What Should I Think About TV Coverage This Week and the New Congressional Report On the NLRB

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

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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