Back in 2011, the National Labor Relations Board tried to pass certain rules that would have changed the union-election process in eight ways:
- Allow for electronic filing of election petitions and other documents.
- Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
As my buddy Rubo used to say: “It’s like school on Saturday; no class.”
Read all about it — yesterday’s BIG federal appellate court decision; not my buddy — after the jump…
Before I get into the this new bill, let’s clear up a popular misconception: David Hasselhoff lives in my basement rent-free right-to-work means that an employee can be fired at any time for any non-discriminatory reason. No, dudes. That’s called at-will employment.
Right-to-work laws give individual employees in a unionized workplace the right not to join or financially support the union. 24 states, plus Guam, have passed right-to-work laws. Absent a right-to-work law, all employees in a collective bargaining unit must join the union and pay union dues.
And Pennsylvania could be next.
Ladies and gentlemen, the National Labor Relations Board is back in business.
(Well, somebody tell that to the Board, where it’s been business as usual lately. More on that in a moment.)
Yesterday, the Senate voted mainly along party lines to confirm five members — a full slate — to the Board.
So much labor-and-employment-law news this week, I’ll do what I can to cram it into a single post. Here goes…
From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to — gasp — seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option and compromising photos..
Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB’s General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.
There’s not a whole lot that we have in common. I’m more erudite (you know, the blog thing), better looking, and more arrogant confident.
Given our differences, what I’m about to say may come as a surprise: when I was a associate attorney, I discussed salaries with other associates.
(I’ll pause as the shock dissipates).
Yep.
And not even the Associate General Counsel at the National Labor Relations Board could save this employee.
In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party — and nine other people (of whom seven were current employees) participated in a private group message on Facebook. During that sesh, the Charging Party started mouthing off about his employer, saying, “They [the Employer] are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK…FIRE ME….Make my day…”
In a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker’s appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court’s decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.
The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).
This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.
On Tuesday, the D.C. Circuit Court of Appeals ruled here that the National Labor Relations Board cannot require private employers — union and non-union — to hang this poster in a conspicuous location in the workplace. Billed by the Board as a notice advising employees of their rights under the National Labor Relations Act, many employer groups viewed the “mandatory” poster as more of an encouragement to unionize than as a neutral informational poster.
Previously, the lower court in DC had upheld the poster rule. Meanwhile, a South Carolina federal court had shot it down.
The appellate court determined that the poster rule would violate employers’ free speech under Section 8(c) of the National Labor Relations Act. The appellate court also ruled that the poster rule unlawfully expanded the Board’s enforcement powers.
That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”
I’ll set it up for you:
You run a non-union company called RH Chili Peppers. However, one of your employees, Disgruntled Donny, has been trying to get his co-workers to help unionize the workplace. Thus far, he has been unsuccessful. So, DD takes to Facebook and posts a message bashing the wages and benefits at RH Chili Peppers on a Facebook page called, “Peter Picked a Peck,” a Facebook page that DD “likes.” PPaP is frequented by employees, like DD, who work in the chili pepper industry, albeit at other chili pepper companies in the city.
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