NLRB Controversies and Other Hot Topics Covered at AGC’s 29th Annual Construction Labor Law Symposium

May 3, 2013
The AGC Labor and Employment Law Council held its 29th Annual Construction Labor Law Symposium on April 18 and 19 in Washington, D.C.  Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law.  Recent activities by and involving the National Labor Relations Board (NLRB or Board) were a major topic of discussion at the symposium.  Guest speaker Brian Hayes, now a partner in the law firm Ogletree Deakins, spoke of the NLRB’s controversial decisions and rulemaking during his term as a Board member.  Hayes served on the Board from June 2010 to December 2012, often as the sole Republican of the five-member Board.  He described the Board as engaging in a “semantic witch hunt” when deciding cases addressing employers’ personnel policies – parsing the policies to find words that could somehow be interpreted by some hypothetical employee in a way that infringes on employee rights under the National Labor Relations Act.  The Board’s stretching and twisting of language in such policies to try to find a problem is not an efficient use of government resources, he said. Council member Jeff Wray of Fulbright & Jaworski told a similar tale of recent Board decisions.  He reviewed several significant decisions in which the Board has expanded its interpretation of employee rights, including cases involving employer policies on confidentiality, workplace investigations, social media, “at-will” employment, off-duty access, and mandatory arbitration.  He offered practical advice in the wake of these decisions, including consulting recent NLRB Division of Advice Memoranda before drafting any such policies.  AGC members can access Wray’s handout in AGC’s online Labor and HR Topical Resources library under the category “Unions/NLRA” and subcategory “Protected Concerted Activity.”   Guest speaker Lafe Solomon, the NLRB’s acting general counsel, offered a different perspective.  He provided information and thoughts on the impact of the Noel Canning case.  The D.C. Circuit in that case recently held that three “recess appointments” to the Board made by Pres. Obama in January 2012 were invalid, calling into question the validity of all decisions issued by the Board since then and perhaps since as early as August 2011.  Solomon noted that about 90 percent of cases at the NLRB are still settling as usual, suggesting that many respondents are choosing to settle now rather than wait for appointment of a new Board which, two years down the road, might well reach the same conclusion that the current Board would reach today.  He said that he is hoping for a political solution to the Board appointments controversy, as a judicial solution could take a long time.  The NLRB on April 25 petitioned the Supreme Court to review the case.  The next step is a response by the respondent and a decision by the Court as to whether it will take on the case.  If the Court grants the petition for review, it is unlikely to issue a decision on the merits until sometime next year. Other topics covered at the symposium are listed below.  Handouts from presentations on those topics are found in the Labor & HR Topical Resources library in the areas indicated in parentheses.
  • Primer on Strikes and Picketing (main category “Unions/NLRA,” subcategory “Picketing & Reserved Gates”);
  • Update on 8(f)-to-9(a) Conversion (main category “Collective Bargaining,” subcategory “Collective Bargaining Agreements:  8(f) vs. 9(a)”);
  • State of the Law on Settlements…and Tips to Make Them Stick (main category “Other Legal Issues,” subcategory “Employment Law [General]”);
  • Current Labor Arbitration Issues Affecting Construction Employers (main category “Other Legal Issues,” subcategory “Employment Law [General]”);
  • Current Issues Under the Americans with Disabilities Act Affecting Construction Employers (main category “EEO,” subcategory “Americans with Disabilities Act”).
Along with Solomon and Hayes, guest speakers also included Peggy Mastroianni, Legal Counsel with the Equal Employment Opportunity Commission, and Randy Johnson, Senior Vice President for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce. The AGC Labor and Employment Law Council is a special network of labor lawyers who represent AGC members and Chapters.  The Council provides its annual symposium and other activities to facilitate the sharing of information and the best possible representation of AGC affiliates.  To ensure that your in-house and outside labor and employment lawyers stay on the cutting edge, make sure that they are members of the Council. To view a list of current Council members, click here.  For information about Council membership, click here or contact Denise Gold at or (703) 837-5326. 
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