On January 25th the NLRB issued its second lengthy memo on Social Media use by employees. Like the first report, it is disjointed, poorly organized, and leaves employers with more questions than answers. In this 25-minute video Don Phin goes over the learning that can be gleaned from the report. This is a video that applies to every employer!
Citing concerns about delays in processing grievances through parties’ contractual 
grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances. To see the press release and additional information, go to http://www.nlrb.gov/news/acting-general-counsel-seeks-changes-deferral-policy.
Very simply, the NRLB non-employee disputes are taking too long to go through the delegated arbitration process and so the Board will be deciding these cases directly to speed up resolution. It will be interesting to see how they will be able to take on this burden with a tight budget. Whether you agree with the approach or not, this is yet one more pro-union move by the Administration.
It seems as if the National Labor Relations Board has lost touch with reality. In case after case, it has protected employees hell bent on complaining about everything from work assignments to tucking in their shirt or having to take their hat off. They can complain about poor marketing campaigns, curse out their bosses, wear shirts that defame the company, and do about everything else possible to not do their jobs. Whether you consider the administration to be in the pocket of the unions or not, they’ve taken a very aggressive stance at the NLRB. Consistent with recent DOL practices, the NLRB has shown their litigation muscles and paraded their record enforcement in terms of fines, penalties, and back wages recovered.
Collectively these agencies are particularly aggressive when it comes to union organizing, wage and hour, health and safety, and employee misclassification (whether exempt vs. non-exempt or employee vs. independent contractor). Critics claim that this litigious approach is nothing more than a money-making opportunity, figuring the more auditors and enforcement personnel they hire, the more revenue they can bring in that exceeds the cost of those hires. The aggressive approach of the DOL, NLRB, and OSHA has not missed attention in the press. For example, there was a great deal of media coverage when the NLRB made its effort to prevent Boeing from moving its manufacturing plant out of Washington State.
What’s an employer to do?
1) Stay on top of the law whether you have 15 employees or 1,500. Ignorance of the law is not an excuse that will garner any sympathy.
2) Where possible, purchase employment practices liability and other coverages to mitigate against these risk exposures.
3) Use the proper strategies, tools, and training to make sure you comply with today’s myriad of laws. There is a ton of great tools on HR That Works.
4) Don’t hesitate to rely on expert assistance the second you realize you don’t know what you’re doing. This is a complicated area even for the lawyers!
The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.
Most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction.
The National Labor Relations Board has adopted a final rule amending its election case procedures to reduce unnecessary litigation and delays. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.
The rule is primarily focused on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.
Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.
Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.
In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.
Chairman Mark Gaston Pearce and Member Craig Becker voted in favor of the rule (Democrat appointees), which was prepared following a public meeting in late November. Member Brian Hayes (Republican Appointee) dissented from the Notice of Proposed Rulemaking and voted at the November 30 public meeting against proceeding with publication of a final rule. The final rule provides the opportunity for publication of a separate dissenting statement prior to the effective date of the rule.
In recent years, only about 10 percent of NLRB election cases have gone through the hearing process. Such elections have been held on average 101 days after the election petition was filed with a regional office.
“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said Chairman Pearce. In other words, accelerate the unionization process.
The amendments to the election case procedures in the new rule were drawn from a more comprehensive proposal put forward by the Board in June. More than 65,000 comments were submitted following publication of the broader proposal in the Federal Register. In a discussion introducing the new rule, the Board majority explained that it was holding for further deliberation parts of that proposal that had generated the most debate while moving ahead with parts considered relatively “less controversial.”
Click here to read the final rule and introduction, and here to read a description of the amendments.
Click here for website version.
Over 65,000 written comments were received by the NLRB in response to its proposed ambush election rules, which would result in holding elections as quickly as ten days after the filing of a petition. The Board had open hearings for two days in July to hear comments from business and labor about the proposed rules. In our July issue of the Employment Law Bulletin, we predicted that while the Board would be very hospitable and act like it truly cared about concerns expressed by the business community, it would move forward with establishing the rules in the manner they were proposed.
In an effort to issue the final rule before the Board has only two members and therefore would be unable to do so, Board Chair Mark Pearce held a vote among the three Board members–himself, Craig Becker and Brian Hayes–yesterday, November 30, 2011, to approve a scaled-back version of the original ambush election rules. (Becker’s term expires at the end of December. Hayes, a Republican and former Senate staffer, has aggressively and publicly opposed the Board’s notice posting rule and these proposed rules.)
As a result of yesterday’s 2-1 vote in favor of changing the Board’s election rules, some but not all of the rules in the original proposal are now slated for a final vote, some time before Becker’s term expires and after the final rules are circulated to all three Board members.
Yesterday’s vote represented at least a brief retreat from the original rules, which would have resulted in union elections being held as quickly as ten days after the filing of a petition. Instead, the new rules narrow the scope of pre-election hearings, virtually eliminate pre-election appeals, and strike down the current rule providing that a vote cannot be held sooner than 25 days after the Board’s Regional Director issues a Direction of Election. Although the final rule is a significant step back from forcing a union vote within ten days of a petition, it certainly opens the door for Regional Directors to schedule union votes much sooner after the petition is filed. Indeed, the clear intent of the rule is to encourage elections within the first 25 days after the filing of a petition, much sooner than the current average of 38 days between the filing of a petition and a union vote.
Member Hayes has spoken out against the Board’s attempt to implement these rules without a clear quorum and has even hinted that he may resign prior to the final approval of these rules, which would prevent a two member Board from implementing what’s left of the ambush rules.
As we have stated previously, we expect ambush election rules–in some form–to become effective, whether it’s a result of this Board’s action or actions by the Board after new appointees are seated. Either way, whatever action this Board takes is likely to be challenged in court.
Article courtesy of Worklaw® Network firm Lehr, Middlebrooks & Vreeland, P.C.
The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
The new effective date of the rule is Jan. 31, 2012.
The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.
Member Brian E. Hayes dissented from the adoption of the final rule. For this reason, he agrees with any postponement of the effective date of the rule.
Most private sector employers will be required to post the 11-by-17-inch notice, which is available at no cost from the NLRB through its website, either by downloading and printing or ordering a print by mail.
For further information about jurisdiction and posting requirements, please see our Frequently Asked Questions, which will be updated frequently as new questions arise. For questions that do not appear on the list, or to arrange for an NLRB presentation on the rule, please contact the agency at questions@nlrb.gov or 866-667-NLRB.
A National Labor Relations Board Administrative Law Judge ruled on September 28th, 2011 that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity.
The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first, the employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Though the salespeople did not directly complain to their employer that the food offerings could affect their commissions, they discussed with each other that their sales could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to and commented on the Facebook page.
On the same day, the salesman posted photos of an accident that had occurred earlier involving a vehicle from an adjacent dealership that was accidently driven into a pond. Both dealerships are part of the same ownership group. Judge Biblowitz found that while the postings involving the sales event and the subsequent exchange of comments with other employees was protected activity, the postings involving the accident were not. Further, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act.
Regarding the employee policy, Judge Biblowitz found that certain paragraphs were overly broad and tended to chill employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. Though the employer had changed the policy prior to the hearing, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.
Inc. Magazine did an excellent article on the history of the workplace you can read by clicking here.
Many, many an employer has given me grief over the NLRB’s new posting requirements. Whew. “I feel ya” I tell them. Then I tell them it’s the law and I didn’t do it! So yes you have to post it. Just do it. You can tell your employees the Obama administration required you do so, which is a fact. Half of them will be happy about the idea and the other half will think it’s ridiculous. Or something like that.
Federal Contractors are already familiar with this posting requirement. The justification for having them post it in 2009 was:
“The Department of Labor’s regulations implement Executive Order (E.O.) 13496 signed by President Barack Obama on January 30, 2009. E.O. 13496 advances the Administration’s goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector and engaged in activity related to th
e performance of Federal government contracts are informed of their rights to form, join, or assist a union and bargain collectively with their employer. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.” Really?? So this is saving the government money. Good thing. They need it.
Here’s the justification for the current NLRA posting requirement:
“The Board believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance by employers and unions.” Or… more union campaigns.
After getting employer feedback the NLRB granted a few concessions with the notice: “The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.” Nice of them. So post it in black and white.
Since many have asked; here’s what the penalty is for not posting it
Q: What will be the consequences for failing to post the Notice?
The NLRB does not audit workplaces or initiate enforcement actions on its own. A failure to post the Notice would need to be brought to the Board’s attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.
If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
Q: Can an employer be fined for failing to post the Notice?
No, the Board does not have the authority to levy fines.
Here’s the reality: This agenda is about Power. Politics always is. For the 8 years of the Bush administration employers got most of the breaks. Now it’s the employees turn. The way blue collar workers have always exercised their rights is through unions. Your daddy or granddaddy may have been in one. I continue in my belief that there are good and bad unions, employees, bosses, and…yes, even politicians. Ultimately it is the market place that should determine who succeeds in business and who does not. All employers face this pressure, including the political ones. What are you going to do different than your competition to rise above all of it is my question?!
Here’s a last thought: Imagine if the government required an Employer Rights Notice Under What is Left of Capitalism posting like the one I created. I think I’m starting to sound like Ayn Rand…and I used to be an employee rights attorney! What’s that tell you? Enough already. Fact is, while this agenda may garner votes it does little to help people grow in their careers and that my friends is the main reason unions have been fighting to hold on for survival. Post my poster at your own risk. Maybe you just leave on the bulletin board at the country club.
