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

The NLRB headed into a public vote today over a proposed rule on election procedures summarized yesterday on this blog.  It did so without assurances that one of its members, Brian Hayes (R), would be present. While tensions were high, Member Hayes did attend the meeting and the NLRB voted along party lines, 2-1, to move forward with the slimmed down, but still controversial, election rule proposal. As the lone dissent, Member Hayes again made it clear that he opposed the short time frame for elections under the proposal. Despite that opposition, the final language of the rule will now be drafted for another NLRB vote before it goes into effect. 

Although there was information suggesting that Member Hayes was seriously considering resigning in an effort to eliminate the NLRB’s power to move forward on the proposal, he has apparently decided against resignation. Member Hayes explained at the meeting that “it is not my nature to be obstructionist.” Further, he believed that “resignation would cause the very same harm and collateral damage to the reputation of this agency” as the rule changes the majority voted to advance.

With Hayes staying put, labor professionals should stay alert for the final language of the rule, as it is certain to have a impact on employer policies.  Nor should labor professionals expect any legislative change from Congress that would trump the administrative rule.  Although the U.S. House voted today to approve legislation that would do so, the prospects of that legislation appear dim in the Senate.

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As reported on this blog last week, the NLRB will meet tomorrow to consider a resolution on the rule it proposed in June 2011.  Today, Chairman Pearce (D) made public the resolution (pdf) that will be voted on at tomorrow's meeting.  In doing so, the Chairman has disclosed what was left unanswered in the announcement of the meeting last week:  what will the final rulemaking contain?  According to the resolution, and the NLRB's accompanying explanation, the resolution would commit the NLRB to moving forward on six changes to the NLRB's rules:

• Limiting evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
• Eliminating the automatic right to file briefs with the regional director after the initial hearing;
• Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
• Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
• Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
• Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

These six changes are in line with the NLRB majority's desire to "streamline" the NLRB's election petition process. The result is to speed up the time between the filing of an election petition and the holding of a secret ballot election. This has caused many to refer to the rulemaking as the NLRB's "quickie election" rule.

As the effort to finalize these regulations moved forward, Member Hayes (R) wrote a letter to Congressman John Kline, Chairman of the U.S. House Committee on Education and the Workforce, in response to a request by Kline for information from the NLRB. Hayes was critical of the rulemaking process in this letter. When Hayes' letter became public, the Chairman responded with a scathing letter to Hayes, rebutting the statements contained in Hayes' letter. A good summary of these unusual letters can be found here.

The originally proposed rule contained a number of additional changes that the NLRB has apparently decided it will not pursue at this time.  For example, the NLRB's resolution does not address the original proposal to:

• Require a position statement before the initial hearing summarizing all of the parties' issues;
• Require that the initial hearing be held within seven days of the date the petition is filed;
• Require that the eligible voter list be produced within two days, rather than the seven currently required; and
• Require that the eligible voter list contain employee e-mails and phone numbers, in addition to addresses.

It appears that the NLRB will, however, continue to deliberate over the other portions of the proposed rule.  This leaves open the possibility that the other changes proposed in June could yet find their way into the NLRB's regulations. 

For the labor professional, the NLRB's resolution reveals the agency's desire to get at least some final rule published prior to the end of the year.  Indeed, the NLRB's explanation specifically references the "possibility that the Board will lose a quorum at the end of the current congressional session. . . ."  By slimming down the proposal, the NLRB can move the proposal to a final rule more quickly while still leaving on the table the other changes proposed. 

There is a wild card still in play that is important to note.  The Hayes/Pearce letters reveal that Hayes has threatened to resign.  If he did so, it would take the NLRB down to only two members.  This would likely deprive the NLRB of the necessary quorum to adopt the final rules.

Finally, the NLRB's announcements today do not reveal the actual language of the amendments.  They simply summarize which portions of the regulations will be changed.  Thus, the full impact of the proposed changes is difficult to assess.  It is clear, however, that for those on the management side, the changes will not be welcome.

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The NLRB announced yesterday that it will hold a public meeting on November 30, 2011.  At the meeting, the three remaining NLRB members will discuss and vote on the so-called "quickie election" rule that the NLRB proposed in June 2011.  As previously discussed on this blog, the changes in the proposed rule range from permitting electronic filing of certain documents (hardly the most controversial measure in the proposal) to limitations on a party's right to litigate certain voter eligibility and other issues at the outset of the representation election process.  

According to the NLRB's announcement, Chairman Pearce will propose issuing a final rule that is limited to "several provisions designed to reduce unnecessary litigation."  Which specific provisions in the proposed rule those might be are unclear from the announcement. The limitations on so-called "unnecessary" litigation, however, are the more controversial proposals in the rule.

The NLRB's action comes the day after the U.S. House of Representatives took action to move a bill designed to forestall parts of the proposed rule to the full House for a vote.  H.R. 3094 (pdf), entitled the "Workforce Democracy and Fairness Act," cleared the House Rules Committee on November 17.  That bill would amend the NLRA to provide, among other things, that there must be a minimum of 35 days between the filing of an election petition and the holding of an election.

Although the NLRB's announcement does not reference H.R. 3094, it does acknowledge the possible loss of the NLRB's third member at the end of the year.  If the NLRB drops to two members (Member Becker's recess appointment expires at the end of this year), it will be unable to issue decisions or new regulations, as the Supreme Court ruled in 2010.

Labor professionals wishing to attend the NLRB's meeting must contact the agency via e-mail.  Those attending, however, will not be permitted to participate.  The hearing will also be webcast.  Additional information about the NLRB's action can be found in its announcement.

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By Nelson Cary and Ashley Manfull

Recent actions by the NLRB’s Acting General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. The fear, based on these prior actions, is that disciplinary action will result in an unfair labor practice charge for interference with protected concerted activity. However, in its most recent Advice Memorandum (pdf), the NLRB’s Office of the General Counsel (Office) has affirmed that employee social media postings are not automatically protected by Section 7 of the NLRA and may be grounds for termination in appropriate circumstances.

In the Memorandum, the Office opined that an employer did not engage in an unfair labor practice by dismissing an employee who named his employer on his LinkedIn profile and used a vulgar, derogatory term for his job title.  The former employee claimed that the fake job title was only meant as a joke and had been on his LinkedIn page for over a year before his discharge. The employee alleged that the true reason for his termination was his recent discussions with coworkers regarding a successful employee wage and hour lawsuit at another company and whether the employer’s similar overtime policy may be unlawful. 

The Office determined that even though the discharge occurred in close proximity to the former employee’s protected discussions with his coworkers, there was no link between those discussions and his termination. Rather, the employer had only recently discovered the offensive LinkedIn posting when it reviewed employee posts as part of an assessment of problems with its own LinkedIn page. Upon observing his LinkedIn profile, the employer discharged the employee based on its communications usage policy, prohibiting obscene, defamatory, harassing and/or abusive language regarding the employer.

While the Office commented that the employer’s policy may be overbroad by including the word “harassing,” which could reasonably be construed to preclude protected conduct, it found no violation. The Office reasoned that the former employee’s comment on LinkedIn clearly was not protected activity. The “fake” job title was offensive on its face and had nothing to do with the former employee’s verbal conversations with coworkers regarding the company’s overtime policies.

It is important to note that the Memorandum is not a decision by the NLRB. Rather, it is an administrative pronouncement by the division of the NLRB responsible for deciding whether a violation occurred and, if so, initiating enforcement proceedings. Thus, until the NLRB rules on these issues, the law will continue to evolve. 

Labor professionals are well-advised to review employee disciplinary events arising from social media postings on a case-by-case basis. The Memorandum makes clear that all such postings are not automatically protected under Section 7.  It does, however, demonstrate the need to consult with qualified labor counsel when confronted with questions of protected concerted conduct.

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Ohio voters defeated Issue 2 yesterday by a vote of 61% to 39%.  If passed, Issue 2 would have permitted Senate Bill 5 to take effect.  According to one report, the ballot question saw the union "vote no" campaign spend heavily to achieve victory, to the tune of $24 million.

While the political fallout of the result will be debated for some time, and has already begun, the implications for the labor professional are considerably more clear.  The failure of Issue 2 means that current law continues in effect, including the dispute resolution mechanisms like fact-finding and binding conciliation for safety-related employees.  The only thing to monitor now is whether proponents of Senate Bill 5 will attempt to pass the pieces of it that received favorable polling response, such as the requirement to pay at least 15% of the cost of health insurance coverage, merit pay, and pension "pickups."

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