Hostess has filed for Chapter 11 for a second time in 10 years. And last month the locally-renowned bakery Rolf’s Patisserie shuttered its doors permanently.

It’s obviously not fair to compare a multinational food product manufacturer with a micro-regional fancy-cake-maker, but I’m going to do it anyway, because it’s an easy way to make a point.

Both of the news stories surrounding these companies center on employment issues. Almost immediately after it filed for bankruptcy, Hostess cited its pension liability and rigid work rules as the principal issue in restructuring the company; it needs to get out of its current collective bargaining agreements and start over, it says. The Teamsters disagreed, of course, but the correlation was there. Even though the unions are going to take it on the chin, the message turned out all collaborative and warm. The company that brought us Twinkies and other delicacies was fighting for its life, and it just needs the union’s help to stay afloat. The union obviously held a press conference of its own, but the tone was already set. Hostess, for PR purposes, at least, was playing nice.

(Hi, everybody. I’m back)

Yes, I said again. Because he did this last time, too. Craig Becker, whose appointment just expired, was a recess appointment as well. Both times, incensed Republicans have unloaded a magazine of PR soundbites about the President circumventing the Constitutional role of the Senate, and creating some kind of rogue bureaucracy that’s equal parts fascist dictatorship and Marxist, wealth-sharing, Soviet state.

Meanwhile, a couple of news stories later, the Indiana Democratic minority is walking out of session again because the Republican majority is insisting on introducing legislation that would make Indiana the 23rd right-to-work state in the nation. That’s right, I said again. Again. Indiana Dems spent several weeks in a motel in Urbana-Champaign to keep the bill off the floor in 2010. Ground the whole legislative session to a halt.

Two labor issues, two stalemates among legislatures. Look, I know the ideology behind organized labor is deeply-rooted and not going anywhere any time soon. But that actually speaks to my point here. These are not new issues. The political lines between unions and company owners were drawn before the ones separating the modern parties. And still, Presidents appointed NRLB members who actually got confirmed, and minorities showed up on the first day of session.

The obvious question is why, all of the sudden, these historical fissures are causing such caustic stalemates. But, to be honest, I don’t really care what the question is. And whether you’re a unionized worker or a business owner, Republican or Democrat, neither do you.

Every day I wake up with items from yesterday’s to-do list. Every day I work too much, fight harder, and every night go to sleep too late with half a to-do list still to be done. We all are. Welcome to The Recovery. And that’s fine. That’s how we do it here in America. We work hard.

What we don’t need – worker and business owner alike – is for the entire legislative session or regulatory schema to get rutted by the pissing contest that has replaced political discourse, wondering if Hot-Button-Issue A is going to kill our company’s profit for the year. And (not to wax too grandiose) I’m not working this hard to live in a country that can’t suck it up and cooperate with people they don’t like. Even if it means taking the uppercut to the chin, voting “no” for the bill or the person you don’t like, and fighting to get a majority the next time around so you can win some fights.

Honestly, for three years now the economy’s been slowly clawing its way out of the toilet, and every economic pundit I’ve heard during that time has said the #1 thing holding us back is fear. Uncertainty. Employers need to know what’s going to happen a year from now to know whether it makes sense to hire someone. Employees can’t spend any money until they know they’re going to have a job in 6 months. We can’t know what the markets will do tomorrow, but we’re supposed to be able to forecast what the political climate will look like a year from now.

I don’t think the whole country is looking for a single answer to the economic problem. What we’d like, if anyone elected to anything is listening, is any movement at all. Just one time, for someone to say “well, they got us this time, we’ll get ‘em next time” and let us move on.

And yet, with approval ratings further down the crapper than their economy, Congresspeople and Senators from every seat on the political seesaw still pull this “I’m-taking-my-ball-and-going-home” garbage. It’s petty and weak. Learn how to lose, folks. The rest of us need to get some work done.

You know, if I’d hired a team that produced results this bad, I’d fire them all and start over. Man, if only I’d hired them. If only…

According to the official press release, the NLRB’s reason is that there’s confusion from business owners about which companies are under the Board’s jurisdiction, and they want to spend some time educating the business community about the issue.

Eric Meyer over at the Employer Handbook calls bulls— on the PR explanation for the delay, and I completely agree. Eric notes that the Board made quite a big deal out of the FAQ they released with the final regulations, so there’s not that much educating left to do. Also, figuring out if you’re covered by the NLRB’s jurisdiction is not that hard. Seriously, we do hard things here; this is not one of them….

I think most employer-side attorneys would tell you the real reason for the postponement has something to do with the stream of lawsuits that have been filed challenging not just the poster requirement, but the NLRB’s ability to enact regulations at all.

The new date will pose some logistical problems, though. Many employers buy new laminated breakroom posters around the new year, and the companies that make them have been busy redesigning the 2012 models to fit the NLRB info in. Now that the Board’s regulation is up-in-the-air, poster companies (and the employers that buy those posters) are going to have to decide whether to print them with the info or not.

At any rate, no need to hang the new poster next month like we expected.

It’s ready for download from the NRLB website.  The Board is giving you the option of downloading one 11 x 17 poster, or two 8.5 x 11′s, if you’re rocking the standard office printer.

The poster doesn’t have to be put up until November 14, so if you want to be stingy, you can wait until then. While there’s certainly no need to spend money on it, I would suggest just printing the thing out and hanging it now, so you don’t forget about it. When you buy next year’s commercial workplace poster, the NLRB language should be included in it.

Or you could just sue the Federal Government. That’s also an option.

Well, friends, that day has finally come.

An administrative law judge in Buffalo, N.Y. issued the first decision analyzing a so-called “Facebook Firing” – a termination (or, in this case, 5 terminations) for posting about your employer on Facebook.

The facts are simple: The employer, Hispanics United, is a not-for-profit in Buffalo providing domestic relations and housing help to the needy. One of the workers in the domestic relations department had been critical for some time of the team that provided housing services. She made these criticisms through text messages, and had threatened to go to the director of the NFP with her concerns.

One Saturday, one of the housing employees posted the following on her Facebook wall:

L.C., a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?

Four of the employee’s coworkers responded, as did L.C., the critical employee, herself. There was a little war of words about how hard they work, and what-not. It reads like a spat. That’s about it.

The critical employee complained, and the director of the organization called each of the five employees into her office and fired them the following Tuesday. Incidentally, the director’s secretary, who also posted on the employee’s wall, was not disciplined.

The director said that the woman had had a heart attack because of the comments, and the company would have to pay her compensation. Neither of those things were proven at the NLRB hearing – and the ALJ doubted either was true.

The ALJ held that the comments were protected under Section 7 of the National Labor Relations Act, which gives employees the right to “engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The ALJ relied on previous NLRB decisions to determine that the employee’s posts were a collective attempt at preserving their jobs, and were a first step to acting against L.C., who they reasonably thought was out to get them in trouble with the boss.

The Takeaway

The big news here is probably going to read like common sense to most of you. If the ALJ’s decision stands, it will mean that social media communications are just like phone communications or water cooler communications. If employees talk to each other – regardless of the medium they use – that talk can be protected by the NLRA.

This isn’t really surprising, right? The whole concept of Facebook is to take something that’s been around forever – socializing – and give it a new platform. Well, turns out the same is true for labor law. So far, Facebook isn’t the source of some new precedent or legal issue, it’s just a new platform for classic protected communication.

The reason the Facebook firings are so noticeable is because unlike a water cooler conversation, Facebook leaves a paper trail. This is probably going to make Section 7 violations more common, for two reasons:

1. More violations of the law. The more employers see what their employees are saying, the more they will fire them for it.
2. Easier cases for the NLRB to win. When you can produce the actual employee communications, you don’t have to worry about the he-said-she-said issues surrounding actual water cooler conversations. Facebook = a whole lot more smoking guns.

What employers need to take away from the Hispanics United case is this:

Just because it’s more public, or preserved and readable on the internet, doesn’t make the chatter any less protected.

In fact, the fact that someone can point to the exact communication that caused them to get fired is all the more reason for you to run a termination or other disciplinary decision by your employment counsel before you pull the trigger.

Stay tuned, folks. This is likely the first of many social media cases to be decided in the next year or so by the NLRB. This one’s next step is a review by the actual Board, though I doubt they will change much of the ALJ’s decision this time around.

So, it must be hard being a management attorney on Labor day, huh?

Caught me completely off guard. My first thought – this must be what prosecutors hear on Criminal’s Day - was useless. I think most employer-side L&E attorneys have a stock answer waiting for questions like these. Here, in order of appearance, are the other horrible responses that popped into my head:

1. “Managers work, too, so ‘labor’ technically applies to them…”
2. “Labor Day’s lost its meaning. Now it’s just about grilling brats and putting away your white pants.”
3. “Yes. Yes it is. I usually just go get Chinese food and see a bunch of movies.”

Luckily, before any of those escaped my ADD brain, my defensiveness subsided and I was able to just, you know, tell the truth. Which is this:

ca. 1910 | From the Library of Congress, via Flickr

Labor Day is not hard for me at all. Not because it has no meaning – it does. Especially around these parts. No, the notion that I would have trouble with Labor Day is grounded in the idea that, as a representative of “Management”, I am the enemy. The evil at the other end of the table, twisting my exquisite handlebar mustache and whispering ways to screw over workers into the ears of the Boss.

It is an idea that I (and nearly all of my employer-side colleagues) wholeheartedly reject.

I believe in the American system of labor as much as anybody. And while there are some things about workforce law that I would like to see changed, none of them involve the ability to act as a collective unit.

Not to harp on this point, but I think that when you listen to the rhetoric coming from both ends of the Labor/Business divide, you get the sense that everyone with any skin in the game hates each other. It’s just not true. Most of us on both sides of the table recognize that the best way to run a successful business is to have employees that are respected and dedicated to the company’s success, whether union or not.

So, even though it’s a day late, I wanted to put up this note because I think Labor Day is a perfect time to remember the vast majority of unions and businesses, who work together amicably, sort through differences professionally, and understand that everyone involved is in it for the right reasons, even if we disagree on the details.

Happy Labor Day, indeed.

Before they lose a voting quorum later this year, the National Labor Relations Board has issued two major decisions overturning two highly-praised-and-criticized rulings by the Bush-era Board. They both suck for employers, but from the PR I’ve been reading over the past 12 hours, you’d think they were either going to save or kill America’s future. Neither is true.

I’m going to talk about one of the cases, Lamons Gasket, because it’s getting the most press. Then I’ll have a very calm word about hysteria and politics.

Lamons Gasket: Reversing the EFCA Straw Man

In Lamons Gasket Co., the Board reversed Dana Corp., a 2007 decision by the Bush-era Board that was pilloried by union folks from the day it was published. Here’s the issue:

Typically, when a group of employees votes to be represented by a union, there’s a period of time where the union’s validity can’t be challenged by employees. This time period, called the “recognition bar” is meant to give “the bargaining relationship…a fair chance to succeed.” Basically, the recognition bar keeps an employer from trying to goad its employees into revoking the union representation before it’s tried to work with the union.

In Dana Corp., the Board carved out an exception to the recognition bar. Where an employer voluntarily recognizes a union as the representative of its employees, the employees had 45 days to file a petition challenging union recognition. If 30% of the bargaining unit signed onto the petition, a secret ballot election would have to be held to make sure a majority of the workers actually wanted the union.

Here’s the thing: employers can voluntarily recognize a union after the union shows an “unassisted and uncoerced showing of interest from a majority of employees.” That “showing of interest” almost always means the union has collected recognition cards from a majority of the employees. If you’ve followed Labor Law at all, you know where I’m going with this. Cards? Secret Ballots?

Sounds a lot like the Employee Free Choice Act, right?

Yeah. In 2007, with the Presidential election looming, EFCA was a hot-button issue. Most people thought that an Obama election would mean near-instant passage of the Card Check law. (Didn’t exactly turn out that way, but in ’07, nobody knew that.) When the Board dropped Dana Corp. into that landscape, unions went nuts. They said Dana Corp. was doing away with decades of Board precedent on voluntary recognition and was a back door way to cut the legs out from under EFCA.

It wasn’t. The recognition bar still existed wherever employees actually voted for a union. Dana Corp. was a reasonable way to make sure that employees were getting a union that they actually wanted, instead of being strong-armed or confused into a representation that they’d be stuck with for a year or more. If you need more proof of this, check out Jon Hyman’s first-hand account of a Dana Corp. decertification here.

When it became clear that EFCA was going to die in Congress, unions saw reversing Dana Corp. as something of a consolation prize. EFCA the Home Game. If they couldn’t get the labor laws changed, at least they could get a liberal Board to reverse Dana.

And that’s just what happened. Just like we expected. In Lamons Gasket, the current Board examined data showing that Dana Corp. only decertified, 1% of voluntary recognitions, and therefore decided it was unnecessary. The decision isn’t shy about it’s relation to the bigger fight over EFCA:

The decision in Dana thus undermined employees’ free choice by subjecting it to official question and by refusing to honor it for a significant period of time, without sound justification.

Lamons Gasket Co. at Page 2 (emphasis added).

The Takeaway

So what does all this mean? It means that Liberals believe card check is a valid way for employees to choose a union, and that Conservatives don’t.

Shocker.

In reality, it means that there will be employees out there that are represented by unions that probably don’t have majority support. As an employer, I think it means you should refuse to voluntarily recognize a union unless you are 100% convinced your employees are on board.

And that’s it. After all the wrangling and shouting and this ridiculously-long blog post, that’s all Lamons Gasket means. Union drive? Demand the election.

(Epilogue)

Stop Screaming! Bad Labor Law ≠ Political Armageddon

Okay, so Lamons Gasket sucks. It reverses a ruling that was reasonable and really helped protect employees. But it was also pro-business, and it was replaced with a pro-union rule. If your labor lawyer didn’t tell you this was probably going to happen two years ago, then you need to start shopping, and drop the word “proactive” a lot during the bidding process.

The problem is both Dana and Lamons cannot escape the politics surrounding them. But do those politics affect your business? Not as much as everyone is trying to convince you they do. Lobbying groups, twitchy labor lawyers, conservative bloggers and politicians are pulling out some serious shock and awe in response to the decision. Forced unionism! Attacks on worker’s rights! An underhanded scheme! By union extremists! That have hijacked the government! And they’re going to tell you all about it in URGENT LABOR LAW ALERTS!!!!!

Dial. It. Down.

I think Lamons Gasket is a dumb reversal that will hurt employees, but it’s not the end of the world. Remember the takeaway – if you think the union could sneak in against your employee’s will, just don’t voluntarily recognize. Make ‘em prove it. End of issue.

The effect of the NLRB roller coaster will not be avoided by bloggers and lobbyists working you into a frenzy, making you hate Democrats or overblowing the issue in whiny press releases. Leave the politics to people who don’t have anything better to do.

I promise you, the best thing you can do for your business is turn off the spigot of rhetoric and go back to work. The decision is what it is. Not good, but we’ll cope. And regardless of what you hear, it hasn’t eliminated secret ballot elections. EFCA will not be passed on its back.

This is what the NLRB does. When the White House changes hands, the NLRB does, too. And that means some opinions from the previous Board get reversed. Dana’s been in the sights of unions since it was issued in ’07. No one on our end of the bargaining table should be surprised that it got axed. If a conservative Board takes over, I can tell you right now it’ll get knocked back the other way.

Being angry at the Board because it issued the decision is like being mad at the bears in Grizzly Man. It’s a tragedy, no doubt. But you knew it was coming.

It’s the Nature of the Beast.

By thezenderagenda.com

Here’s the long and short of it: Beginning November 14, 2011, if you employ people – at all – you will be required to put up an 11×17 poster that tells your employees that they have the right to organize, bargain collectively, and engage in protected concerted activity, and provides the number to the NLRB to report any violation of their rights. The poster will also tell them they have the right not to join a union, too. Just to make it fair.

The poster will be made available in other languages, and if 20% of your workforce speaks another language, you’ll need that poster, as well.

Oh, and if you regularly post notices to your employees on an intranet, the notice(s) will have to appear there, too.

Actually, all that’s just the “short” of it. The “long” would have to apply to the final rule as it appears in the Code of Federal Regulations, which is nearly 200 pages long. Most of it is response to the comments from business groups who opposed the rule – and the Board’s rulemaking at all – during the lead up to today’s issuance.

And it really does apply to everybody, folks. From the NLRB’s announcement:

There is no union in my workplace; will I still have to post the notice?

Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor. Will I have to post the notice?

The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?

The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

Failure to post the notice will be considered an unfair labor practice. While the Board can’t impose fines for failing to put up the poster, it can extend the statute of limitations for filing charges if an employee claims he didn’t know his rights because the poster was missing.

If you’re looking for a silver lining in all of this, here’s one I found in the thick of the final rule: originally, employers who regularly addressed their workforce via email would have to notify all employees by email as well. The Board eliminated that requirement, noting how confusing and repetitive it would be to re-send the notice to everyone any time a new person was hired. The required wording for the link to the intranet posting, which originally read “Important Notice about Employees Rights to Organize and Bargain Collectively with Their Employers” has also been changed to “Employee Rights under the National Labor Relations Act.”

(ht Jon Hyman)

Notably, this particular incident wasn’t a product of the recession or the global economy or anything like that. From the looks of things, it was a simple corporate falling out. These two companies had worked together for decades, and one of them decided it was time to move on. Which is a good reminder to us all: these things happen. Regardless of the market forecast, accounts can be lost, and adjustments have to be made.

My heart goes out to those whose reality has changed. God knows I know what it’s like. My mind, on the other hand – which for better or worse views the world through Labor & Employment-colored glasses – thinks maybe its time we talk about what to do when you’ve got to let a lot of people go.

There’s a lot of ground to cover, so today’s post is going to just go over the basics of what the laws require. Future posts this and next week will discuss more specifics: what goes in the notice(s), exceptions to these requirements, how to calculate when the notice should be given, etc.

The Basics

The federal law governing mass layoffs is called the WARN Act. Before 2008, I’d say 99% of the populace had no idea what the WARN Act was. To say awareness of WARN has grown over the past few years would be an understatement. If you’ve been following the labor news through the recession, you’ll probably remember the Republic Windows sit-down strike from a few years ago. That incident – where a manufacturer here in Chicago shut down overnight after the bank pulled its line of credit – made WARN issues national news.

The WARN Act requires that companies with 100 or more employees provide at least 60 days’ notice of any “mass layoff” or “plant closing”. That means if you are laying off at least 500 people at any one location, or between 50 and 500 people if the layoffs equal at least 1/3 of your workforce at that location, the Feds want to know about it.

There are a million rules governing this basic idea – close geographic locations can be combined, temporary employees or locations don’t count, reductions in hours short of layoffs do count sometimes, the list goes on and on.

Illinois, like most states, has its own WARN law, as well, that extends the notification requirements to companies with fewer employees. The IL WARN Act requires employers with 75 or more employees to provide at least 60 days notice of pending plant closures or mass layoffs. But mass layoffs under IL WARN is half of the federal standard: either 250 employees or 25 or more, if the layoff equals 1/3 of the workforce.

What Happens if I Don’t Give the Notice?

Penalties. Big ones, too.

Failure to provide notice of a mass layoff can result in liability against every effected employee, equal to up to 60-days’ backpay and benefits, as well as fines of up to $500/day. Also, the laws allow employees who win at court to recover their attorney’s fees.

You can make voluntary payments to employees (e.g. – severance packages) to offset these penalties, but neither law recognizes pay in lieu of notice. So you can’t “make your workers whole” outside the rules of the Act, and avoid liability.

The Takeaway

The typical story when it comes to WARN is the big-bad-employer deliberately hiding bad financials and siphoning money away from paying its workers in its final days. I’m not saying this doesn’t happen sometimes, but far more often, it’s employers that mean to do the best they can by their employees, but don’t know how to navigate the law, or don’t even know it applies to them.

The regulations surrounding both state and federal WARN laws are tough to wrap your head around. There’s a lot of “if-then” factors involved here that can get even smaller employers in trouble. While we will get into some of these specifics later, I wanted to keep this post general to support the following suggestion: If you are considering laying off a significant part of your workforce, and you have upwards of 50 people working for you during the year, run the plan by your employment attorney. The smaller you are, the easier (and more cost-effective) it will be to assess any liability, but when you are facing a large-scale RIF, the piece of mind is worth it.

Along with Board Chairman Wilma Liebman, Solomon has been on something of a defense tour the past few months, ever since the House Education & Workforce Committee held hearings on “Emerging Trends at the National Labor Relations Board” back in February – a title that sounds much more innocuous than it actually was. The purpose of the hearings was to show how activism and labor-friendly policies had overtaken the neutrality the NLRB was supposed to exude, and how the “Obama Board” was fundamentally changing the NLRB into a government-sponsored tool of Big Labor. Solomon and Liebman both issued statements to the Committee which made, essentially, two points: (1) We inhereted most of the problems we’re being accused of pushing through; and (2) this is how the NLRB works, and nothing about what we’re doing is all that crazy.

After seeing Solomon speak, and respond to questions from that disparate audience, I think I can safely say that the truth is, of course, somewhere in the middle. Below is sort of a “quick hits” version  of Solomon’s comments on some of the hot-button issues at the NLRB at present.

Boeing

If you haven’t heard, the NLRB recently filed a Complaint against Boeing for locating a second production line for its 787 Dreamliner in a non-union facility in South Carolina instead of the Puget Sound locale that comes with the baggage of the Machinists & Aeorspace Workers. The GC’s office got a lot of blowback from South Carolina politicos and from manufacturing groups, who said the filing was politically motivated, pushed by the Machinists, and an unprecedented step to extend labor protection to economic business decisions before they affect any unionized employees. Solomon issued a response that basically said Let’s not talk about this thing in public, huh? I’m trying to settle this behemoth. Crazy, said Shopfloor, since the NLRB has PR’d the hell out of this investigation.

Imagine my surprise, then, when I walked into the discussion and Solomon seemed to be taking questions head-on, right out the gate. Then I listened to him, and realized beginning with Boeing was a strategic move. Get it out of the way and by the end people will forget that you didn’t really say anything. Solomon’s response to the Boeing complaint was basically (and get ready for the big theme, here): “It’s no big deal. This complaint is exactly like any claim by the GC that an employer replaced union workers with nonunion workers.” Maybe he said something more on Boeing in the minute and a half before I walked in, but I’m going to guess you can get a sense of his comments from his press release.

Facebook Cases

In case you don’t get NLRB press releases, the GC’s office made some news last year when it went after an employer for firing an employee for “concerted activity” – posting disparaging comments about her boss on her Facebook wall. The GC is actively targeting what it considers to be grossly overbroad social media policies that prohibit employees’ ability to use facebook and other internet sites to discuss their employment. The Board considers these policies as per se violations of employee’s right to concerted activity. While the newsworthy Facebook case last year settled, Solomon said that it garnered enough buzz that every Regional Office now had social media cases working their way through the system. He confirmed that this is a major focus of his office.

Two notable things he said on the Facebook front: (1) We should expect to see a series of GC Memos on social media policies and the NLRA; and (2) a disclaimer in your social media policy that said ”nothing in this policy is intended to interfere with any employee’s Section 7 rights” may work to avoid liability - but it would have to specifically reference Section 7 of the NLRA.  

10(j)’s, Default Language & Deferrals after the jump.

 10(j) Injunctions

One of the major things Solomon has been accused of since taking over the role of Acting GC is significantly increasing the number of 10(j) petitions for temporary restraining orders and other injunctive relief in Board cases. Solomon said that he’s always seen the slow process at the NLRB as a problem for retaliatory discharge cases; some time ago, he noted, a study showed that it would typically take a year or more for the Board to order a person reinstated to their jobs after being fired for promoting unionization, and by that time, usually, both the employee and the union had moved on.

So Solomon made discharge cases a priority. Under his oversight, case processessing has dropped to 64 days, and they have accumulated 71 offers of reinstatement and hundreds of thousands of dollars in backpay settlements. But Solomon urged that the GC’s office was not becoming a “10(j) Factory” (his words). He noted that 10(j) petitions were only a small percentage of the overal cases filed by his office, and that investigation into discharge cases has uncovered that 2/3 of them are meritless, which Solomon pointed out was right on average with the rest of the claims presented to the Board.

One thing Solomon said seemed sort-of disingenuous to me, though. After going through the problems of these poor employees having to wait and wait to find out if they could be reinstated, Solomon defended the increase in petitions by noting that the GC’s office doesn’t immediately pursue injunctions in discharge cases. Where it’s clear the union has already abandoned its campaign, he said, the GC’s office will not immediately ask for an injunction. I’m not sure how that matches his previously-stated concern for the employee who is still left waiting to hear about his or her lost job.

Default Language in Settlement Agreements

This was another push from the GC’s office that was brought up at the House hearings back in February. Some regional offices have been using boilerplate language in every employer settlement agreement that, if the employer defaults, the GC’s office will file or refile the Complaint, and the employer waives any right to answer or contest the charges. In January, the GC’s office issued a memo that such language should be used across the board, in all offices. Employers are obviously concerned, since whether or not you breach a settlement agreement is a pretty amorphous concept a lot of times.

Solomon said, first of all, that he inhereted this initiative from his predecessor, who was of course appointed by the President’s predecessor. It was clear he was a little taken aback by how these initiatives were being used to call him out for being a liberal tool of the unions when they’d been begun by one of the most conservative GC’s in the history of the Board. Aside from that, Solomon argued that without the language, the GC’s settlement agreements had no enforceable arm. “Settlement agreements should have a little weight behind them,” he said. Plus, the Regional Directors were well within their right to play with the boilerplate in circumstances where other language was more appropriate. So it’s all negotiable. No worries.

So, employers, when the local NLRB office presents the boilerplate language in a settlement agreement, just remind your Regional Director that Lafe Solomon said if you asked real nice, they’d take it out for you.

Deferral to Arbitration

This issue – of changing the way claims are deferred to arbitrators under CBA grievance procedures – is another one Solomon pointed out he inhereted from his predecessor. Typically, if the parties agreed to have an arbitrator hear an 8(a)(1) or 8(a)(3) violation, the Board would defer to the arbitrator, but would maintain reviewability.

A Supreme Court decision, interpreted through the lens of some recent DC Circuit cases, however, changed the game on deferral. Under the DC Circuit cases, if the Board defers to an arbitrator, it forfeits any jurisdiction it had over the issue, and cannot review or investigate the claim later on. This, in the Board’s view, required a reworking of the deferral procedure.

Solomon said that, from now on, the following rules will be followed for deferral requests:

1. The Board will not defer unless the issue has already been presented and decided by the arbitrator.

2. Even if you get an arb decision and request deferral, the Board can refuse if the issue is repugnant to the Board’s policy or mission.

3. The claiming party’s case will be investigated prior to the deferral decision to make sure the Board would not throw it out anyway.

4. For existing cases that have been deferred, if the issue has not yet been presented to the arbitrator, the Board can take back jurisdiction of the issue.

Solomon said that these rules will ensure that deferral does not end up removing a case that presents novel or important issues the Board should be considering, and “better clarifies” the NLRB’s view of how it retains jurisdiction in deferral cases. When someone in the audience pointed out that the rules don’t seem to address the DC Circuit’s reasons for why the Board loses jurisdiction, Solomon admitted that the goal here was to better present the next case that gets challenged, in hopes that the DC Circuit will more clearly understand the issues and reverse it’s prior rulings.

As far as 8(a)(5) cases go, Solomon readily admitted he could give no straight answer on the deferral issues they present.