A new Report issued by Acting NLRB General Counsel (GC) Lafe Solomon responds to a number of practice and procedural questions related to Board operations posed by labor attorneys during a recent American Bar Association Midwinter Meeting. The report answers questions related to unfair labor practice charges, Board rulemaking, employer social media policies, and representation election procedures, among other topics. Highlights of the report are as follows:
Social Media and Handbook/Policy Cases
According to Solomon, there are no immediate plans for the Board to issue another report governing social media, at-will employment, confidentiality, or other employer rules/policies. The Board also does not have any plans to develop regulations regarding social media policies.
With respect to the class action arbitration waiver invalidation issue presented in D.R. Horton, Inc., the Report notes that there are 29 pending cases that raise D.R. Horton issues.
Section 10(j) Injunctions
Among other 10(j) injunction statistics of note, twelve 10(j) petitions were challenged on the grounds that the Board’s authorization to issue such injunctions was invalid for lack of a proper quorum. As the U.S. Court of Appeals for the D.C. Circuit recently held in Noel Canning v. NLRB, the three Board recess appointments were unconstitutional.
The Report responded to a number of questions regarding electronic voting, mail ballots, off-site elections, and the revised representation election rules that have been put on hold. Of note, the Report states that there are currently no additional developments to encourage electronic voting. The Report discusses also the stalled expedited election rule and the status of the Board’s appeal of a federal court finding that the rule was invalid because the Board lacked a quorum when it was issued in December 2011. The document explains that as a result of the Noel Canning decision, the D.C. Circuit has decided to hold all matters in which former Member Craig Becker participated in abeyance. The Report claims that in the interim, “the Board is continuing to work on the aspects of the proposed changes to representation-case procedures that were not disposed of in the December 2011 final rule. It is anticipated that any further amendments will be promulgated in the form of a final rule, but no final decision has been made at this time.”
Bargaining Unit Determinations
The Report highlights a number of cases that have applied the standards set forth in Specialty Healthcare, in which the Board reversed past precedent and adopted a new standard for determining appropriate bargaining units.
Several participants asked questions regarding the implementation of the Board’s deferral policy set forth in Memorandum GC 11-05 and Memorandum GC 12-01. According to Solomon, there are 1,682 cases currently in deferral status. Solomon discussed several issues related to the deferral process, how it is applied to grievance settlements, and the impact of the Board’s deferral policy on post-arbitration deferral cases.
The GC’s Report provides a table showing the use of investigative subpoenas issued during FY 2012. Of the 666 cases in which investigation subpoenas were issued, merit determinations were made in roughly half (317) of them.
In GC Memorandum 11-04 (issued January 12, 2011), the Acting GC provided guidance on the default language that should be incorporated in informal settlement agreements. The Report discusses a number of cases in which administrative law judges have accepted settlement absent the default language over the GC’s objections; circumstances when the default language is modified; and cases in which an NLRB region claimed that the default language was breached.
The Report discusses a number of administrative matters as well, including litigation statistics.