A number of people asked me about Fox News and other discussions this week about an “out of control” NLRB. I have linked to a Fox story yesterday on a new Congressional Report that calls the NLRB a “rogue” agency. ( http://www.foxnews.com/politics/2012/12/13/congressional-report-accuses-nlrb-advocating-for-big-labor/ ) I have also linked to the Staff Report. (http://oversight.house.gov/wp-content/uploads/2012/12/NLRB-Report-FINAL-12.13.12.pdf ).

I have not going to comment about whether the NLRB is a “rogue agency,” but this Report and the Fox coverage did not cover much new ground for labor law professionals. The NLRB is structurally designed to support unions and unfair labor practice charge resolutions tend to favor union complainants… in a big way. Consider the NLRB Boeing case. Need I say more?

The current NLRB is extremely union friendly and has changed a great deal of precedent in a brief three and one-half years and probably plans to change more.

 Regulation of Social Media, including a wide range of Confidentiality policies, finding rules like these to be unlawful:

• Employees should not release confidential guest, team member or company information
• Employees should not “reveal non-public company information on public sites”
• Employees should not post photos, music, videos and personal information of others without obtaining the owner’s permission and must ensure that the content can be legally shared
• Employees should not use the employer’s logos and trademarks for non-commercial purposes
• Employees should not make “offensive, demeaning, abusive or inappropriate remarks online”
• Employees should not make “disparaging or defamatory” comments

 Officials of the NLRB declared key phrases in traditional Employment-at-Will policies to be unlawful in two cases with one ALJ holding that the employee’s at-will status “could not be amended, modified or altered in any way” was unlawful because “[c]learly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights [to engage in PCA].”

 The NLRB held a hotel chain’s “No Off-Duty Access” rule to be unlawful. Under the NLRB analysis, a No Access rule is now valid only if three enumerated conditions are met.

 In two cases, the NLRB addressed the lawfulness of employer rules requiring Courtesy and Decorum on the part of employees, and came to opposite conclusions. Employers may still issue basic employee conduct standards provided those standards are narrowly and carefully written. Policies must now be specific.

 The NLRB confirmed the Specialty Healthcare decision allowing “micro-units” in union representation elections.

 The NLRB watered down the presumption favoring on-site representation elections.

 Allowed Back pay eligibility for undocumented workers

 Found working leads to be non supervisors in an election setting.

A number of important NLRB precedents are considered in jeopardy, including:
• Right to deny union access to systems/property
• Prohibiting personal e-mails on electronic system
• Disqualifying disinterested “salt” applicants
• Confining Weingarten rights to union employees
• On-site manual balloting
• Excluding temporary employees from unit

So what do we suggest? Well, for a start….

1. Recognize that you will be much more likely to experience Objections and unfair labor practice charges in any election campaign. You simply do not enjoy as much freedom of communication as in the past. Retrain supervisors and get serious about improving communications and creating an environment where employees do not feel that they need a third-party advocate between them and management.

2. Review and Revise Confidentiality, Investigation, Electronic Communications, Professionalism, Conduct, No Solicitation/No Distribution and Property Access & Security policies and procedures.

3. Train supervisors about the burgeoning number of employee actions found to be “Protected Concerted Activity.” NLRB new Concerted Protected Activity Site: http://www.nlrb.gov/concerted-activity