Hunton Employment & Labor Perspectives

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB.  A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the appointments.  In Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC, a case in which the NLRB is seeking a federal court injunction to declare an end to an employer lockout, the Defendant is contesting the action on the grounds that because three of the Board’s five members have not been validly appointed, the Board has no authority to act.

On January 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released its enforcement and litigation statistics for FY 2011.  The statistics show that the EEOC received a record 99,947 charges of discrimination and that, despite a record number of charges, the EEOC processed and resolved more charges than were filed, resolving 112,499 charges during FY 2011.  On the monetary damages front, the EEOC obtained $455.6 million in relief through EEOC mediation and litigation efforts, which represents $51 million increase from the previous fiscal year.

Last month, the Eleventh Circuit issued an important ruling in favor of an employee who is accusing his employer and UNITE HERE of violating the Labor Management Relations Act ("LMRA") by entering into an organizing rights agreement that includes employer neutrality and employee access features.  In Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir. January 18, 2012), the Court reversed a lower court decision dismissing Mulhall's lawsuit.  That court had held that Section 302 of the LMRA, which forbids employers from "pay[ing], lend[ing] or deliver[ing]" money or any other "thing of value" to a labor organization, could not be construed to outlaw voluntary agreements between employers and unions that set conditions for union organizing campaigns.

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.