A Busy NLRB: 4 Key Developments in the Past Year

A Busy NLRB: 4 Key Developments in the Past Year Photo: Geraldshields11, via Wikimedia Commons

A lot has happened at the National Labor Relations Board over the last 12 months. Since August 2013, the board has seen plenty of new developments, from the high-profile U.S. Supreme Court ruling in National Labor Relations Board v. Noel Canning to the return of so-called ambush election rules and beyond. The board has handed down a number of important decisions, weighing in on everything from what constitutes a valid social media policy to the legality of discouraging negativity in employee handbooks.

A recent webinar from Squire Patton Boggs, “National Labor Relations Board (NLRB) Update—The Impact of Noel Canning, Employee Handbook Policies Under Siege and What’s Ahead,” provided a look back at a busy year. Below are four (out of many more) important developments for the NLRB that will continue to matter for the rest of 2014 and beyond:

1. The Noel Canning Case

Perhaps the most important thing to happen to the labor board this year didn’t occur in its offices—it happened at the Supreme Court. In its June Noel Canning ruling, the court decided that the president cannot constitutionally appoint government officials during congressional recesses, even if the Senate is meeting in small and brief pro forma sessions.

This means that several appointments to the labor board were invalid, and the decisions these board members made, such as the one adverse to bottling company Noel Canning, are null and void too. “Including the decision against Noel Canning, most estimates are around the order of 700 cases, some of which involved some very controversial issues,” said Daniel Pasternak, a partner at Squire Patton and a speaker in the webinar.

Some relevant cases pending in the federal court system already have been remanded back to the NLRB for rehearings, and the board announced on Aug. 4 that it had reapproved administrative and personnel actions made during the time the Supreme Court deemed there were too many unconstitutionally appointed members to have a quorum.

The NLRB will have to go back over some important decisions. Many believe that considering these cases anew will lead to the same old results, since the majority of board members are still Democrats. “The bottom line is, we’ll just have to wait and see,” Pasternak said.

2. Employee Handbooks Under Fire

Employee handbooks came under scrutiny in several NLRB cases decided in the past year. D. Lewis Clark Jr., another Squire Patton partner on the webinar, said the labor board has “emphasized that it is supposed to look at the policy as a whole and not cherry-pick language in order to find a violation.”

One of the quirkier cases in which the NLRB found an employee handbook contained illegal policies this year involved a bikini contest at a Hooters restaurant in California. Back in May, the board found that a waitress was fired illegally after she complained about the contest. In the ruling, an NLRB administrative law judge deemed the waitress’ comments to be protected concerted activity under Section 7 of the National Labor Relations Act. The judge also tore apart the company’s handbook, finding fault with many rules, including a provision that told employees to never discuss tips amongst themselves or with guests, and a provision that forbade them from disrespecting managers or other employees.

“Basically the concern was that the policy was written too broadly and it could be reasonably interpreted to restrict the ability to communicate with one another about terms and conditions of employment as well,” Clark said.

3. “Friending” Employees in Social Media Cases

Since August 2013, according to the webinar, the labor board has continued embracing social media, at least as a way of finding employers’ activities unlawful. In recent years, the NLRB general counsel’s office has released three different memoranda on social media use for employees, one of which, Pasternak explained, contained guidance on social media policies in the workplace. “The problem here is this guidance hasn’t proved to be very helpful at all,” he said.

Pasternak gave the example of a case decided in April against grocery retailer Kroger Co. of Michigan. The ALJ deemed illegal part of Kroger’s online communications policy that said employees should use a particular disclaimer when posting any work-related content online, claiming that a rule such as this would have chilling effects on the exercise of Section 7 rights.

Pasternak pointed out that the Kroger ruling is confusing because it runs counter to the NLRB’s own social media guidance, which states that companies may have legitimate needs to require disclaimers for employees posting about the company.

4. “Ambush” Election Rules Back From the Dead

In June 2011, the NLRB proposed rules that would accelerate the speed of union elections, much to the chagrin of business groups claiming that “quickie” or “ambush” elections are unfair. These rules died because of the quorum issue dealt with in Noel Canning. But in February, they rose from the grave. “The proposed rules will do several things to make organizing easier, quicker and frankly more challenging to oppose for employers,” said Clark.

The rules will shorten from months to weeks the time between when union petitions are filed and elections are held. Among other changes, the rules will also give unions more contact information for employees, limit employers’ abilities to raise new legal issues after preelection hearings and allow for electronic filing of union petitions.

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