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

By Nelson Cary and Ashley Manfull

Recognizing that the increased use of social media by employees commenting on work-related matters has led to many complex issues for employers, the Acting General Counsel (AGC) issued its first report in August 2011 summarizing cases involving social media issues. As the complexities of this issue are far from resolved, the AGC has now issued a second report summarizing 14 new social media cases that the AGC has considered.

The AGC’s second report (pdf), issued on January 24, 2012, focuses significant attention on (1) whether an employee’s use of social media to comment on various work-related issues constitutes concerted protected activity; and (2) whether employer policies seeking to impose limitations on an employee’s ability to comment on work-related issues are overly broad or could reasonably be interpreted to prohibit comment on Section 7 protected speech.

The 35-page report may be well worth the read for labor professionals struggling to understand the extent to which employee comments in a public forum can be regulated and/or subject to disciplinary action. For those with less time or interest, however, some of the more noteworthy highlights in the report are summarized below.

Of the 14 cases briefed in the AGC’s report, seven of them address whether employer policies limiting employee communications are overly broad. In five of the seven cases, the AGC determined that the following policy language was overly broad and thus unlawful: 

·         Employer rule prohibiting “making disparaging comments about the company through any media, including online blogs”;

·         Employer rule that employee discussion of terms and conditions must be in an “appropriate” manner, without defining “appropriate”;

·         Employer work rule prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation”; and

·         Employer policy prohibiting disclosure of confidential, sensitive or non-public information concerning the company without further definition. 

However, in two of the cases analyzed, employer social media policies withstood scrutiny where the employer’s rule specifically listed plainly egregious conduct that was prohibited (vulgar, obscene, threatening, intimidating, harassing, and/or unlawful discriminatory comments) and limited employee disclosure of confidential information to matters protected by federal law, like securities or health information laws.

Eleven of the 14 cases summarized by the AGC addressed whether an employee was properly terminated because of on-line forum posts. In five of the 11 cases, the AGC determined that the employee was discharged for engaging in protected concerted activity:

·         Employee initiated Facebook discussion because Employer transferred her to a less lucrative position, which included discussion of potential for class action lawsuit;

·         Employee posted comments on Facebook complaining about being reprimanded for her involvement in fellow employees' work-related problems;

·         Employee posted message on Facebook about the promotion of a coworker she believed to be unfair; post led to three responses from co-worker “friends” discussing the promotion and mismanagement concerns;

·         Employee engaged in Facebook conversation with other employees concerning negative attitude of Operations Manager and “drama” he caused at work; and

·         Employee made numerous on-line posts related to labor issues, unfair labor practice charges filed, and critical of employer’s management style, which elicited supportive responses from numerous employees.

On the other hand, in six of the 11 cases, the AGC found that the employee was not unlawfully terminated for engaging in the following types of conduct.  For example: 

·         Employee Facebook posts griping about her supervisor reprimanding her for failing to perform a task she was not instructed to perform;

·         Employee Facebook post complaining about her coworker’s job performance where it had a very limited connection to the terms and conditions of her employment;

·         Employee’s angry, profane comments on Facebook ranting against her coworkers that they blamed her for everything and she hated them.

·         Employee Facebook post that her coworker’s annoying habit was driving her nuts and she was “about to beat him with a ventilator.”

Labor relations professionals should continue to keep several points in mind when attempting to determine the landscape of social media cases in light of the AGC’s August 2011 and January 2012 reports: 

·         The AGC’s reports only summarize conduct that the AGC believes violates the law. Until the complaints make their way to the NLRB, it is unknown whether the NLRB will agree with the AGC’s conclusions;

·         Whether a violation of Section 7 exists is an extremely fact intensive question. Each employment action and policy must be examined on its own set of facts and circumstances; and

·         Employer policies regarding employee conduct and use of social media should be crafted from the perspective of what conduct a “reasonable” employee would understand as being limited. Policies restricting employee posts should avoid overly broad language, ambiguous words, and undefined terms.

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The NLRB published a final rule on the election process late last year.  In doing so, however, the final rule left out a number of changes to the election process that were originally proposed in June 2011.  For example, there were proposed changes to the requirements to provide lists of employee names and contact information after an election petition is filed, the timing of providing that list, and other issues.  As previously explained, the NLRB announced last month that it would keep these additional changes to the election rules under consideration for possible future action.

In an interview published by the Associated Press yesterday, NLRB Chairman Pearce (D) confirmed his intention to continue pushing forward with these additional regulatory proposals.  "We keep our eye on the prize," the AP quotes Chairman Pearce as saying. "Our goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayers."  Chairman Pearce announced his hope that the NLRB will propose the rules "soon," according to the AP.

For the labor professional, this most recent development confirms that there is likely more rulemaking yet to come on the so-called "ambush election" or "quickie election" rule.  This announcement does not, however, alter the currently announced effective date for the final rule published last month on the election process.  It is still scheduled to become effective on April 30, 2012.

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By Nelson Cary and Ben Shepler

New year, same controversial NLRB. In a decision that seems destined for appeal, the NLRB recently ruled that employers may not utilize individual arbitration agreements that prevent employees from joining in employment-related class or collective actions. The NLRB’s decision is notable because, among other things, it arguably conflicts with both the Federal Arbitration Act (FAA) and with a recent pro-arbitration decision issued by the United States Supreme Court.

In D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012) (pdf), the NLRB held that homebuilder D.R. Horton committed an unfair labor practice by requiring employees to sign a mandatory arbitration agreement that (1) forced employees to submit employment-related disputes to binding arbitration and (2) prohibited the arbitrator from considering these disputes as part of a class or collective action. This prohibition came under fire in 2008, when a former D.R. Horton employee attempted to initiate a collective action arbitration alleging violations of the Fair Labor Standards Act. 

In a 2-0 decision, with Member Hayes (R) having recused himself, the NLRB held that participation in class or collective actions is protected concerted activity under the NLRA. Accordingly, the arbitration agreement violated the NLRA because it prohibited employees from participating in protected concerted activity. The NLRB further held that the arbitration agreement violated the NLRA because the agreement appeared to prohibit employees from filing unfair labor practice charges with the NLRB.  

As part of its decision, the NLRB also considered an important issue of first impression:  whether the prohibition on class/collective action waivers in arbitration agreements the NLRB found in the NLRA put the NLRA in conflict with the pro-arbitration FAA. The NLRB determined that no conflict existed, noting that the NLRA would also prohibit other contracts that barred employment class or collective actions, regardless of whether the contract involved arbitration. 

Finally, the NLRB addressed concerns that its decision conflicted with a recent pro-arbitration opinion from the United States Supreme Court. In AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (pdf), the Supreme Court held that the FAA preempted a California law that prohibited class action waivers in consumer arbitration contracts. The NLRB attempted to distinguish AT&T Mobility by pointing out that the case involved a conflict between the FAA and state law, whereas the arbitration agreement at issue in D.R. Horton involved a potential conflict between two federal statutes, the FAA and the NLRA. 

The strength of the NLRB’s reasoning will almost certainly be tested on appeal. In the interim, labor professionals should review all individual, non-collectively bargained arbitration policies. In particular, labor professionals should consider:

• Allowing employees to participate in employment-related class or collective actions. According to the NLRB, an arbitration agreement can prohibit class or collective arbitration so long as employees were allowed to bring these claims in court. The NLRB chose not to address the opposite scenario:  whether an arbitration agreement could allow class or collective arbitration claims, but prohibit those claims in court. 

• Allowing employees to file unfair labor practice charges with the NLRB. Excluding such claims from the scope of an arbitration agreement improves the likelihood that the arbitration agreement will not run afoul of the NLRA. 

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By Nelson Cary and Micah Dawson

In College Football Bowl week terminology, some would say President Obama ran an “end-around” play on the Senate yesterday.  Using his recess appointment power, he filled the three vacancies on the National Labor Relations Board, despite the Senate's refusal to act on those appointments.  President Obama appointed his two most recent nominees, Deputy Labor Secretary Sharon Block (D) and union attorney Richard Griffin (D), to year long positions.  Obama also appointed Board counsel Terence Flynn (R), whose appointment had lingered for nearly a year, to fill the final vacancy on the five-member board, giving it a full contingent for the first time in a number of years.

The Chamber of Commerce, and Republicans, expressed immediate outrage and questioned whether the recess appointments were legal.  The argument against the appointments centers on the meaning of the recess appointment power contained in the U.S. Constitution.  Republicans point out there is not currently a “recess” as neither chamber has passed an adjournment resolution, and both chambers have been holding pro-forma sessions every three days. 

Whether the Chamber of Commerce or other business groups will file a lawsuit challenging the recess appointments is yet to be seen.  Labor professionals should monitor these developments as such a lawsuit would join a growing string of litigation involving the NLRB.

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Think that just because an employee has the title "supervisor" and is involved in the disciplinary process that the employee will necessarily be a supervisor under the NLRA?  Think again. 

In a recent decision, the NLRB examined the duties of an employee with the title "field supervisor."  This employee was the first level of leadership for hourly, non-supervisory employees.  The field supervisor monitored the productivity of those employees, examined their work, and inspected their vehicles.  The field supervisor could give verbal warnings to those employees for performance or attendance issues.  The field supervisor could also initiate what the employer called an "employee consultation form" (ECF), recommending to higher management that more significant disciplinary action be taken.  Following the referral of the ECF to higher management, multiple levels of management, along with a human resources manager, would review the ECF before accepting or rejecting it.  The employer established that higher management rarely rejected an ECF from a field supervisor.

In DirectTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011) (pdf), the NLRB held in a 2-1 decision that the employer failed to prove that the field supervisor was a "supervisor" under the NLRA.  To be a supervisor under the NLRA, an employee must possess certain authority with respect to other employees.  One such authority is the power to discipline another employee, or to effectively recommend that disciplinary action be taken.

The NLRB noted that "effectively recommend" means that the recommended action is taken without an independent investigation by superiors, and not simply that the recommendation is ultimately followed.  The NLRB then found that the employer proved merely that management ultimately followed the recommendation.  According to the majority, the employer didn't prove what weight higher management attached to the field supervisor's recommendation.  It also found that the review by other levels of management constituted "independent investigation" by the superiors.  Finally, the majority found fault with the employer's proof because it didn't demonstrate what impact the ECFs had on an employee's job status, future tenure or discipline.

Member Hayes (R) dissented.  He found that the record clearly established that the field supervisor had the independent, discretionary authority to discipline other employees.  The subsequent review by higher levels of management was not unique and to be expected to "assure procedural compliance with myriad Federal and State employment law regulations."  He also noted that the record contained evidence that ECF's seeking discipline up to and including termination have been approved and implemented.  Accordingly, Member Hayes would have held that the field supervisors are supervisors under the NLRA.

For the labor professional, the NLRB's decision is an important reminder of four points:

• Titles don't matter; duties do.  Regardless of what title an employer bestows upon an employee, it is important to match the duties to that title.
• "Effectively recommend" is not easily proved.  The NLRB will clearly look closely at how the alleged supervisor interacts with other members of management and what authority the person actually exercises.
• The burden of proving supervisory status is on the party asserting it.  If an employer anticipates taking the position that an employee is a supervisor, then the employer should be prepared with documentary evidence to prove that the employee exercises the statutorily required authority.
• Knowing which employees are supervisors is critical.  In this case, the evidence suggested that the field supervisors were involved in prounion activity.  The union won the election by only a five vote margin.  Because the field supervisors were not "supervisors" under the NLRA, their prounion activities didn't require a second election.

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The NLRB announced today that it is delaying the effective date of its notice posting rule.  This is the second delay the NLRB has announced.  This time, however, the NLRB stated that the delay was at the request of the federal judge in Washington, D.C. who will decide two of the three cases that business groups and others filed challenging the rule.  At a court hearing earlier this week, the judge asked the NLRB to delay the effective date of the rule.  The new effective date for posting the required notice is April 30, 2012.

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By Nelson Cary and Micah Dawson

Earlier today, the NLRB formally published their new election rules in the Federal Register.  Chairman Pearce (D) and Member Becker (D), whose term ends next week, voted in support of the new rule. Member Hayes (R) withheld his vote. Member Hayes can vote against finalizing the rule and publish a statement of dissent any time before the rule takes effect on April 30, 2012.

As expected, the new rule makes significant changes to union election procedures, including:

• Empowering the hearing officer to limit 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.

The rule, which has increasingly been referred to as the “ambush election” rule by those opposed to it, significantly limits employers’ legal right to object to the petitioned-for unit prior to a union election.  By shortening the amount of time between petition and election, it also curtails employers' ability to communicate with workers during the union election process.  With less ability to communicate, the rule limits the time during which an employee is certain to hear both sides of the story:  both the case for and the case against union representation.   

Even before the NLRB announced that it would publish this final rule, the U.S. Chamber of Commerce sought to nullify it.  On December 20, 2011, the Chamber filed a federal lawsuit challenging the new rule. The lawsuit attacks the validity of the new rule, stating that it violates Board procedure and denies employers' free speech rights. In addition to asking the court to vacate the rule, the Chamber’s lawsuit (pdf) seeks a preliminary injunction barring the rule from being enforced.

For the labor professional, the final rule is a major development.  Employers that are currently non-union should carefully consider the implications of the rule in light of their individualized circumstances.  Those employers may want to revisit their strategies given this development. 

The Chamber's lawsuit adds an additional level of complexity for the labor professional.  After business groups filed court challenges against the NLRB's notice posting rule, the NLRB delayed the effective date of that rule.  It is uncertain whether a similar delay will be announced here, given that the NLRB is at risk of losing one of its three members, and thus being unable to act.

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The NLRB announced today that it has formally adopted the revisions to the election rules that were originally proposed earlier this year.  The official notice will be published in the Federal Register tomorrow.  The rule, which some have referred to as the "quickie" or "ambush" election rule, will become effective on April 30, 2012.  Stay tuned to vorysonlabor.com for additional details about the final rule.

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Earlier this week, President Obama nominated two Democrats, Sharon Block and Richard Griffin, to serve as members of the NLRB.  Ms. Block currently works at the U.S. Department of Labor, an agency which has attracted attention over its controversial proposal to modify the rules governing "persuaders" in labor organizing campaigns.  Mr. Griffin serves as General Counsel for the International Union of Operating Engineers.  Additional information about Ms. Block and Mr. Griffin can be found in the NLRB's press release regarding their nominations.

The nominations come at an interesting time for the NLRB.  Currently, there are only three members on the NLRB.  One of those members, Craig Becker (D), holds a recess appointment that will expire at the end of the year.  If the Senate does not act on these nominations, or the nomination of Terence Flynn (R), whose nomination has been pending for months, the NLRB will fall to two members.  It will then no longer be able to issue decisions or new administrative rules.

Labor law professionals should not expect quick action on these nominations.  Sen. Lindsey Graham (R-S.C.) declared, even before the President announced his nominations, that he would continue to place a "hold" on any nominees to the NLRB.  According to his press release:  "I will continue to block all nominations to the NLRB until we get satisfactory answers regarding their role in [the decision to issue a complaint against The Boeing Company's decision to open a new plant in South Carolina]. Given its recent actions, the NLRB as inoperable could be considered progress." 

While the President could make recess appointments to the NLRB, like he did with Member Becker, the House has taken steps to remain in session.  Reportedly, these steps will prevent the Senate from going into full recess, preventing recess appointments from being made. 

Issues awaiting NLRB action, and that could be delayed if the NLRB were unable to act, range from a proposed rule that would speed up the union election process to a decision on a case with potentially significant impact on employer solicitation and distribution rules. 

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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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The NLRB announced today a delay in the effective date of its recently published final rule requiring the posting of a notice of employee rights under the NLRA.  Employers subject to the NLRB's jurisdiction are now expected to have the notice posted by January 31, 2012.  The rule was previously set to take effect on November 14, 2011. 

According to the NLRB's press release, the delayed effective date of the rule was "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses."  Of course, as readers of this blog know, there are also pending three federal court lawsuits challenging the NLRB's rule.  Those suits seek to invalidate the rule in its entirety.  The NLRB's press release doesn't reference these suits.

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By Nelson Cary and Ashley Manfull

On September 28, 2011, NLRB Administrative Law Judge (ALJ) issued a decision regarding the Section 7 rights of employees who criticize their employers via electronic media. This decision comes approximately three weeks after the decision in Hispanics United of Buffalo, ALJ Case No. 3-CA-27872, where an ALJ ruled that five employees were unlawfully terminated based on a series of Facebook posts regarding their working conditions.

In Karl Knauz Motors, Inc. and Robert Becker, ALJ Case No. 13-CA-46452 (pdf), the ALJ ruled that a car dealership acted lawfully in terminating sales employee Robert Becker based on one of two Facebook posts. In his first post, Becker posted pictures and sarcastic commentary of a customer event at the Company’s BMW dealership launching its latest luxury vehicle. Becker was upset with the Company’s food selection for the launch, so he posted pictures of the food display and salesmen posing with the food, along with various negative comments about how the company “went all out” for such an important launch. Becker and several other salesmen had raised concerns about the food in a sales meeting before the launch, concerned that a cheap event could impact their commissions. 

In his second post, Becker posted pictures of an accident involving a Company vehicle at the Company’s next door Land Rover dealership. A customer’s minor son entered a running vehicle and caused it to run over another customer’s foot, travel down an embankment and land in a pond. Becker posted pictures of the distraught customer’s son and the wrecked vehicle, along with sarcastic comments about the incident.

The Company terminated Becker’s employment due to his inappropriate comments on Facebook. The Company asserted that while Becker’s comments about the food at the sales launch were inappropriate, his termination was based on his Facebook posting regarding the Land Rover accident because he was making light of an extremely serious situation. Becker filed a Complaint alleging he was terminated for engaging in protected, concerted activity.

The ALJ accepted the Company’s evidence that Becker was terminated solely for the Land Rover posting. The ALJ found that the posting did not constitute protected concerted activity because the incident had no connection to the terms and conditions of Becker’s employment and Becker never spoke to any other employees about the incident or posting.   

Interestingly, the ALJ did note that Becker’s first posting constituted protected, concerted activity. While Becker made an individual decision to post those comments, the posting was a “logical outgrowth” of the prior comments that the other salesmen made at the pre-launch sales meeting. The “mocking and sarcastic tone” of the post was not alone sufficient to rise to the level of disparagement which would deprive the activity of its protection.

Finally, and of particular note to the labor professional, four employee handbook policies were also challenged. The ALJ found that three of them were unlawful, including one that prohibited employees “from being disrespectful or from using language that damages the reputation of the Company” and another requiring “outside inquiries concerning employees” to be directed to the human resources department. The ALJ evaluated these policies and determined that these policies interfered with employees’ Section 7 rights. 

As issues surrounding employees’ use of Facebook and other electronic media continue to develop, practicing labor professionals should be cautious when terminating employees for conduct that might be considered protected, concerted activity. In addition, the ALJ’s ruling on the employee handbook policies is a good reminder to review such documents regularly to identify potential problems.

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If the lawsuits of three different business groups are successful, the federal courts will have the last say about the validity of the NLRB’s notice posting rule. The National Association of Manufacturers (NAM), the National Federation of Independent Businesses (NFIB), and the U.S. Chamber of Commerce (Chamber) are each parties in three different lawsuits pending in federal courts seeking injunctions against the NLRB’s rule.

The Chamber’s lawsuit (pdf) is representative of the arguments raised against the notice posting. For example, the Chamber asserts that the NLRA doesn't give the NLRB the authority to promulgate a notice posting rule in the first place. This is one of the arguments that Member Hayes (R) made in his dissent to the notice of proposed rule-making many months ago. The Chamber also asserts, among other things, that the rule is not a balanced view of employee rights under the statute and that it violates employers’ First Amendment right to freedom of speech.

The Chamber’s lawsuit was the most recent one filed, and the Chamber picked South Carolina as the jurisdiction in which to file. The Chamber made an interesting forum choice given the NLRB’s pending complaint against Boeing’s new facility in that state. The NFIB and NAM both filed their complaints in the District of Columbia.

For the labor professional, the progress of these suits will be important to monitor. One or more of the courts could issue a preliminary injunction against the enforcement of the rule. The practical effect of such a development would be to delay the obligation to post the notice the rule requires.

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By Nelson Cary and Ashley Manfull

On September 2, 2011, an NLRB Administrative Law Judge (ALJ) issued the first decision on the question of employees’ Facebook posts. The decision, applying a liberal interpretation of protected, concerted activity under the NLRA to the online activities of employees, comes on the heels of the Office of the General Counsel’s report on social media cases issued last month. 

In Hispanics United of Buffalo, Inc. and Carlos Ortiz, ALJ Case No. 3-CA-27872, the ALJ ruled that five employees of a non-profit organization were unlawfully terminated for engaging in protected, concerted activity based on a series of Facebook posts which were made outside the workplace during non-working hours. The facts of the case are summarized in a prior blog post.

In finding a violation, the ALJ found the employees’ Facebook discussion constituted protected, concerted activity under Section 7 of the NLRA. When the first employee enlisted the support of her fellow employees to respond to criticism regarding their job performance, she was engaged in concerted activity just as much as “ordinary group activity” that does not take place online.

Applying a very liberal interpretation of concerted activity, the ALJ ruled that it was irrelevant that the employees were not trying to change their working conditions and did not communicate their concerns to their employer. The ALJ held that it was sufficient that the employees were taking a first step towards group action to defend themselves from a coworker’s accusations which they “could reasonably believe” the coworker may communicate to management.

Ultimately, the ALJ concluded that by discharging the five employees, the employer prevented them from taking any further group action regarding their coworker’s criticisms. It was irrelevant that there was no express evidence that the employees even intended to take further action in response to the criticism. The ALJ ordered HUB to reinstate the five employees with full back pay.

Under the NLRB’s process, the ALJ’s decision is now subject to appeal to the full NLRB. Thus, it is possible that the NLRB might rule differently, or the case may be settled before the NLRB has an opportunity to issue an opinion that would provide firm guidance. Nonetheless, the ALJ’s opinion is one that could be followed by other ALJs confronted with similar questions.

Practicing labor professionals know that issues surrounding employee rights with respect to social media are gaining increased attention. This is an area of the law that will continue to develop as more complex issues arise. Before addressing any issue with an employee regarding the use of social media during non-working hours, labor relations professionals should keep these recent developments in mind and thoroughly analyze the possibility of protected, concerted activity challenges to employee discipline.

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A business that purchases or merges with a company whose employees are represented by a union must navigate a labor law minefield.  The NLRB recently planted another mine in that field. In UGL-UNICCO Service Co., 357 N.L.R.B. No. 76 (2011) (3-1), the NLRB restored a modified version of the "successor bar" doctrine.  If the "successor bar" applies, the union that represented the seller's employees is entitled to a reasonable period of time in which its majority status cannot be challenged.  In addition, employers may not unilaterally withdraw recognition from the union based on a claimed loss of majority support.  This is the third of three major decisions that were included in the flurry of activity at the end of Chairman Liebman's term last month.

The NLRB's ruling marks another swing of the pendulum in an area that has seen substantial doctrinal shifts by the NLRB over the years.  This time, the NLRB not only reversed a 2002 ruling, however, but went further to define a "reasonable period" in certain situations.  The applicable time period for the bar will now depend upon the buyer's actions with respect to terms and conditions of employment.  If the buyer expressly adopts the existing terms and conditions of employment as the starting point for bargaining, without making unilateral changes, the "reasonable period" will be six months.  If the buyer exercises its right to set initial terms and conditions of employment (a decision that must navigate its own legal minefield), the "reasonable period" will be a minimum of six months and a maximum of one year.  In both of these situations, the period is measured from the date of the first bargaining meeting between the union and the employer.

Finally, the NLRB majority also modified the time-period for the "contract bar" in the successorship context. The contract bar is the period of time that a union is protected from an effort to test its majority status after it has negotiated a labor agreement with an employer.  The NLRB held that the contract-bar period applicable to election petitions filed by employees or by rival unions will be a maximum of 2 years, rather than the current 3-year maximum, but only in certain situations.

In a lone dissenting opinion, Member Hayes (R) argued that the majority’s decision was inconsistent with, and even an attack on, U.S. Supreme Court precedent.  He noted that the majority's decision elevates protection of incumbent unions over employee free choice.  The majority changed the law, in Member Hayes' view, "to service the ideological goal of insulating union representation from challenge whenever possible." 

For the labor professional involved in a merger or purchase situation, the NLRB's decision further complicates an already complicated area of the law.  Careful planning by the buyer early in the process will be necessary to ensure that the buyer's legal obligations are satisfied.

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By Nelson Cary and Brad Gibson

With the current NLRB, it is good to be a labor union around Labor Day.  Last year, the NLRB handed out an expanded right to engage in "bannering" without running afoul of the NLRA.  This year, the NLRB relieved unions, and the employers who voluntarily recognize them, of the possibility that the majority support for the union might be put to a test in an NLRB-conduct, secret ballot election soon after recognition.  This is the second of three major decisions issued during the flurry of activity at the end of Chairman Liebman's term.

The NLRA permits an employer to voluntarily recognize a union that establishes majority support among the employer's employees.  This is sometimes referred to as "card check."  One change EFCA would have brought is to make such recognition mandatory, if the union sought it, rather than voluntary, as the law is today.  The law used to provide that the voluntary recognition could not be questioned for a "reasonable period of time."

In 2007, confronted with the issue of voluntary recognition and concerned about the protection of employee free choice, the NLRB modified the recognition bar doctrine. In Dana Corp., 351 N.L.R.B. 424 (2007), the NLRB permitted a recognition bar only after a 45-day "window period" expired following voluntary recognition.  During this time, employees -- or a different union -- could file an election petition if at least 30-percent of the employees expressed support. In order to start the 45-day period, employers had to post an official NLRB notice informing employees of their newly created right to seek an election within the 45-day period to oust the lawfully recognized union.

In Lamons Gasket Co., 357 N.L.R.B. No. 72 (Aug. 26, 2011), the NLRB determined in a 3-1 decision to restore a complete "voluntary recognition bar" that blocks any challenge to the union’s majority status for a "reasonable period of time" following the employer’s voluntary recognition. Among other arguments, the majority noted that for 41 years, the law had never required a notice or window period until the NLRB imposed one in the Dana decision. Lamons Gasket expressly overrules Dana.

The NLRB did not stop, however, with merely overruling its precedent.  The majority went on to clarify the phrase "reasonable period of time" as used in the recognition bar context. This period of time will "be no less than 6 months after the parties’ first bargaining session and no more than 1 year." During this period, no employer, employee, or union may petition the NLRB for a secret ballot election and the employer may not withdraw recognition from the union. The specific length of this voluntary recognition bar depends on a multifactor test, which includes:

1. whether the parties are bargaining for an initial contract;
2. the complexity of the issues being negotiated and the parties’ bargaining processes;
3. the amount of time elapsed since bargaining commenced and the number of bargaining sessions;
4. the amount of progress made in negotiations and how near the parties are to concluding an agreement; and 
5. whether the parties are at impasse.

In a lone dissenting opinion, Member Hayes (R) accused the majority of making a "purely ideological choice" to overrule Dana without reasoned justification.  He attacked the recognition bar doctrine as not supported by the NLRA and dismissed the majority's arguments for overruling Dana.

For the labor professional, the decision has mixed implications.  As previously discussed on this blog, whether this is a positive development depends on the circumstances in which an employer finds itself.  If there are reasons why voluntary recognition is appropriate for an employer, the decision may be welcome news.  It removes the uncertainty associated with the Dana notice.  For other employers, the decision is another step towards removing obstacles to union organizing outside the confines of the NLRB secret ballot election process, and further encourages "top down" organizing (e.g., through the use of "corporate campaigns").

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By Nelson Cary and Micah Dawson

After identifying issues neither the union nor the employer raised, and inviting interested parties to submit briefs on those issues, the NLRB has issued a union-friendly decision.  In the process, the NLRB has reversed a 20-year-old precedent for bargaining unit determinations in nursing homes, rehab facilities, and other non-acute health care facilities.  This is one of three major decisions that were included in the flurry of activity at the end of Chairman Liebman's term.

In Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83 (Aug. 26, 2011) (pdf), the NLRB found that a group of Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. This decision overrules the NLRB’s 1991 decision in Park Manor Care Center, 305 N.L.R.B. 871, which had adopted a special approach for bargaining unit determinations specific to nursing homes, rehabilitation centers, and other non-acute health care facilities.

The employer in Specialty Healthcare had argued for a facility-wide "service and maintenance unit" that included non-professional employees such as cooks, dietary aides, activity assistants, maintenance assistant, and the medical records and data entry clerks, among many other job titles.  In other words, the employer argued that the unit include those whom it believed had been typically included in approved units in nursing homes under Park Manor.

In a 3-1 decision, the NLRB held that Park Manor was "obsolete" because it relied, in part, on an administrative rulemaking record from the late 1980's. In doing so, the NLRB substantially redefined the standard for an appropriate bargaining unit.  Under the NLRB's new rule, where an employer argues that a proposed bargaining unit inappropriately excludes certain employees, the employer will now be required to prove that the excluded employees share "an overwhelming community of interest" with employees in the proposed unit. 

Member Hayes (R), as he has done multiple times since his Senate confirmation, issued a dissenting opinion. He rejected the majority's conclusion that Park Manor was obsolete as not supported by any evidence in the record of the case.  He further argued that the new "overwhelming community of interest" test was not supported by circuit court or prior NLRB rulings.  He concluded by discussing the "vast practical ramifications" of the majority's ruling, including encouragement to unions to "engage in incremental organizing in the smallest units possible."  This new standard, combined with the NLRB’s proposed rule to expedite the union election process, will make it "virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through [NLRB] litigation."

The implications for the labor professional are significant:

• First, the decision permits unions to single out a particular job classification, convince a majority of those in that job classification to vote for the union, and then file a petition seeking to represent only those employees. 
• Second, it raises the possibility that many different unions could organize different job classifications. Thus, a nurses union could represent nurses, a service employee union could represent janitors, and yet another union could represent dietary aides. The possible proliferation of bargaining units could pose substantial challenges for labor professionals.
• Third, while the NLRB decided this case in the non-acute health care setting, it is easy to see the new standard facilitating a renewed era of union organizing.

Employers, and certainly those in the non-acute healthcare industry, should review the decision and consider its implications for their unique circumstances.

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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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By Nelson Cary and Brad Gibson

Investigations by the NLRB's regional offices of alleged unfair labor practices don't usually get stopped in their tracks.  The unusual happened recently in Oklahoma, however, when a federal judge decided that the NLRA does not apply to the Chickasaw Nation ("Chickasaw"), a federally-recognized American Indian tribe.  The court ordered the NLRB's investigation to stop.

Chickasaw is governed by its citizen-elected government in accord with its own constitution.   Chickasaw’s government has three branches, and the executive branch conducts all tribal gaming activities, which are operated in accordance with a comprehensive body of federal and tribal law. The gaming facilities are operated pursuant to location-specific licenses issued by Chickasaw’s Office of Gaming Commissioner and all the gaming facilities are located on Chickasaw’s tribal trust property. One of those locations is the WinStar World Casino (“Casino”). 

The NLRB served the Casino with two unfair labor practice charges asserting violations of the NLRA. In response, Chickasaw agreed that the Casino is a tribal government enterprise and that, as a matter of tribal sovereignty, the NLRA does not apply. When the NLRB nonetheless scheduled an administrative hearing for June 1, 2011, Chickasaw filed a complaint in district court halt the NLRB’s proceedings.            

The district court granted the Chickasaw’s request. Under applicable precedent relied upon by the district court, “federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization.” The court noted that the NLRA makes no explicit reference to Indian tribes, nor does anything in the NLRA’s legislative history indicate that Congress intended to abrogate tribal sovereignty. Accordingly, the court held that the NLRB did not have exclusive jurisdiction. 

Because there was a substantial likelihood Chickasaw would prevail in its claim for a declaratory judgment that it was not subject to the NLRA, the court granted Chickasaw’s request to prevent the NLRB from conducting further proceedings.

For labor professionals, it is important to recognize that this is a special case.  The Casino's ability to assert the Chickasaw's tribal sovereignty was critical to the outcome of this case.  In the vast majority of other cases, it is vital for an employer to actively defend itself from the beginning of an unfair labor practice proceeding.

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The NLRB has announced that it will hold an open meeting on July 18, 2011 to consider input from interested parties about its recently proposed rule on the election process.  The meeting will take place at the NLRB's headquarters in Washington, D.C. and will begin at 9 a.m.  Those interested in attending, or making a presentation, must notify NLRB staff no later than 4 p.m. this Friday, July 1, 2011.  Labor professionals seeking additional information about the meeting can locate details in the Federal Register or on the NLRB's website.

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It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.

The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing. 

Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. 

The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

According to an NLRB fact sheet, if adopted the proposed amendments would also:

·         Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.

·         Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.

·         Defer litigation of most voter eligibility issues until after the election.

·         Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.

·         Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

·         Make NLRB review of post-election decisions discretionary rather than mandatory.

The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.

Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at www.regulations.gov for the next 60 days.

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In non-right to work states, an employer and a union may lawfully agree to include a "union security" provision in their labor agreement.  This clause requires all employees to become a member of the union.  If an employee refuses to join the union, the contract typically requires the employer to terminate that employee.

Many years ago, however, the U.S. Supreme Court, in the Beck decision, ruled that the "membership" that may be required under the union security clause is simply the "financial core" of union membership:  paying money to the union to provide representation of the employee in their employment relationship with the employer.  An employee didn't have to pay for other activities of the union that were not related to this representational function.  The practical effect of this objection right for the employee, therefore, is to reduce the cost of union dues, with a corresponding reduction in dues income to the union.

To exercise the right to avoid "full" membership in a union, an employee must object.  Many unions have developed procedures to handle these objectors.  These procedures can sometimes require objectors to renew their objections on a periodic basis, such as annually.

Recently, the NLRB decided International Union, United Automobile, Aerospace & Agricultural Implement Workers of Am. Local Union # 376 (Colt's Manufacturing Co.), 356 N.L.R.B. No. 164 (May 27, 2011).  At issue was a union's procedure for objectors which required that the employee renew their objection to full union membership every 12 months.  The UAW's procedure provided notice of this right to object in a bimonthly magazine.  If an objection was received, the UAW would acknowledge receipt with a letter, which told employees their objection would expire in one year, but that they could renew the objection during a 30-day window period prior to the one year mark.  The union also sent a reminder letter to the employee 15 days before the one year period expired.  If they failed to renew, the employee would automatically begin paying full dues.  But, the employee could thereafter file an objection, which would again be honored for one year.

The NLRB, in a 2-1 decision, held that this procedure was permissible.  Analyzing the facts under a duty of fair representation standard, the NLRB found that the burden on an objecting employee's rights was minor.  First, the NLRB noted that the union sent out a number of letters to the employee that highlighted the one year time limit and the need to renew the objection.  Second, although there was a 30-day window period, if an objection was received outside of that period, it was still given effect for a full twelve months. 

Member Hayes, again writing a lone dissent, came to a different conclusion.  He relied upon three points:

• The burden on the employee was substantial as it imposed an affirmative obligation to renew an objection at the risk of forfeiting, even for a short time, the employee's legal right to refrain from subsidizing non-representational activity.
• The requirement was discriminatory, and hence a violation of the union's duty of fair representation, because the annual renewal requirement was imposed only on those employees who want to refrain from full membership; there was no annual renewal obligation for those joining the union.
• The annual renewal obligation was a form of coercive interrogation of those employees who objected to the payment of full union dues.

The NLRB's decision will primarily interest those labor professionals working in a unionized environment.  What it means is that employees in the bargaining unit who do not want to pay for the union's activities that are not related to representation will need to make even more of an effort to maintain that status.  As the facts of Colt's Manufacturing itself suggest, it is questionable whether employees will do so.  The two employees who filed charges against the UAW both wanted to remain objectors for a long term.  One wanted to remain an objector for three years and the other "until the UAW is decertified."  After going through the UAW's process, however, there was no evidence presented that either employee continued to object.

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Last September, in a decision just in time for Labor Day, this blog introduced readers to the NLRA's restrictions on secondary boycotts.  In that case, the NLRB issued a union-friendly ruling holding that the display of large, stationary banners was not picketing.

Last week, the NLRB continued its development of the law in this area with its decision in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (May 26, 2011).  Once again, organized labor should be happy with the result.

The most recent case addresses the display of a large, inflatable rat.  The balloon measured 16 feet tall and 12 feet wide and had attached to its abdomen a sign with the primary employer's name on it.  The union placed the balloon on public property within 100 feet of a hospital's entrance to protest the hospital's use of a construction company that the union claimed was not meeting area standards for wages and benefits. Several union members stood next to the rat and passed out leaflets.  One leafletter stopped handing out his leaflets, however, and instead stood stationary near a vehicle entrance with his arms outstretched, displaying the leaflets.  When asked by hospital security what the union members were doing, a union organizer responded that they were "picketing."

In a 3-1 decision, the NLRB held that the display of the balloon and the stationary display of the leaflet was actually not picketing, and was therefore lawful.  The NLRB majority reasoned that the rat balloon and leaflet displays didn't block ingress and egress to the hospital or rely upon violence to intimidate the hospital.  The NLRB rejected the argument that the rat balloon was picketing because there was no element of "confrontation" -- the balloon was stationary and located sufficiently far away from the building and vehicular entrances.  Finally, the facts did not show that there was any non-picketing conduct that was nonetheless coercive, like shouting, mass gatherings, and the like.

Member Hayes again assumed the voice of the lone dissenter.  He argued that the message from the display of a "gigantic" rat was "unmistakably confrontational and coercive."  He also noted that the display was a signal to third parties that "there is, in essence, an invisible picket line that should not be crossed."  Finally, he noted that the essence of picketing, up until the NLRB's decision last September, was the posting of an individual at an entrance.  Moreover, he reasoned, holding out a leaflet was the functional equivalent of wearing a placard, which is something the NLRB has historically considered to be picketing.

For the labor professional working with employers, the NLRB's decision is yet more bad news.  Like its September 2010 ruling, the NLRB has again expanded the universe of permissible forms of pressure that unions can bring to bear on neutral employers.  Even the posting of an individual at a vehicle entrance displaying a leaflet is apparently permitted in at least some circumstances.  With the expanding scope of lawful union tactics in this area, the need for planning surrounding those activities will likewise continue to increase. 

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The NLRB, this time through its regional office in Buffalo, New York, has issued another complaint (pdf) against an employer in a case involving Facebook postings.  The employer alleged to have violated the NLRA is Hispanics United of Buffalo, Inc., a non-profit organization. 

According to the NLRB, employee "A" posted allegations of employee "B" to employee A's Facebook page.  The comments from employee B alleged that the employer did not do enough to help its clients.  Employee A's post then generated additional posts from other employees, who defended their job performance and complained instead about workload and staffing issues.  Hispanics United, upon learning of the posts, discharged employee A and the other employees (five employees in all) who responded to that post.  The employer appears to have reasoned that employee A's comments, and those of the other employees, constituted "harassment" of employee B.

As with the complaint previously issued by the Hartford regional office (covered last November on this blog), it is important to note that the complaint against Hispanics United is only an assertion that the employer violated the NLRA.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, it is a reminder for the labor professional of some important points: 

• Protected, concerted activity.  As this blog previously noted, "concerted activity" can be alleged to occur in a number of different contexts.  In the Hartford case, the concerted activity was complaining about one's immediate supervisor.  In this case, the concerted activity was the discussion of working conditions, specifically those dealing with workload.  Employers need to be vigilant in watching for disciplinary actions that could implicate protected, concerted activity.
• "Harassment" is not necessarily a defense.  Many employers maintain policies that are designed to prevent harassment in the workplace.  The Hispanics United complaint demonstrates that sometimes such a policy may not be a permissible basis on which to discipline an employee.  
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  The Buffalo complaint reinforces the observation this blog made when the Hartford complaint was announced:  lest there be any doubt, the regional offices will apply these "old" laws to new forms of employee communication just as aggressively as they did in the days of the water cooler conversation. 

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Fresh off his controversial decision to challenge Boeing for deciding to locate a new manufacturing facility in South Carolina instead of utilizing its existing unionized workforce in Washington, the NLRB's Acting General Counsel Lafe Solomon has announced a federal lawsuit against Arizona.  At issue is an amendment to the state's constitution that Arizona voters approved only last November.  The complaint asks the court to issue a declaration that the Arizona law is unconstitutional.

The complaint (pdf) filed in the United States District Court for the District of Arizona alleges that the state law "guarantees" a secret ballot vote in a union election.  The NLRA, however, does not require a secret ballot vote in order for an employer to recognize a union.  For example, an employer may chose to voluntarily recognize a union if the union can demonstrate support from a majority of employees.  Therefore, reasons the AGC's complaint, the state law conflicts with federal law and it is preempted by the supremacy clause of the U.S. Constitution. 

South Dakota is apparently the AGC's next target.  Two other states that passed similar laws, South Carolina (as noted above, where Boeing located its new airplane manufacturing operation) and Utah, are mentioned in the press release as well.  The AGC has "reserved the right" to sue them, but the press release announces no specific plans to do so anytime soon.

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In New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011), the Board expanded the right to handbill on private property.  The party accused of wrongdoing in this case was a casino.  Completely within the casino's property, a different employer, pursuant to a subcontract with the casino, operated a restaurant.  The restaurant's employees were attempting to organize a union. 

To get their message out, off-duty employees of the restaurant distributed handbills within the casino.  Because the distribution was taking place on its private property, and the employees engaged in the distribution were not the casino's employees, the casino asked the handbillers to stop.  When they declined to do so, the casino contacted police and charged the employees with trespassing.

The NLRB held that the casino's action was unlawful.  The NLRB, balancing the property rights of the owner against the NLRA-protected rights of the employees, announced a new test.  A property owner may prohibit off-duty employees of a subcontractor from engaging in handbilling to customers only where (1) it can demonstrate that the activity of the subcontractor’s employees “significantly interferes” with the owner’s use of the property; or (2) there is another legitimate business reason to justify the exclusion. In this case, the casino could not demonstrate that these criteria were present.  Accordingly, their actions were unlawful.

NLRB Member Hayes dissented from this decision.  He believed that restaurant employees should be required to show that they had no other reasonable way to communicate with their fellow employees or the customers of the restaurant.  Only then should the organizational rights of the employees trump the private property rights of the owner.  Member Hayes' test is drawn from the well-established property access rule applicable to non-employees, like union organizers.

For the labor professional, the NLRB's decision has significant implications.  No longer can an employer assume that all non-employees may categorically be excluded from private property.  Rather, if the non-employees sought to be excluded have some connection with the property, they may have rights under the NLRA.  Employers and property owners in industries where subcontracting is present, such as the hospitality and retail industries, should be particularly mindful of the new rule the NLRB announced in this case.

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A supervisor gives a pro-union petition to her subordinates and asks them to sign it.  Not surprisingly, some of them do so.  The supervisor then remains actively involved in the organizing campaign.  She speaks at union meetings and wears union insignia.  In the secret ballot election the NLRB conducts, the union wins the majority of the votes cast.

Should the election result be set aside based on the supervisory employee's conduct?  Not according to a decision released yesterday by the NLRB.  In Terry Machine Co., 356 N.L.R.B. No. 120 (2011), the NLRB held (pdf) in a 2-1 decision that the solicitation of signatures on a union representation petition by seven different supervisors didn't warrant setting aside the election results.

The majority, applying a 2004 NLRB decision, reasoned that the employer's anti-union campaign "mitigated" the effect of the supervisors' activities.  In particular, the majority noted that the employer threatened to terminate the pro-union supervisors, and that the supervisors communicated that threat to employees.  Some of the supervisors, however, continued to campaign for the union even after the threat, without any repercussion.

Member Hayes disagreed with the majority's "mitigation" finding.  He noted that the dissemination of the threat to fire the supervisors was not done by the employer, but by the supervisors themselves.  Moreover, he did not believe that the antiunion campaign could mitigate the effect of pro-union supervisors soliciting support for the union and opposing that very campaign.

Another holding in the case is also significant.  The election that the employer challenged occurred in 1999.  The case, however, had a tortured procedural background, having previously been before the NLRB three different occasions.  Despite the passage of time, the majority certified the union as the representative for the employees in the bargaining unit.  Member Hayes dissented on this point as well, noting that court of appeals precedent drew into question the enforceability of any order requiring bargaining with the union in light of the substantial delay in the NLRB's handling of the case.

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One of the key assets of any company is its customer base.  Businesses spend a lot of money to build that base and the loyalty of that base to the company's goods or services.  Not surprisingly, businesses care about what their customers think about the company, and that includes the employees who deliver the goods or services the company provides.

Late last week, however, the NLRB ruled that those considerations take a back seat to employees' desires to speak out about a dispute with their employer.  In AT&T Connecticut, 356 N.L.R.B. No. 118 (2011), the NLRB ruled that an employer violated the law when it prohibited its service technicians, when visiting customer's homes, from wearing a t-shirt critical of the company. 

The NLRB described the shirt as a plain white t-shirt with "Inmate #" in "relatively small" letters the upper left front of the shirt.  On the back of the shirt, two sets of vertical stripes appeared with "Prisoner of AT$T" in between the stripes.  AT&T, concerned about the reaction of its customers to these shirts, prohibited service technicians from wearing them.

The NLRB found that the shirts were not reasonably likely to cause fear or alarm among the employer's customers.  The print was relatively small and the reference to "prisoner" was only half the size of the reference to "AT$T."  Moreover, the majority noted that the technicians appeared at customers' homes in response to appointments the customers made; called the customer before coming to the home; carried identification cards on their belts or wore them around their necks; and would have an AT&T truck "parked[ed] nearby."

In a dissenting opinion, Member Hayes came to a different conclusion.  He found that the employer's restriction was appropriate under the circumstances.  Customers would first see "Inmate #" on the t-shirts upon opening their doors.  The other print was on the back of the t-shirts.  There was no reference to a labor dispute anywhere on the shirt.  Finally, the employer banned the t-shirts at a time when, in the state where they were being worn, there had been a home invasion by two convicted felons resulting in the deaths of a mother and her two children.  Under these circumstances, Member Hayes believed the employer's prohibition on the t-shirts was permissible.

For the labor professional, the opinion serves as a reminder of the scope of an employee's rights under the NLRA.  Employees wearing union insignia will often be protected, and the employer will often find it difficult to impose limitations on those rights.

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Earlier this year, Acting General Counsel Lafe Solomon met with the Practice and Procedure Committee of the American Bar Association's Labor and Employment Law Section.  He answered questions the Committee collected from practitioners around the country.

Recently, the AGC issued a memorandum (pdf) to the NLRB's Regional Directors and others NLRB employees to share the questions that were posed and the answers that were provided.  The topics covered were extensive, and this post cannot comprehensively summarize all of them.  However, some of the more interesting highlights (with page number references to the memorandum) include:

• Data on the AGC's enforcement efforts outlined in earlier AGC memoranda on remedies (see pp. 1-2).
• Additional insights on the routine use of default language in all informal settlement agreements (see pp. 6-7).
• Clarification that the AGC is not currently considering changes in the scope of pre-arbitral deferral (see p. 10).
• Questions and answers about how the AGC intends to apply the NLRB's decision requiring electronic posting of NLRB notices (see pp. 12-13).
• Interesting data on representation case filings with the agency, which rose 10% between FY 2009 and FY 2010 (see p. 18).

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Employers are often faced with employees who complain about issues with their employment.  When employees engage in "protected, concerted activity," however, the NLRA prohibits employers from taking disciplinary action against them.  A recent case from the NLRB is a good reminder of this rule.  In Wyndham Resort Development Corp., 356 N.L.R.B. No. 104 (March 2, 2011), the NLRB held, in a 2-1 decision, that an employer unlawfully disciplined an employee for engaging in protected, concerted activity.  The circumstances of the case are particularly noteworthy for the labor relations professional.

The employer implemented a rule for salesmen requiring that shirts be tucked in.  An employee, learning of this policy upon returning from a vacation, confronted management about how the rule was announced in front of a group of his co-workers.  During this confrontation, another employee expressed concerns about the substance of the rule, objecting to the requirement that he tuck in his shirt.  That employee indicated, among other things, that he "didn't sign up for this crap".  Neither of these employees had talked to the other in advance of their respective decisions to raise this complaint with management.

Ultimately, a manager issued a written warning to the first employee.  The manager noted the employee's argumentative and aggravated tone during the confrontation.  The manager also noted in the warning that the employee "incited" another employee to join in.

The NLRB majority held that the employer's written warning was unlawful.  The employee was engaged in concerted activity because he made references to "we" and "us" when opposing the employer's policy.  The employee also knew that some of his coworkers enjoyed wearing shirts untucked, and thus he could "reasonably expect" those employees to disagree with the rule.  The fact that another employee joined in also demonstrated concerted activity.  Indeed, given the employer's reference to this fact in the written warning, the NLRB concluded that the employer disciplined the employee precisely because he chose a group forum that was likely to induce group action. 

The NLRB majority found it irrelevant that the employees had not agreed or consulted one another in advance of the employee meeting to protest the work rule together.  It was enough, said the NLRB, that the employee was attempting to initiate or induce group action.

Member Hayes disagreed with the majority opinion.  He noted that the employee acted in a group setting, but that there was no evidence that he did so on behalf of coworkers or to induce group action.  Member Hayes criticized the majority for essentially holding that an employee who voices a complaint in a group setting is thereby engaged in concerted activity.

For the labor professional, Wyndham Resort is significant for at least two reasons:

• It demonstrates the breadth of protection the current NLRB will afford employees engaged in "protected, concerted activity."
• It reminds employers of the need for effective mechanisms (e.g., "open door" policies) to receive and address employee complaints. 

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By Nelson Cary and Samantha Stilp

The comment period for the National Labor Relations Board proposed rule requiring employers to post notice informing workers of their right to unionize officially ended last week.  Nearly 6,500 comments reveal strong opposition to the rule from all types of employers.

Those filing comments opposing the rule focused on three main issues. First, the comments questioned the NLRB’s authority to make such a rule. Second, commenters expressed concern that the text of the proposed notice was one-sided, containing information about rights of employees to join unions, but omitting information regarding employees’ rights to decertify a union, object to certain union dues/fees, and seek relief against unions for lack of fair representation. Finally, commenters criticized the potential penalties for violation of the rule.  All of the comments to the proposed rule are available online.

In addition to these general concerns, retailers and manufacturers, as well as organizations representing each, expressed frustration with the electronic notice requirement. Comments concerning the electronic notice requirement urged that such notice would place significant burdens on employers and create a “troubling precedent” of using employer email systems to provide union information to employees.

If promulgated, the notice requirement rule would be problematic for employers on many grounds. For now, employers are encouraged to be watchful for the NLRB’s next step with regard to the proposed rule. The proactive labor professional may also want to begin planning for the possibility that the rule will be adopted, thus requiring the posting of the proposed notice.  It is uncertain when the NLRB may take additional action on the proposed rule. 

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Last November, the NLRB's regional office in Hartford, Connecticut, issued a complaint against an employer that had disciplined an employee for something she posted on her Facebook page.  The unfair labor practice complaint was previously reported on this blog.

Yesterday, the NLRB announced that the employer had agreed to settle this charge.  As it relates to the portion of the complaint dealing with the employer's policies, the employer agreed (pdf) to revise its rules of conduct to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  The employer promised not to discipline employees for engaging in that conduct. 

The employer came to a separate, private agreement with the discharged employee.  Thus, it is unknown what terms were agreed upon to resolve that part of the complaint.

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Last year, President Obama nominated Craig Becker to the NLRB.  Mr. Becker's nomination, however, bogged down in the U.S. Senate over his controversial views on the NLRA.  The U.S. Chamber of Commerce even took the step of opposing Mr. Becker's nomination, a position it had not taken since the early 1990's.  Ultimately, Mr. Becker's nomination failed to garner the 60 votes needed to overcome a threatened filibuster in the Senate.

In response, President Obama used a recess appointment to place Mr. Becker on the NLRB in 2010.  Since that time, he has participated in a number of decisions the NLRB has issued.

Rather than looking for a different individual to fill this seat on the NLRB, last week the President again nominated Mr. Becker.  Given the change in composition of the Senate in the 2010 election cycle, it seems unlikely that Mr. Becker will be confirmed by the Senate.

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Previously, Vorys on Labor reported on several state ballot initiatives that advanced amendments to state constitutions.  The amendments purported to protect the right to a secret ballot in any election, including a labor election.  These amendments passed by substantial margins in Utah, South Dakota, South Carolina, and Arizona -- everywhere they were on the ballot.

As the prior post discussed, the state constitutional amendments raised a question about whether they were preempted by the NLRA.  The NLRB recently concluded that they were, and has formally notified the Attorney General of each of the four states of its position.  The NLRB reasons that federal law permits employees to organize either by secret ballot or by "voluntary recognition [by an employer] based on other convincing evidence of majority support" (i.e., union authorization cards or card check).  Because the state amendments limit one of these rights, and because federal law is supreme under the U.S. Constitution, the state amendment is preempted, and unconstitutional.

The Acting General Counsel of the NLRB wrote each state's Attorney General explaining this position.  The letters demand that the state respond within 14 days of the letter or else a lawsuit attacking the amendments will be filed.

The NLRB's action is certainly an aggressive one.  It has not decided to wait for a case in which the state amendment was invoked to reach the question of its constitutionality.  Rather, it is affirmatively threatening a lawsuit in order to have the amendments publicly declared to be unconstitutional.  This push towards litigation relatively soon after the election results is certainly consistent with the NLRB's, and its Acting General Counsel's, recent pursuit of stronger remedial measures for violations of the NLRA (see here, for example).

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In a notice (pdf) to be published today, the Department of Labor is soliciting comments on electronic voting in union officer elections.  The law requires that unions elect officers based on a secret ballot vote.  According to the notice, labor unions and other interested parties have requested guidance on the use of electronic voting mechanisms in union officer elections.  The litany of questions on which the DOL seeks input can be found at the end of the notice.

Labor professionals should note the following points about this development:

• First, it does not apply to union representation elections conducted by the NLRB.  Instead, it applies to elections unions conduct internally to determine their officers.
• Second, if guidance is issued, it may have an effect on the NLRB.  Last year, the NLRB requested information on how it could implement electronic voting in union representation elections.  If the DOL issues guidance on the issue, the NLRB may follow suit.  After all, the NLRB's recent proposed rulemaking on employer notice followed DOL regulations requiring federal government contractors to do the same thing.

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The NLRB has functioned with only four members and without a General Counsel for a number of months.  Yesterday, President Obama announced his nominations for those key remaining vacanices at the NLRB.

For General Counsel, the President nominated Lafe Solomon.  Readers of this blog know Mr. Solomon as the NLRB's current Acting General Counsel, and the author of memoranda detailing new, and not very employer friendly, enforcement procedures.  Mr. Solomon joined the NLRB in the 1970's.

For the remaining vacancy among the members of the NLRB, the President nominated Terence F. Flynn.  Mr. Flynn is presently the Chief Counsel for Member Hayes (R) and previously served as Chief Counsel for Member Schaumber (R).  Before joining the NLRB, Mr. Flynn was a labor and employment lawyer in private practice.

The NLRB's press release with additional information about the appointments is available here.

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The National Labor Relations Board (“NLRB”) has proposed a rule that would require employers to post notices informing workers of their right to unionize. The NLRB rarely uses its rulemaking authority, and the proposed rule is the first time the NLRB has invoked that authority since 2004. 

Under the proposed rule, all employers subject to the National Labor Relations Act (“NLRA”) would have to post an 11-by-17 inch poster educating employees of their rights under the NLRA. The notice would have to be posted where the employer posts other workplace notices, such as safety, wage and hour, and anti-discrimination posters. Employers that primarily communicate with employees via email or other electronic means would have to also post the notice electronically. 

If an employer failed to post the notice, it could be penalized.  The NLRB would treat such a failure as an unfair labor practice.  It would also suspend the statute of limitations that would otherwise be applicable and could use the failure to post the notice in the context of other unfair labor practice charges unrelated to the notice posting issue.

The proposed rule represents a notable departure from the NLRB’s typical practice of requiring employers to post notices only as a remedy for noncompliance with the NLRA or a few days in advance of an NLRB-conducted election. According to the explanation accompanying the NLRB’s proposal, the NLRB’s broad enforcement of a posting requirement is rooted in its belief that employees are “unaware of their rights under the statute.” Indeed, the NLRB’s press release says that the purpose of the proposed rule is to “increase knowledge of the NLRA among employees, to better enable their exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

To that end, the proposed notice will state that employees have the right to:

• act together to improve wages and other terms and conditions;
• form, join, or assist unions;
• bargain with their employer;
• discuss union organizing with co-workers or a union;
• raise work-related complaints with their employer, a governmental agency, or a union;
• strike and picket; and
• choose not to engage in any of these activities. 

The notice would also provide examples of unlawful employer and union conduct, as well as instruct employees how to contact the NLRB with questions or complaints. The complete text of the proposed employee rights notice and the proposed penalties for failing to post the notice are set forth in the Proposed Rule.  There is a 60 day period for public comment on the proposed rules.

For the labor professional, the NLRB's action is really quite remarkable.   It wants to require otherwise compliant employers to post notices informing employees of their right to unionize. This also suggests that future NLRB rulemakings are on the horizon. Indeed, the fact that law professor Charles Morris originally proposed the rule to the NLRB in a 1993 petition further supports this possibility. Readers of this blog may recall that Morris has also petitioned the NLRB asking that it issue an administrative rule requiring employers to bargain with unions that do not represent a majority of an employer’s employees.

It is unclear what awaits labor professionals if Professor Morris is influencing NLRB policy, but if the NLRB's proposal is any sign, employers should beware and remain watchful of any additional rulemaking activity.  Those employers and other interested parties who wish to comment on the regulations should note the applicable deadline for receipt of those comments.

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NLRB Acting General Counsel (AGC) Lafe Solomon is continuing his focus on remedies in unfair labor practice (ULP) cases involving union organizing campaigns.   On September 30, 2010, he issued a memorandum on Section 10(j) injunctions for discriminatory discharges during such campaigns.  Today, he released another memorandum (pdf), this one targeting remedies regional offices should seek when they issue complaints in ULP cases involving campaign activity. 

The most recent memorandum, in the AGC's words, demonstrates a commitment to "making the principle of employee free choice meaningful."  In contrast to his 10(j) memorandum, however, which only focused on employee discharges, the AGC has substantially broadened the scope of his effort to include other violations as well.  These violations include:

• threats of job loss;
• threats of plant closing;
• promises or grants of benefits;
• solicitation of grievances;
• interrogation;
• surveillance; and
• interfering with the ability to communicate between employees.

The memorandum released today notes that cases in which unlawful discharges are alleged often include the other violations listed above.  "These additional unfair labor practices also have a serious impact on employee free choice, as they inhibit employees from engaging in union activity and dry up channels of communication between employees."

To fully remedy these ULPs, the AGC's memorandum authorizes regional offices (those who prosecute ULP cases) to seek the following remedies:

• Notice reading.  Requiring a management official or NLRB agent to read the remedial notice.  In typical cases, the remedial notice must be posted on an employer's bulletin board or, sometimes, distributed electronically.
• Access to bulletin boards.  Regions "should. . .seek" this remedy when the ULP has had an adverse impact on employee/union communications.  The remedy would permit the union to place its campaign materials on the employer's bulletin boards.
• Access to employee names and addresses.  Typically, a union is only entitled to this information after it has filed a petition for an election with the NLRB.  The AGC's memorandum provides for expanded access to this information (both at an earlier stage and for a potentially longer period of time) as a remedy to alleged ULPs.

This development has a number of implications for the labor professional:

• First, it reminds employers of the significant legal liabilities that lurk beneath the surface of any union organizing effort.  Navigating those waters requires careful planning and execution.
• Second, with EFCA all but dead in Congress, traditional union organizing (i.e., filing petitions and holding secret ballot elections) is likely to increase.  Indeed, while not nearly as helpful to unions as EFCA's card check would have been, an increased emphasis on the remedies contained in the AGC's memorandum is certainly a helpful tailwind for union organizing. 
• Third, the three remedies noted above may be just the start.  In cases involving multiple unlawful employer speeches or where the employer is a "recidivist," showing a "proclivity to violate" the NLRA, the AGC tells the regional offices they "should" seek additional guidance on even more severe remedies, like union access to the workplace, "equal time and facilities" for unions to speak to employees about unionization, and union speeches to employees prior to an election. 

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Recently, the NLRB issued a notice inviting interested parties to file briefs on whether an employer violates the NLRA by denying union access to its property to distribute handbills while permitting other individuals, groups, or organizations to use its property for various fundraising or solicitation activities.

The question arose from an unfair labor practice case involving Roundy’s, Inc, a grocery store operator, and the Milwaukee Building and Construction Trades Council. In 2005, the Council engaged in handbilling in front of 26 Roundy’s stores, asserting that Roundy’s was building and remodeling stores with nonunion contractors that did not pay prevailing wages and benefits. Roundy’s took measures to remove the Council members, including calling the police.

The Council then filed an unfair labor practice charge against Roundy’s, accusing the company of violating Section 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights under federal labor law. The NLRB found that, in 23 stores, Roundy’s did not have a sufficient property interest to exclude the Council’s handbillers. Consequently, it found a violation of the NLRA with respect to these stores.

In two of the three remaining stores, the NLRB found that a sufficient property interest had been established. However, the evidence revealed that, at these stores, Roundy’s had permitted various organizations and individuals to solicit and distribute literature, including the Salvation Army, Boy Scouts, Girl Scouts, political candidates, and others. 

To further address whether Roundy’s unlawfully excluded the Council’s handbillers at these two stores, the NLRB issued a decision and an invitation for interested parties to file briefs on one or more of the following three issues:

1.      In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the NLRB majority in Sandusky Mall Co.?

2.      If not, what standard should the NLRB adopt to define discrimination in this context?

3.      What bearing, if any, does Register Guard, 351 N.L.R.B. 1110 (2007), enf. denied in part, 571 F.3d 53 (D.C. Cir. 2009), have on the NLRB’s standard of finding unlawful discrimination in nonemployee access cases?

Labor professionals should take note of this decision for at least several reasons:

1.      The NLRB’s ruling could have a major effect on the extent to which an employer can limit union solicitation and distribution on property they own or control. The NLRB has long held that an employer cannot “discriminate” against union-oriented solicitation or distribution. But there has been considerable disagreement over what the term “discriminate” means in this context. A broad interpretation will mean that an employer that permits Girl Scout cookie sales but prohibits union solicitations has violated the NLRA.

2.      By referencing Register Guard, the NLRB may be setting the stage for overruling the portion of that decision that gave a narrow interpretation to the concept of discrimination. On the other hand, all four NLRB members, including the Republican appointee, joined in the decision to further explore the appropriate meaning of the term. 

3.      The Register Guard case involved employee solicitation. Roundy’s prohibited solicitation by non-employees. The second question, with its reference to “this context,” suggests that the NLRB would consider applying a different standard of “discrimination” to nonemployee solicitation and distribution. What this standard may be, and how it may affect employer interests, will be important for labor professionals to monitor.

4.      Before taking action against nonemployees, make sure that the employer has the property right to do so. If the employer doesn’t have a sufficient property interest, the NLRB’s decision is an important reminder that the "discrimination" question isn't even reached.

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Employee use of social media causes labor professionals problems with increasing frequency.  Facebook pages, Twitter feeds, and similar outlets seem to provide a never ending stream of possible employee relations scenarios.  In an effort to deal with these issues, many businesses have adopted policies governing employee use of these internet resources.  In addition to addressing the employee relations issues, employer's see these policies as a way to protect their reputation and/or brand.

As employers grapple with these issues, however, courts and agencies do as well.  The NLRB is no different.  A good example was made public last night from the NLRB regional office in Hartford, Connecticut.  The regional offices are responsible for prosecuting alleged violations of the NLRA.  The Hartford office announced that it has issued an unfair labor practice (ULP) complaint (pdf) -- an allegation that the employer violated the NLRA -- against an employer who disciplined an employee for comments on her Facebook page.

The complaint alleges that a supervisor asked an employee to meet to discuss what the employee thought could lead to discipline against her.  The employee requested union representation, which was denied.  Later that same day, the employee posted critical comments about her supervisor on the employee's Facebook page.

The complaint further alleges that the employer fired the employee for her comments on the Facebook page.  The employer's blogging and internet posting policy prohibited employees from making disparaging comments about the employer and supervisors.  The employer's policies also prohibited "rude or discourteous" treatment of a coworker.

It is important to note that the Hartford office's complaint is merely that:  an assertion that the employer's conduct was unlawful.  It doesn't constitute a finding by the NLRB that the alleged conduct occurred or that it was unlawful.  Nonetheless, the complaint serves as an important reminder of at least three points:

• Protected, concerted activity.  The complaint asserts that the employee's comment on the Facebook page was "concerted activity"  under the NLRA.  Employers are not permitted to discipline employees for engaging in protected, concerted activity.  This case reminds all employers that this activity can be alleged to occur in a number of different contexts.
• What your policies say matter.  The complaint attacks not only the employer's discipline, but also the policy itself.  Employer policies can be phrased in a fashion that is overly broad under the NLRA, thus violating federal law.
• New media; old law.  Protection of concerted activity by employees is a bedrock principle of the NLRA.  In the event there was any doubt, this complaint suggests that the regional offices will apply those laws to new forms of employee communication just as aggressively as they have in the days of the water cooler conversation. 

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A traditional remedy the NLRB has always ordered when it finds that an employer or a union violated the NLRA is the posting of a written notice.  Usually, the remedial notice contains a brief recitation of employee rights under the law, a listing of the violations the NLRB found, an  undertaking to cease and desist from that conduct, and a description of affirmative action to be taken to resolve the violations.  The notice must be signed by a responsible official of the party found in violation of the law.

In the past, the NLRB ordered the remedial notice to be posted in all places where notices were customarily posted.  In the case of an employer, this usually meant bulletin boards controlled by the employer, near time clocks, and similar locations.  It was typically an extraordinary remedy for the notice to be disseminated any more broadly than this paper posting.

In J&R Flooring, Inc., 356 N.L.R.B. No. 9 (2010) (3-1), the NLRB recently altered this traditional approach.  In a case involving violations of the NLRA by an employer, the NLRB ordered that the employer distribute the remedial notice electronically when that is the customary means of communicating with employees.  (The same rule applies in the case of unions found to have violated the NLRA.)  Member Hayes disagreed, and would have limited the posting to the traditional remedy.

The NLRB reasoned that employers are increasingly communicating with employees through electronic media.  The NLRB also pointed to the growth in telecommuting and decentralization of workspaces that could cause an employee to never see a notice that is posted on a bulletin board.  Finally, the NLRB reasoned that if an employer customarily uses its electronic systems to communicate with employees, then use of the same means to distribute a remedial notice would not impose an undue burden on employers.

For the labor relations professional, the J&R Flooring decision is significant for four reasons:

1. Electronic "posting" means easy access.  With remedial notices available electronically will come a greater ability to distribute them to key customers, vendors, or other employee groups not impacted by the unlawful conduct.  Member Hayes noted the employer's loss of control over the remedial notice document as one of the reasons he believed electronic distribution should remain an extraordinary remedy.
2. The contours of the obligation are uncertain.  The NLRB doesn't define in the decision the circumstances under which any particular set of circumstances will warrant the conclusion that the employer's use of electronic media is sufficiently customary.
3. The decision potentially foreshadows reversal of a key 2007 decision.  In 2007, the NLRB held that an employer could restrict, on a non-discriminatory basis, non-business use of its e-mail systems (e.g., for union-related solicitation or distribution).  Then-Member Liebman dissented strongly from this decision.  The primary basis for her dissent was that e-mail had become a prevalent way for employees to communicate with one another.  The NLRB's statements about technology in the workplace in J&R Flooring are consistent with her dissent.
4. Social media may be next.  As Member Hayes pointed out in his dissent, the decision is unclear whether posting of the remedial notice on social networking sites would be required.  If an employer communicated with employees through "tweats" on Twitter, for example, the decision might require the employer to "tweat" about the notice posting.

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During union organizing campaigns, employers are often confronted with complaints from employees that employee organizers are "harassing" them about signing union authorization cards.  Sensitized through years of training on laws prohibiting discrimination and harassment, an employer's first instinct is often to view such complaints under its harassment policy.  Employers sometimes also encourage employees to report "harassment" so that appropriate remedial action can be taken.

These instincts can lead to legal trouble for an employer during a union organizing attempt.  For example, in late 2008, the Boulder City Hospital found itself in a similar situation.  Two or more employees complained to their supervisor about "harassment" by other employees.  Specifically, the employees asserted that pro-union employees were soliciting them repeatedly to sign union cards.  The employer conducted no additional investigation after receiving these complaints.

In response to the complaints about harassment, the employer's CEO and Human Resources Director decided it would be a "good idea" to remind employees of the harassment policy the employer adopted well before any union organizing activity began.  This policy prohibited harassment and discrimination on the basis race, sex, religion, and other forms of illegal discrimination.  It didn't mention union activity.

The memorandum the employer posted said:  "Please be reminded that harassment or threatening behavior in any degree by or between employees will not be tolderated at Boulder City Hospital."  The memorandum then referenced the existing policies by name and number.  The memorandum concluded by saying:  "If you feel that you are being harassed or threatened in any way, you have the right to talk with Human Resources regarding your treatment."

The NLRB, in a 2-1 decision, ruled that the employer's memorandum was unlawful.  See Boulder City Hosp., Inc., 355 N.L.R.B. No. 203 (2010).  The majority reasoned that the posting, coming in the midst of union organizing activity and in the context of employee complaints about "harassment," violated employee rights under the NLRA.  Persistent union solicitation is protected even if it is annoying or disturbing to the employee being solicited.  According to the majority, a reasonable employee could interpret the memorandum as equating such protected solicitation with unprotected harassment, and inviting complaints to management about that conduct.

In his dissent, Member Hayes emphasized that (1) the memorandum was merely a reminder of the harrassment policy, and expressly referenced that policy; (2) the memorandum didn't reference union card solicitation or union activity at all; and (3) there was no evidence that the harassment policy was inconsistently enforced.  Member Hayes urged his fellow members to be "cognizant of employers' substantial and legitimate interest in maintaining and communicating a valid anti-harassment policy."

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NLRB Acting General Counsel Lafe Solomon announced yesterday that the Office of the General Counsel (which acts as the "prosecutor" in unfair labor practice cases) is implementing a program to streamline the handling of Section 10(j) cases that involve employee discharges during union organizing campaigns. Section 10(j) authorizes the NLRB to seek an injunction from a federal court in certain situations. In a discharge case, the injunction orders the employer to reinstate the employee pending the outcome of the NLRB’s administrative process.

The program's goal, Mr. Solomon said, is “to give all unlawful discharges in organizing cases priority action and a speedy remedy” so that employees may resume union organizing. Under the new initiative, potential 10(j) organizing campaign discharge cases are identified as quickly as possible at the regional level. Once identified, detailed procedures are outlined (pdf) by Mr. Solomon for regional offices to investigate and prioritize resources towards an organizing campaign discharge case. Board Chairman Wilma Liebman said  (pdf) that the Board has also revisited its procedures for 10(j) cases in order to expedite the litigation process.

The Acting General Counsel’s new guidelines are an interesting development for labor professionals for a number of reasons:

• First, the similarity to provisions of EFCA is unmistakable. EFCA would add language to the NLRB requiring the prioritization of unfair labor practice charges occurring during an organizing campaign, which would include unlawful discharges. As readers of this blog know, President Obama has commented directly on administrative efforts to make union organizing easier.
• Second, employment decisions during organizing campaigns are always fraught with substantial risks.  Disciplinary actions like terminations will be even more difficult now.  Indeed, during much of the 2000s, around 20 or fewer 10(j) cases were filed.  Employers should expect those numbers to increase.
• Finally, the sweep of these rules is substantial. What if the union abandoned its organizing drive? What if the employee doesn’t want reinstatement? Neither of these things, "in themselves," matters according to the Acting General Counsel’s memorandum.

The Acting General Counsel’s action underscores the importance of seeking out labor counsel during a union organizing campaign to assist in navigating potentially turbulent waters.

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The NLRB handed labor unions a helpful present just in time for the Labor Day weekend.  The National Labor Relations Act contains provisions that prohibit certain types of "secondary" activity.  For example, a union having a dispute with company "A" cannot picket the business of company "B" in order to force company "B" to stop doing business with company "A". 

In a 3-2 ruling released last Friday, the NLRB held that the union practice of displaying large, stationary banners in front of a secondary employer’s business (i.e., company "B") does not violate federal labor law. The Board, in Carpenters & Joiners of Am. (Eliason & Knuth of Ariz. Inc.), 355 N.L.R.B. No. 159, found that such a form of protest is merely persuasive, not coercive, and therefore does not run afoul of secondary boycott provisions contained in the NLRA.  

The case arose out of a labor dispute between the United Brotherhood of Carpenters and Joiners of America (the “Union”) and four construction-industry employers (the “primary employers”).  As part of that dispute, the Union placed anti-employer banners, which were 3 to 4 feet high and 15 to 20 feet long, in front of three secondary employers’ facilities. Union representatives held these banners stationary at distances of 15 to 1,050 feet from the entrances to the facilities but did not patrol the area, carry picket signs, or block entrances.

The NLRB general counsel and the secondary employers asserted that the banner displays violated federal labor law, which prohibits activities that “threaten, coerce, or restrain” commercial activity, arguing the displays were aimed at forcing the neutral employers to discontinue doing business with the primary employers. The Board disagreed. The majority examined the language of the NLRA and its legislative history and concluded that Congress did not intend the law to prohibit the display of stationary banners. According to the majority, such conduct is not comparable to other activities that have been found to be coercive, such as picketing. Moreover, the majority held that outlawing the banners would unnecessarily raise First Amendment concerns.

In a strongly worded dissent, the minority accused the majority of promulgating a “startling new standard” that goes too far by requiring employers to show that the union’s conduct either causes or could reasonably be expected to cause a disruption to the secondary employer’s operations. They contended the majority decision was not compelled by the language of the NLRA, legislative history, nor any First Amendment concerns, and goes against a strong body of contradictory precedent. At the end of the day, the minority said, the display of large banners is in fact coercive and is no different than other types of prohibited picketing.

By allowing the display of such banners, the NLRB now permits unions to target a broader range of businesses -- ones which have no collective bargaining relationship with the union -- and more freely exert economic pressure on them and the companies with which they do business.  This decision is likely to increase union protest power, creating additional opportunities for union secondary activity and the resultant need to plan for such conduct.  Finally, it remains to be seen whether the new standard the minority accused the majority of creating will be applied by the NLRB in future cases to further erode statutory protections for secondary employers. 

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Member Peter Schaumber (R) left the NLRB last Friday, August 27, 2010, at the expiration of his term.  Member Schaumber was nominated by President George W. Bush early in his first term, taking his seat on December 17, 2002.  He was designated the Chairman of the NLRB on March 19, 2008, a position he held until January 19, 2010.

Among other significant accomplishments, Member Schaumber served as the NLRB's Chairman during the 27-month period when it had only two members.  Working together with now-Chairman Liebman, the NLRB issued nearly 600 decisions.  However, the U.S. Supreme Court ruled that the NLRB did not have the authority to act with only two members, thus invalidating these decisions.  The NLRB was in the process of reviewing the cases impacted by this ruling as Member Schaumber's term expired.

As a result of Member Schaumber's departure, there are at least two significant questions labor professionals should ask:

• Who will President Obama nominate to replace Member Schaumber?   The President's prior nominations have generated substantial opposition in the business community.  The battle over the nomination of former SEIU lawyer Craig Becker is a good example.
• How will the NLRB handle the cases that remain open after the New Process Steel decision?  According the NLRB's online database, not all of these cases have been decided.  Without Member Schaumber on the NLRB, it is possible that the cases could now turn out differently. 

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Last Friday, the NLRB announced its decisions in four cases that were overturned by the U.S. Supreme Court's decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010).  This decision held that the two member NLRB that issued decisions in nearly 600 cases did not have the authority to do so. 

The first four decisions were issued by a three-member panel that included the two members that had originally ruled on the cases.  In each decision, the three-member panel affirmed the decision of the two-member panel.  In none of the four decisions was a dissenting opinion filed.

If this pattern holds, the primary effect of the New Process decision will likely be delay for the parties involved.  The term of Member Schaumber, however, expires at the end of this month.  It is unknown whether the NLRB will be able to process all of these cases in that time.  The NLRB has created a database of these cases for those interested in following the handling of them. 

The larger import of New Process may well be its impact on the nomination process.  Knowing that a Board with fewer than three members will be unable to act may encourage earlier resolution of disputes in the Senate over NLRB appointments.  

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As reported on this blog last month, the U.S. Supreme Court ruled that the Board did not have the authority to rule on cases with only two members. The Board has recently announced its plan to handle the remand of the cases that were decided by just two members, and that parties had appealed to the Supreme Court and the various federal courts of appeal.

A press release issued by the Board today reads:

"During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members. At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire."

Labor professionals should watch the Board's actions on these cases over the next few weeks. Member Schaumber's term expires in August, leaving only a few weeks for these cases to be handled in the fashion outlined in the Board's press release. If Member Schaumber is not reappointed, and if the cases are not resolved prior to the expiration of his term, the three member panel that will consider these rulings will no longer have as a majority the two members who initially ruled on the case as a two-member Board.

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The United States Supreme Court has held that the National Labor Relations Board does not have the authority to act when it has only two members. New Process Steel, L.P. v. NLRB, No. 08-1457 (June 17, 2010). From January 1, 2008 until early-April 2010, the Board had only two of five members. Members of the Board are appointed by the President and must be confirmed by the Senate. As a result of political deadlock between President Bush, and later President Obama, and members of the Senate, the three remaining seats could not be filled.

During this period of time, the two-member Board issued nearly 600 opinions in unfair labor practice cases before it. A party in one of those cases, New Process Steel, lost before the Board, and appealed, arguing that because there was only two-members on the Board when it ruled against it, the ruling was invalid.

The Supreme Court agreed in a 5-4 decision. In a technical analysis of the law, the Court majority determined that the Board always needs a quorum of three members to issue decisions.

The Court's ruling casts a shadow upon the nearly 600 decisions that the two-member Board issued during the 27 months it operated. In a press release, Board Chairman Liebman said:

“In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we [Chairman Liebmen and Member Schaumber] brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Labor professionals should keep a close eye on how the Board, which now has four members as a result of recess appointments by President Obama, will "rectify the situation." If a losing party in those cases sought additional review, the Board might just adopt the opinion of the two-member panel after additional consideration. After all, the two members who issued them, now-Chairman Liebman and Member Schaumber, are still on the Board.

On the other hand, the Board could revisit the questions decided and change its rulings in these cases. Member Schaumber's term will expire at the end of August 2010. Indeed, even if the Board were to act before August, with three Democratic appointees on the Board and only one Republican, the stakes involved in reopening any case could be high for an employer, depending on the circumstances.

Labor professionals should also watch for reactions by the Senate and the President. There are currently three nominations to the Board pending before the Senate, including two members currently serving under recess appointments by President Obama. The Court's decision may influence action on those nominations.

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Recently, graduate students at New York University who serve as teaching assistants filed a petition with the NLRB seeking a union representation election. Click here for the New York Times story. The Graduate Student Organizing Committee, part of the United Auto Workers Local 2110, submitted union authorization cards reportedly signed by more than half of the estimated 1600 graduate assistants at NYU.

The NLRB's response will be interesting to watch. In 2004, the NLRB ruled that graduate assistants were not employees and therefore did not have any rights under federal labor law. However, Wilma Leibman, who is now the Chairman of the NLRB, and former Member Walsh dissented from that conclusion. The dissenting opinion described the majority as "woefully out of touch with contemporary academic reality."

So, unless another case gets to the NLRB first on this question, the NYU graduate assistants' petition could well provide a test of whether the NLRB will reverse the 2004 ruling. Given the NLRB's procedures, however, don't look for such a ruling any time soon. It could be a couple of years before the case makes its way to such a decision point.

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As has been extensively reported in a number of news outlets, Pres. Obama used a process known as a "recess appointment" to place on the NLRB two of his three nominees. The first, and most controversial, is Craig Becker, an attorney who works for the SEIU. The second, and significantly less controversial, is Mark Pearce. Both of these appointees are Democrats. Pres. Obama's Republican appointee, Brian Hayes, was not appointed through the recess process.

That Pres. Obama chose the recess process isn't terribly surprising. The NLRB's website tracks all of the various NLRB Members since the NLRB started operations in 1935. Reviewing the list, one finds a number of recess appointments by previous presidents, including Presidents Carter, Reagan, Bush (41), Clinton, and Bush (43). Most recently, Pres. Bush appointed mainly Republicans to the NLRB, but also made a recess appointment of Dennis Walsh, a Democrat, in 2006.

The troubling part about the political football that the NLRB has become is the lack of predictability for employers. Decisions that are made during one administration are the prime candidates for reversal under the next administration. Indeed, the U.S. Supreme Court has even been called upon to determine whether the NLRB can issue decisions with only two members, as it has done since before Pres. Obama announced his nominees to the Board. Thus, the reality that labor professionals confront is one of unpredictability. We will see where the new NLRB takes the labor law, but many signs suggest that it will not be a very scenic trip for employers.

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President Obama's nominee to the NLRB, Craig Becker, failed to garner the support necessary to overcome a filibuster earlier today. Click here for the ABC News story. As a result of a "hold" placed on his nomination, under Senate rules 60 votes were required to confirm the nomination. Only 52 senators voted in favor of Mr. Becker.

It appears that Mr. Becker's nomination has become essentially a "proxy fight" over the Employee Free Choice Act (EFCA). Given some of Mr. Becker's writings, along with his work for the SEIU and the AFL-CIO, some senators are concerned that he will use the NLRB's administrative powers to implement significant portions of EFCA without a congressional vote. Mr. Becker's attempt to distance himself from these writings during his confirmation hearing was apparently not enough for the senators with concerns.

It is interesting to note some of the senators who voted against Mr. Becker's confirmation. Newly elected Scott Brown (R-Mass.) was one of those votes, as was Blanche Lincoln (D-Ark.) and Ben Nelson (D-Neb.). These votes would appear to be a signal of a lack of support for EFCA on the part of those who cast them. Indeed, assuming Senate Republicans stay united in their opposition to EFCA, the vote on Mr. Becker would suggest that EFCA does not have the requisite 60 votes to overcome a Republican-led filibuster.

Probably the most significant impact of the vote, however, is its impact on the NLRB as an institution. The NLRB should have five members. For the last couple of years, however, a deadlock on appointments to the NLRB has resulted in only two-members. Indeed, the delegation of power to these two members is currently the subject of an appeal to the U.S. Supreme Court, which challenges the legality of that delegation. As a result, in hundreds of cases, the rulings of the NLRB are in question.

The next move on Mr. Becker specifically, and the nominations to the NLRB generally, will be interesting. The President does have the power to make recess appointments to the NLRB, which has been done in the past. Whatever happens, one thing is for sure: the outcome will have a direct impact on the development of labor law for a number of years.

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The Senate Health, Education, Labor and Pension Committee voted yesterday on President Obama's nominee to the NLRB, Craig Becker. Mr. Becker's nomination has been controversial. The vote yesterday was 13-10 to confirm Mr. Becker. The vote split along party lines. Click here for the LA Times story. The nomination next moves to the full Senate. Senator McCain (R-Az.) has promised to again place a hold on Mr. Becker's appointment. If that happens, 60 votes will be needed to confirm Mr. Becker. All eyes will now be on newly elected Scott Brown (R-Mass.).

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After placing a hold on Craig Becker's nomination to the NLRB, Senator John McCain (R-Az.) and other Senators got their chance to question Mr. Becker in a confirmation hearing earlier today. Hearings on NLRB nominees are rare.

Of President Obama's three appointees, Mr. Becker has been the most controversial. He has strong ties to organized labor, having previously served as an in-house lawyer for the Service Employees International Union and the AFL-CIO. His published writings include assertions that the NLRB could impose "card check" recognition through its administrative process, bypassing the need for Congressional action.

During the hearing, Senators questioned Mr. Becker about, among other things, (1) recusing himself from cases involving the SEIU and (2) his past writings regarding the role of the NLRB in labor law reform. According to published reports, Mr. Becker responded that:

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Scott Brown, a Republican, won a Massachusetts Senate seat in a special election on January 19. He heads to Washington, D.C. as the 41st Republican senator, taking away the "filibuster proof" majority of the Democratic Party in the Senate.

What does Brown’s election mean for EFCA and the development of labor law at the NLRB?

Senator-elect Brown's campaign website contains no specific mention of EFCA. We haven’t found any quotes attributable to Senator-elect Brown about his position on EFCA.. The closest are columns like this one that suggest he will vote against EFCA.

Certainly, the path to EFCA passage is substantially less clear today than it was 36 hours ago. But, EFCA could appear in a number of different contexts, including as part of a different bill. Also, as our post yesterday suggested, many of the goals of EFCA could be achieved through NLRB action. President Obama may renominate Craig Becker to the NLRB, and Mr. Becker is an attorney for SEIU and the AFL-CIO.

What then should you do? Keep focused on the big picture, including the overall approach to union-related issues and to compliance with the NLRA. Sooner or later, President Obama's nominees to the NLRB will be confirmed and when that happens, the likelihood of change coming to some Bush Board precedent is significant.

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On January 15, 2010, NLRB Chairman Wilma Liebman presented at a continuing legal education seminar sponsored by Cornell University. According to a published report, she discussed a number of items, including the history of the Bush Board's approach to interpreting the NLRA, the on-going dispute over the two-member NLRB, and pending labor law reforms.

Of particular note was Chairman Liebman's comments about labor law reform. She noted that, for fundamental change to come to the NLRB, Congressional action was necessary. She went on to say that EFCA, which is the bill everyone is talking about these days, was not the kind of fundamental reform she is talking about. Rather, she identified a number of topics that need to be addressed, including the exclusion of large numbers of people from the coverage of the NLRA, the task of organizing new workers into unions in a volatile economic climate of constantly changing business ownership, obstacles presented by the distinction between mandatory and permissive subjects of bargaining, and the role of domestic and international labor standards in a global economy.

Chairman Liebman's comments highlight that, while EFCA is certainly a potentially major change in labor law, it does not represent the only legislative action that is possible. Her comments serve as a counterweight to those who maintain that congressional action isn't necessary to achieve the change in the NLRB that some believe is necessary.

Finally, the comments are a reminder that, particularly when President Obama's nominees to the NLRB are confirmed, the Board could very well take a significantly more activist approach to the NLRA than did the Bush Board. Use this time to prepare.

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