Full House

The Senate has confirmed president Obama's five pending nominations to the National Labor Relations Board. Three Democrats and two Republicans constitute the full five member Board. It is the first time "in a decade" that all five current members of the Board have been confirmed by the Senate.

NLRB and Social Media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge.

NLRB Member Flynn resigns

Over the holiday weekend, NLRB Member Terence Flynn resigned, effective July 24, 2012. Flynn has also recused himself from all agency business. Flynn has been accused by the Board's Inspector General of leaking non-public information.  Previous posts on accusations against Flynn are here.

NLRB Election rules suspended

The NLRB has "temporarily suspended" implementation of the new representation procedure rules in light of judicial decisions questioning the validity of the approval process. The Board has indicated it will process the petitions filed since the April 30, effective date under the new rule, and similarly indicated it is determined to reimplement the new procedures, and likely in short order.

GC Solomon issues "R" case guidance

NLRB Acting General Counsel Lafe Solomon issued a guidance memorandum concerning the NLRB's new procedures for handling representation elections. The new procedures take effect tomorrow, April 30th.

DC Circuit enjoins NLRB Notice requirement

A federal court of appeals in Washington has issued an emergency injunction against the NLRB's employer notice posting requirements which were scheduled to go into effect on April 30th. Previous posts here.

Rejected! Federal Judge nixes NLRB notice requirement

A federal district court in South Carolina has ruled the NLRB lacks the authority to promulgate the rule which requires employers to post a notice advising employees of their rights under the National Labor Relations Act. The opinion is here. The opinion is by District Judge David C. Norton who was appointed by by President George H. W. Bush. At first blush this seems to be a rather extraordinary reigning in of the NLRB's rule making authority.

Deadline!

On April 30 two important new NLRB rules become effective. First, all employers subject to NLRB jurisdiction will be required to have posted a notice advising employees of their rights under the National Labor Relations Act. Previous posts here. The poster can be downloaded for free here. Second, the Board will begin operating under a new set of rules for conducting representation elections. Employers would be well served to perform a current vulnerability assessment, including taking affirmative steps to be prepared to respond promptly to any union organizing activity in their workforce.

Flynn hires former IG

NLRB Member Terrence Flynn has hired a former DoJ Inspector General to defend him against ethics charges lodged against him.

Leak, and it ain't St. David's day

It seems one of the recess appointments to the NLRB has been accused of doing things he should not have done. Republican Terence Flynn is accused of leaking confidential information to two former NLRB members one of whom works for the National Association of Manufacturers, and the other who is a labor advisor to Mitt Romney. Rep. John Kline (R-MN) says the problem is that Flynn's a recess appointment. You can't make this stuff up.

Mitt - "Eliminate the NLRB"

Does a Republican presidential candidate really want to eliminate the National Labor Relations Board? Be careful what you ask for. Does he intend to repeal the NLRA, or just shift enforcement to federal courts? As we have noted before, plenty in the labor movement might welcome the ability to use economic coercion which the NLRA prohibits.

Court (mostly) upholds Notice posting requirement

A federal district court judge has ruled the NLRB lawfully implemented a rule requiring employers to post a notice of NLRB rights. The court noted, however, the failure to post a notice could not be a per se violation of Section 8(a)(1). The Board must employ a case by case analysis which should include a finding of interference or infringement upon rights protected by the Act. As a practical matter this provides wide leeway to find a violation in almost all circumstances. The court also rejected the rule's provision that a failure to post could toll the 10(b) limitations period because it conflicted with the statutory mandated period. The requirements become effective April 30.

Secondary boycotts are effective

Business advocates who would do away with the National Labor Relations Board should think about what happens if effective collective actions by unions, like secondary boycotts, were no longer prohibited.  After all, other advocacy groups find secondary pressure extremely effective.

Boeing and Lafe

The Seattle Times has an interesting story on Lafe Solomon and the Boeing case, some of the political aspects and pressures, and background on Solomon himself.

NLRB nominations

The White House has formally sent the nominations of Terence F. Flynn, Sharon Block, and Richard F. Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three received recess appointments in January. These recess appointments are controversial, subject of a congressional hearing, and being challenged in court.

Hill does Lafe

The Hill has an interesting piece on NLRB General Counsel Lafe Solomon and his handling of the Boeing case.

Changing the rules

Look for the NLRB to press forward on changes in the rules governing union organizing and elections. It will be a question of when, not of whether.

NLRB GC updates social media report

Acting NLRB General Counsel Lafe Soloman has updated his report on Social Media (January 24, 2012). The report can be accessed here. Our previous post is here.

NLRB strikes down presumption of wall to wall bargaining units

The National Labor Relations Board has extended its Specialty Healthcare (download here) bargaining unit rationale to a non-healthcare setting. In DTG Operations, Inc. (download here) the union petitioned for a unit of 31 rental service agents (RSA's) and lead agents (LRSA's) at an airport rental car facility. The Regional Director found the smallest appropriate unit was a "wall-to-wall" unit of "all 109 of employer's hourly employees." Because the union refused to go forward in the smaller unit, the RD dismissed the petition. In reversing the RD, the Board found the RSA's and the LRSA's shared a community of interests among themselves, but do not share an "overwhelming community of interests with the other hourly employees. This decision likely means the current Board will permit elections in small units which historically would not have been appropriate for collective bargaining. A labor organization can engage in piece-meal organizing, picking and choosing small groups of employees rather than undertaking an overall facility-wide effort. Advantage organized labor.