordingly, as the General Counsel and the Charging Party acknowledge, the unilateral changes that occurred were not unlawful because the Union no longer had Section 9(a) status.

Because the Respondent consolidated or integrated an equal number of union and unrepresented employees in one group, the unrepresented employees could not be accreted into the bargaining unit, the Union automatically lost its majority status, and the Respondent's withdrawal of recognition did not violate the Act.

Contract-bar principles are inapplicable essentially because this is an unfair labor practice proceeding and the contract-bar doctrine is limited to representation proceedings.

Important Cases Presently Pending Before the Board

Dana Corporation and UAW131

7-CA-46965, 7-CA-47078, 7-CA-47079,

7-CB-14083, 7-CB-14119, 7-CB-14120 (April 11, 2005)

ISSUE: Whether pre-recognition bargaining between employers and unions that do not represent a majority of employees as part of a voluntary recognition agreement provides unlawful support to the union in violation of section 8(a)(2) of the NLRA. Whether the Letter of Agreement entered into between Dana and the UAW constitutes an unlawful pre-recognition contract in violation of the Act under Board precedent in Majestic Weaving.132

HOLDING: The Administrative Law Judge dismissed the Complaint distinguishing Majestic Weaving on the basis that the Letter of Intent was not a collective bargaining agreement.

SIGNIFICANCE: If the Board affirms the ALJ's decision dismissing the Complaint against Dana and the UAW for pre-recognition bargaining, it will open the door for other forms of pre-recognition negotiations the results of which will be to show unrepresented employees in advance what the terms and conditions of their collective bargaining agreement will be. It will likely encourage more voluntary recognition agreements based on employer neutrality and card check.

New York New York Hotel & Casino

28-CA-14519 (July 25, 2001)

ISSUE: Whether New York Hotel & Casino (“Casino” or “Owner”) may prohibit off-duty employees of Ark Las Vegas Restaurant Corporation (“Ark”) from engaging in consumer handbilling activities in the porte- cochere on the Owner’s property and in the areas in front of the Ark restaurant that are located on the Casino’s premises.

HOLDING: The NLRB issued its initial decision in this matter in 2001.139 In that initial decision, the Board held that since the off duty employees of Ark were engaged in lawful handbilling of customers in non-work areas of the Casino’s property, the Casino violated section 8(a)(1) of the Act by prohibiting Ark’s off duty employees from engaging in that activity.140

In reaching that decision, the Board distinguished this case, involving the handbilling activity of off duty Ark employees from cases involving “individuals who do not work regularly and exclusively on the employer’s property, such nonemployee union organizers” who “may be treated as trespassers, and are entitled to access to the premises only if they have no reasonable non-trespassory means to communicate their message.”

STATUS: On appeal the D.C. Circuit Court of Appeals denied enforcement of the Board’s orders stating that the underlying decisions upon which the orders were based “leave a number of questions... unanswered.”142 The Court remanded the matter to the Board with instructions to answer the following specific questions:

1. Without more, does the fact that [Ark’s] employees work on the [Casino’s] premises give [Ark] employees Republic Aviation rights throughout all of the non-work areas of the hotel and casino?

2. Or, are the [Ark] employees invitees of some sort but with rights inferior to those of the [Casino’s] employees?

3. Or should [Ark’s] employees be considered the same as nonemployees when they distribute literature on the [Casino’s] premises outside [Ark’s] leasehold?

4. Does it matter that [Ark’s] employees here had returned to the Casino after their shifts had ended and thus might be considered guests of the Casino?

5. Is it of any consequence that [Ark’s] employees were communicating, not to other [Ark] employees, but to guests and customers of the [Casino]?

The Board accepted Briefs and heard oral argument on these issues in November 2007.

These matters are still pending before the Board.

Southwest Regional Council of Carpenters (Carignan Construction Co.)

NLRB ALJ, 31-CC-2113 (Feb. 18,2004)

ISSUE: The legality under Section 8(b)(4)(ii)(B) of the Act of displaying large stationary banners announcing a“labor dispute” at a neutral employer’s worksite.

HOLDING: In Carignan Construction Co., the United Brotherhood of Carpenters displayed large signs at the property of neutral employers who subcontracted work to non-union contractors with whom the unions admittedly had primary labor disputes. The banners in Carignan measured as large as 20 x 4 feet, and displayed the words “labor dispute” and stated “shame on” the neutral employers. The General Counsel took the position that the bannering constituted unlawful signal picketing or fraudulent speech. The Carpenters took the position that the conduct was protected free speech, and did not constitute unlawful picketing.

The ALJ agreed with the Carpenters in Carignan that the bannering was neither picketing nor its functional equivalent. ALJ Kennedy concluded that the bannering was more akin to lawful billboard advertising, and fell within the publicity proviso to Section 8(b)(4) of the Act. The ALJ dismissed the underlying unfair labor practice charges.

Local Union No.1827, United Brotherhood of Carpenters and Joiners of America (Eliason & Knuth of Arizona, Inc.)

2003 WL 21206515, 2003 NLRB LEXIS 256 (May 9, 2003)

ISSUE: Whether the activity of various local unions violated 8(b)(4)(ii)(B) of the Act when the Unions engaged in a campaign of secondary activity whereby they displayed large banners at the sites of secondary employers carrying the message “SHAME ON [NEUTRAL PERSON]” and “LABOR DISPUTE”.

HOLDING: The ALJ held that the bannering was sufficiently akin to picketing to constitute unlawful secondary activity in violation of 8(b)(4)(ii)(B) of the Act.

Recent Board Decisions

QUESTIONS?

Enforcement of Immigration Laws: Government Site Visits and AuditsImmigration Compliance Plans and Best Employment Practices

Government Audits & Site Visits

• Form I-9 Audits

• Public Access File Audits/Investigations by the Department of Labor Wage and Hour Division (H-1B)

• Site visits by United States Customs & Immigration Services (USCIS) Office of Fraud Detention and National Security (H-1B)

I-9 Form

• All employees – citizen and noncitizen – hired after November 6, 1986 and working in the United States must complete an I-9 Form (Section 274A (b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. § 1324a (b))

• Its purpose is to document that each new employee is authorized to work in the United States

• The forms are not filed with the government

I-9 Form Audits

• US Immigration and Customs Enforcement (ICE) issued Notices of Inspection to 652 businesses nationwide on July 1, 2009

• In a single day, ICE issued more notices than in all of the previous year (503 notices in 2008)

• It has been reported that the audits signal a focus on building criminal cases against employers

Information Requested in an Audit

• The information requested may include:

Original I-9s

Employee information (names of current and terminated employees, hire and termination dates, social security numbers and dates of birth)

Payroll data (wage and hour reports and tax statements)

Copy of I-9 policy (retention and destruction policies)

Name of persons responsible for completing the forms

Information about your business (date of establishment, form of business, state of incorporation and revenue)

Department and job titles of employees

Unemployment insurance reports

Penalties for Substantive Violations

• Range from $110 to $1,100 per violation

• In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. (See INA §274A(e)(5) (8 U.S.C. 1324a (e)(5)))

• Appoint a point person to develop and implement a compliance plan

Immigration compliance may be done by several people in different departments

• Conduct internal audits

Make it an agenda item before an ICE officer is at your door

• Consistently apply the rule

Make every employee complete the form; not doing so could open an employer up to discrimination charges

• Provide training to employees

Laws and requirements change

Compliance Plans and Best Employment Practices

Public Access File Audits

• Employers must keep a Public Access File (PAF) for each H-1B employee (20 CFR 655.760)

• The employer must make certain documents available in its PAF for public examination at the employer's principal place of business in the U.S. or at the employee’s place of employment

PAF Requirement

• Establishes that the employer has complied with the wage requirement of the H-1B Labor Condition Application (LCA) procedures

• Protect the employer in cases of a complaint being made against the employer or in case of a DOL audit

Investigations and Audits

• Investigations are conducted by the Wage and Hour Division (WHD) of the US Department of Labor

• Can be triggered by a complaint filed by an “aggrieved party” alleging violations of the LCA terms

• Stem from credible information from a source other than an “aggrieved party”

• If the WHD has reason to believe that a violation has occurred

Fines and Penalties

• “Nonwillful Violators”

Fines up to $1,000 per violation

Prohibition on filing any immigrant/nonimmigrant petition or LCA for one year

• “Willful Violators”

$5,000 to $35,000 per violation

Prohibition on filing any immigrant/nonimmigrant petition or LCA for three years

Fail to meet LCA condition or misrepresent information

• Designate a point person

• Develop and implement a compliance plan

• Conduct internal audits

• Provide training to employees

Compliance Plans and Best Employment Practices

H-1B Site Visits

• Conducted by United States Customs & Immigration Services (USCIS) Office of Fraud Detention and National Security (FDNS)

• FDNS was created in 2004 to detect and combat immigration benefit fraud

• FDNS has commenced an assessment of the H-1B program

H-1B Site Visits

• For the most part the visits have been unannounced

• Employer can request for its attorney to be present, but FDNS will not typically reschedule a visit for the attorney to be present

Information Requested in Site Visit

• Usually verify information in a specific petition

• Usually request to speak with person signing the Form I-129, or if that person is unavailable, a representative from human resources department

• May review company’s tax returns, wage reports, and other information to verify that employer is a bona fide business

• May take photographs of facilities

• Likely interview beneficiary and other employees

Best Employment Practices

• Retain complete copies of all I-129 petitions and supporting documentation in a confidential file maintained by a designated company official

• Contact counsel

• Request name, title and contact information of investigator

• If counsel cannot be present, have a witness attend all employee interviews

• Make a copy of all documents provided