Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

Chairman Liebman's third term expired at midnight on August 27, 2011.  Her departure brings the NLRB down to three members:  Pearce (D), Becker (D), and Hayes (R).  As Chairman Liebman departed, Member Pearce was designated the new Chairman of the NLRB.  The press release from the NLRB notes that Chairman Liebman was the third longest serving member of the NLRB in the agency's 73 year history.

In a flurry of activity at the end of her term, the NLRB published a new rule requiring that employers post a notice of employee rights under the NLRA, issued a decision reversing a 20-year old precedent on bargaining units in non-acute health care settings (like nursing homes), and overturned two decisions from the 2000s (issued by the NLRB appointed by President Bush).  One of the overturned decisions permitted employees the opportunity to vote in a NLRB-conducted, secret ballot election after an employer voluntarily recognized a union, for example through a card check procedure.  Chairman Liebman was in the majority on each of these decisions.  Watch this blog for further summaries of each of these decisions, made public today.

For her part, Chairman Liebman gave an interview to the New York Times last week.  According to the Times article, in the interview she defended the NLRB from attacks by critics, saying, among other things:  "The perception of this agency as doing radical things is mystifying to me."  She described the rhetoric about the NLRB as "overheated."

For labor professionals, the most significant part of this development is that it brings the NLRB to just three members.  Member Becker's recess appointment will expire near the end of 2011.  If President Obama is unable to name another recess appointment, and the Senate declines to act on any then-pending nominations, the NLRB will drop to just two members before 2012 begins.  The Supreme Court held just over 14 months ago that the NLRB may not issue decisions with just two members. Recognizing the potential procedural obstacle to further NLRB decision-making, some are already calling on Member Hayes (R) to resign in order to hasten the arrival of a two-member NLRB.

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Today, the NRLB officially published a Final Rule that requires private-sector employers, both union and non-union, to post a notice in their workplaces notifying employees of their rights under the NLRA. Pursuant to the new rule, employers subject to the NLRA must “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information containing basic enforcement procedures . . . .” 

The notice (pages 185-190 of the Final Rule (pdf)) contains a list of employee rights under the NLRA.  A few examples of the rights that are listed include:

• The right to act together to improve wages and working conditions;
• The right to discuss wages and benefits and other terms and conditions of employment with other employees;
• The right to form, join and assist a union;
• The right to bargain collectively and to discuss conditions of employment and union organizing with a union and with coworkers;
• The right to strike and picket, depending on the purpose or means; and
• The right to choose not to do any of these activities. 

The notice also provides examples of unlawful conduct under the NLRA and tells employees how to contact the NLRB with questions or complaints.

Like other workplace notices, the employee rights notice must be posted in a conspicuous location where it will be readily seen by employees. If an employer customarily posts notices to employees concerning personnel rules or policies on an internet or intranet site, then the employer must also post the notice electronically. However, employers are not required to distribute the notice via email, voice mail, text messaging or other related electronic communications, even if they customarily communicate with their employees in that manner. 

If 20% or more of the workforce is not proficient in English, and speaks a language other than English, the notice must be posted in the language the employees speak.  The NLRB will provide translated versions of the notice.

Employers must post the notice by November 14, 2011.  According to the Final Rule, failure to post the notice may result in the following consequences:

• An unfair labor practice under the NLRA;
• An extension of the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer; and
• Use of the fact of non-posting as evidence of unlawful motive in an unfair labor practice charge involving other alleged violations of the NLRA, provided that the employer “knowingly and willfully” failed to post the notice. 

For labor professionals, the NLRB's rule is another compliance issue that will need to be addressed and monitored.  The NLRB has announced that it will have copies of the notice available for no cost beginning on November 1.  Employers may also download copies of the notice from the NLRB's website.  Small businesses may or may not be subject to this requirement and should consult a labor attorney on that question, as should any other employer with questions about the NLRB's action.

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This morning, the NLRB announced that it would publish its final rule requiring employers to post a notice of employee rights under the NLRA.  The notice posting is a new requirement.  Employers currently have no obligation to post such a notice.

The final rule will be published in the Federal Register tomorrow.  It will take effect 75 days later.  This action comes on the eve of the expiration of Chairman Liebman's term.  Her term expires on August 27, 2011.

As readers of this blog know, the NLRB published the proposed rule last December.  Additional detail on the final rule will be available at vorysonlabor.com soon.

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Now that social media is more or less ubiquitious, labor professionals must be keenly aware of the complex issues that spring from the intersection of employee relations and social media. As readers of this blog know, this is an area of the law that has gained a significant amount of attention over the last few months. As a nod to this development, and to summarize the dozen or so cases where the Acting General Counsel (AGC) has confronted social media issues, the AGC issued a report last Thursday to summarize the positions the AGC has taken.

The report (pdf) describes the facts of cases where the AGC has issued a complaint against an employer for an alleged violation of the NLRA. The report also describes cases where the AGC declined to issue a complaint. The conduct that has been the target of the AGC's enforcement attention includes both employment actions against employees (terminations, for example) who have posted certain content on a social media platform as well as the employer's policy language that regulates such employee conduct.

The report is quite lengthy, running in excess of 20 single-spaced pages.  For labor professionals with the time, and a particular interest in this area of the law, reading the report may well be worth the investment. For everyone else, some of the employer conduct the AGC found to violate the law is summarized below:

·         Terminating an employee who, among other things, referred to the owner of the company as “such an asshole.”

·         Threatening to sue that same employee.

·         Terminating an employee who, among other things, called her supervisor a “scumbag.”

·         Terminating an employee for posting pictures of, and sarcastic comments about, the food and drink served by a luxury car dealership during the introduction of a new car model.

·         Maintaining a policy that prohibited “rude and discourteous behavior.”

·         Prohibiting “inappropriate discussions” between employees about the employer.

·         Prohibiting employees from using the employer’s name, address, and other information in their personal profiles in social media sites.

On the other hand, some examples of employer conduct the AGC found not to violate the NLRA included:

·         Terminating a bartender who posted a comment on Facebook about the employer’s tipping policy in response to an inquiry from a nonemployee. This employee also referred to customers as “rednecks” and indicated he hoped they choke on glass as they drove home drunk.

·         Terminating an employee of a medical transportation company for posting comments on her U.S. Senator’s Facebook “wall” that disparaged the services her employer provided and disclosing information about a particular medical call to which the employer had responded.

·         Disciplining a retail store employee who complained about “tyranny” from his store management, used a derogatory term to describe his assistant manager, and complained about being “chewed out” for mispriced or misplaced merchandise.

·         Maintaining a policy that prohibited employees from pressuring their coworkers to “friend” or otherwise connect with them via social media.

Labor relations professionals should keep the following points in mind in light of the AGC’s report:

·         First, remember that the AGC is responsible for enforcing the statute. The report summarizes conduct that the AGC believes violates the law. Not until the complaints make their way to the NLRB, however, will we know whether the NLRB will agree that there is a legal violation.

·         Second, whether a violation exists is a very fact intensive question. Each employment action and each policy must be examined in context. The difference between legal and illegal employer conduct in this area can be difficult to identify.

·         Third, what an employer’s policy says and how it could be read by a reasonable employee is critical. Care should be taken when drafting employment policies to avoid overly broad or ambiguous words and phrases.

·         Finally, all of the AGC’s actions here rest upon the well-established right of employees to engage in protected, concerted activity. As the social media cases demonstrate, this rule can impact employee relations issues when an employer least expects it.

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The referendum that will determine the fate of Senate Bill 5 has taken its official form.  Last Thursday, Secretary of State John Husted (R) announced that it will be Issue 2 in the general election this November.  The ballot language approved by Husted and the Ohio Ballot Board describes Senate Bill 5 as "a new law relative to government union contracts and other government employment contracts and policies."

The decision also resolves another question that had arisen regarding the significance of a "yes" or a "no" vote.  According to newspaper reports, one group supporting Senate Bill 5 was attempting to obtain the "no" spot on the ballot, such that a "no" vote would mean that the law would be allowed to take effect.  The ballot language approved last Thursday, however, clearly states that a "yes" vote means the voter approves the law -- allowing it to take effect -- and a "no" vote means the voter rejects the law.

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