NLRA Impact on Non-Union Workplace Policies to Continue into 2013

At the Gibbons Second Annual Employment & Labor Law Conference last week, one panel discussion addressed the National Labor Relation Board’s (“NLRB”) recent activity, and offered a list of topics to watch in 2013. This blog post contains the highlights from that discussion as related to employer policies.

Of prime interest in our predictions for 2013 is the “recess appointment” issue. Just three weeks ago, the District of Columbia Court of Appeals in Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013) held that three 2012 recess appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s Recess Appointments Clause. As a result, the Court vacated the underlying Board decision, finding that the NLRB lacked the quorum necessary for it to take action. The Court’s decision could be viewed as invalidating hundreds of opinions rendered by the Board in 2012. But until either the Supreme Court rules on the “recess appointment” issue or other courts begin invalidating specific decisions, the NLRB is taking the position that its decisions are valid and enforceable. As such, employers must continue to scrutinize their policies and police enforcement in the wake of some of the most recent and controversial NLRB rulings.

Most recently, for example, the NLRB has concluded that language regularly found in employment policies unlawfully restrains workers’ rights under Sections 7 and 8 of the National Labor Relations Act (“NLRA”). By way of background, the NLRA promises employees the “right…to engage in…concerted activities for the purpose of … mutual aid or protection…” and deems it an unfair labor practice for an employer to interfere with such rights. The law encompasses the type of activity employees participate in when they are considering whether to act in concert with regard to terms and conditions of employment such as salary, work hours, and the like. Typically employees share and compare information about wages and workplace conditions, often accompanied by some griping about, and perhaps even disparagement of, their employer. Whether such exchange occur in the vicinity of the water cooler or on social media, the NLRB deems them protected for all workers, not just those in union workplaces, and will target policies that discourage or prohibit such discussions.

Thus, in Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371 (Case 34-CA-012421), the Board determined that an electronic posting rule that prohibited employees from making statements that “damage the company” or “damage any person’s reputation” violated the NLRA. Similarly, in Karl Knauz Motions, Inc., d/b/a Knauz BMW and Robert Becker (Case 13-CA-046452) the Board concluded that a rule encouraging “courtesy” in communications with customers or other employees violated the NLRA because it could prohibit statements of protest or criticism by employees. Finally, in Hispanics United of Buffalo, Inc. and Carlos Ortiz (Case 03-CA-027872), the company enforced its “zero tolerance” policy on bullying and harassment and terminated employees who had engaged in Facebook posts discussing which employees they believed were shirking their responsibility to the employer’s clients. Although the NLRB concluded that the comments posted on Facebook were not harassing or bullying, it further found that the NLRA authorized the employees to engage in the protected activity of defending criticism of their job performance.

But even before these decisions, in May of 2012, the NLRB issued its “Third Report” on social media, in which it discussed as invalid a number of policies impacting employee participation in social media and also included a policy it considered lawful. This Report, when considered with the cases discussed above and the numerous decisions made by Administrative Law judges as well as NLRB General Counsel Advice Memoranda, provides a roadmap for employers; not only should they be wary about enforcing their existing policies, but they should, at a minimum, be reviewing them for possible modifications. To be clear, even if the “recess appointment” issue results in a complete invalidation of the Board’s decisions last year, the Administrative Law decisions and the NLRB General Counsel Advice Memoranda are guidance in themselves. And there is no reason to believe the NLRB, even if it were required to “re-decide” these cases, would not continue down its current path.

For answers to questions regarding employer obligations under the NLRA, any of the NLRB’s recent decisions, or would like assistance in reviewing your policies, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

Kelly Ann Bird is a Director in the Gibbons Employment & Labor Law Department.
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