NLRB & Social Media

As a labor and employment mediator and arbitrator, I have been alternatingly intrigued and concerned about recent NLRB guidelines and ALJ rulings concerning use of and limitations on the use of social media.  See, e.g., Aug. 18, 2011 NLRB Office of General Counsel Report

Survey of NLRB Shifts Analyzed and Found Wanting

In 2010, I wrote about a survey of changes to NLRB precedent, written by G. Roger King and publishes in the Fall 2010 issue of the ABA Journal of Labor and Employment law. Mr. King's analysis revealed that over a comparable course of years (5-7), the Clinton Board reversed 1,181 years of prior precedent while the Bush II Board issued reversed only 295 years of precedent.  Additionally, King noted that "the federal circuit court affirmance rate of the Bush II Board decisions was either equal to or greater than the circuit court affirmance rate of the Clinton Board."  Specifically, Clinton decisions were enforced in full 66.8% of the time, and in part 81.5% of the time.  In contrast, Bush II decisions were enforced in full 77.9% of the time and in part 87.9% of the time.   

In the Vol. 26, No. 3 of the Journal, Associate General Counsel of the AFL-CIO, Bill Lurye, reviews King's data and the decisions, and concludes they were "prove[d] susceptible to interpretation and vulnerable to manipulation."  Lurye also advises that "a mathematical

Employer Polling -- Criteria and Standards

As a neutral third party familiar with collective bargaining matters and representation election procedures, I am periodically contracted to conduct employer pollings, to ascertain whether or not a majority of its employees continue to desire union representation. The first time I was asked to conduct a polling, I was obligated as a neutral to satisfy myself that polling is not illegal or otherwise improper in New Mexico as a general matter.  As is common, there was no New Mexico case law on point.  However, the federal courts and the National Labor Relations Board (NLRB) have reviewed the matter in a number of cases, and I will outline the results of my research here.  

Happy Belated Birthday, NLRB

Collective bargaining has been increasingly in the news in the last year, and has even made its way back into popular consciousness.  As I've written elsewhere, a number of states are trying to put limitations on public sector collective bargaining, in response to budgetary difficulties  Additionally, there has been a renewed push to pass the federal Employee Free Choice Act, which would permit certification without a secret ballot election over the employer's objection, among other things, and the NLRB has taken several controversial actions of late that have been reported widely.  They have proposed new rules to expedite elections and to require the posting of notice of labor rights, and also filed a charge against Boeing for its attempt to open a plant in right-to-work state South Carolina (the latter issue has now been settled).  

Despite this present heightened public awareness of collective bargaining issues, however, many people do not know that 2010 marked the National Labor Relations Act's (NLRA) 75th anniversary.  In honor of this significant milestone, the National Labor Relations Board (NLRB) and George Washington University had co-sponsored a seminar in October 2010 on the Act and "Its Legacy and Its Future," to which the Winter 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 26, No. 2, was largely dedicated. 

In light of this milestone, and the level of popular attention garnered to collective bargaining in the last year or so, it seems to me it is a good time to review what collective bargaining scholars, professionals and advocates have to say about the Act.  

Big News: NLRA Preempts State Law Claims of Termination for Union Activity

In a recent New Mexico case, the Court of Appeals held--not surprisingly to regular labor practitioners--that federal labor law preempts state law claims based on an allegation that a supervisory employee was improperly terminated from employment due to employer's suspicion that the employee was engaged in union-organizing activities. Humphries v. Pay and Save, Inc., 2011-NMCA-035, cert. not applied for.  To the labor practitioner, it is only surprising that the state law claims were pursued at all.

"FedEx III" and Independent Contractors

A crucial issue in labor and employment law is often whether a person is an "employee" or "independent contractor," because this will determine whether or not the worker is entitled to various protections.  In the Fall 2010 issue of the ABA Journal of Labor and Employment Law, Jeffrey E. Dilger analyzes the .D.C. Circuit's 2009 decision, FedEx Home Delivery v. NLRB, 563 F.3d 492 ("FedEx III"), concluding that it will dramatically reshape independent contractor jurisprudence.

Statistical Survey of Changes to NLRA Precedent

In the Fall 2010 issue of the ABA Journal of Labor and Employment Law, G. Roger King provides a very provocative statistical survey comparing the rate of reversals of NLRA precedent under the Clinton and G.W. Bush Federal Labor Relations Boards, and concludes the Clinton Board --not the Bush Board-- was the more activist.