After operating for many months with three members whose recess appointments have been challenged as unconstitutional, on July 31, 2013, the U.S. Senate confirmed a full slate of nominations to the National Labor Relations Board (NLRB or the Board), providing the Board with five confirmed members (three Democrats, two Republicans) for the first time in a decade. While the issue of the validity of the decisions issued by the Board after President Obama made the controversial recess appointments in January, 2012 is still pending before the United States Supreme Court in National Labor Relations Board v. Noel Canning (See Cook Brown attorney Steve McCutcheon’s blog post on our website, “U.S. Supreme Court Grants Review in National Labor Relations Board v. Noel Canning”) one thing is certain: the newly-constituted Obama Board is likely to continue on a path which will intersect with the interests of both union and non-union employers.
The NLRB is the federal agency that enforces federal labor law and is tasked primarily with resolving labor-management disputes and overseeing union elections. However, the rights guaranteed by Section 7 of the National Labor Relations Act to engage in “concerted activities for the purpose of collective bargaining or other mutual aid and protection” apply to all employees, union and non-union alike and Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with those rights. Under the Obama administration, the outgoing board greatly expanded the NLRB’s oversight of the policies and practices of non-union employers under the mantle of protecting non-union employees’ Section 7 rights. We can certainly expect to see more of the same from the newly-confirmed Obama Board, as well as a revival of the expedited election rulemaking process, and possibly a return to decisions issued by the Clinton Board, which were overturned by the Bush Board. Here’s a roadmap of what to expect.
Continued Scrutiny of Employee Handbook Policies
The outgoing board issued several controversial decisions striking down as unlawful various handbook policies for allegedly interfering with employees’ Section 7 rights to engage in concerted activities. Such decisions have rejected social media and confidentiality policies, as well as “overbroad” at-will employment policies. (See Cook Brown attorney Lisa Ryan’s Fall 2012 newsletter article “NLRB Rulings Impose Limits on Non-Union Workplaces.”) Under the new board, employers will need to continue to exercise caution in implementing or continuing workplace policies which “could” be read by employees to restrict their Section 7 rights, e.g., by restricting their right to communicate or complain about wages or working conditions. For example, through various decisions and advice memoranda, the Board has rejected the following types of policy provisions: (1) policies prohibiting social media postings which “damage the Company” or “damage any person’s reputation” or prohibit “disrespectful” or “other language’” which injures the employer’s image or reputation; (2) a blanket policy requiring employee-witnesses to maintain the confidentiality of workplace investigations; and (3) at-will employment policies which can be interpreted as waiving employees’ rights to seek to change the at-will policy through collective bargaining. In some instances, the Board has suggested appropriate alternative language, for example, in one case, the Board’s Division of Advice opined that a confidentiality policy which provides for an employer to determine on a case by case basis whether confidentiality is required in a specific instance would be appropriate. In another case, the Division of Advice opined that an at-will policy which stated that only the president of the company had the authority to make an agreement, in writing, for other than at-will employment was appropriate because it “encompasses the possibility of potential modification of the at-will relationship through a collective bargaining agreement that is ratified by the Company president.” In anticipation that the new Board will continue to carefully scrutinize and parse such policies, all employers should review their existing and proposed policy provisions for compliance with NLRB standards.
Expedited Election Procedures
In 2012, the outgoing board attempted to implement “quickie” election procedures which, among other things, would have limited pre-election adjudication and appeal of legal issues relevant to the election process and shortened the time between the direction of the election and voting, which would severely impact an employer’s ability to launch an effective campaign in response to the filing of an election petition. Although the outgoing board was stymied by a court decision which invalidated the new election rule on procedural grounds, it is likely that the new board will attempt to implement the expedited election rules again and, this time, will not be sidetracked by procedural defects.
A Return to the Past
As the composition of the NLRB changes from one Presidency to the next, it is typical for the Board to re-examine and reconsider decisions issued under the prior administration of an opposing political party. Thus, it is anticipated that the Obama Board will scrutinize and likely overturn at least two decisions of the Bush Board which, in turn, overturned prior decisions of the Clinton Board. In the first decision, the Bush Board held that an employer can maintain a policy which prohibits employees from using its email system for non-job related solicitations, including union organizing. In the second decision, the Bush Board overturned a decision issued by the Clinton Board which extended to non-union employees the right of unionized employees to have a representative present during investigatory interviews which the employee reasonably believes may lead to discipline.
In this climate, with the likelihood that the NLRB will continue to exercise its authority over non-union workplaces, all employers need to keep abreast of what actions the Board takes in the coming months and the next few years under the Obama administration.