National Labor Relations Board

NLRB Postpones Implementation of Notice Posting Rule

October 6, 2011

By Erin S. Torcello

Yesterday, the NLRB announced that it is postponing the implementation date of the workplace notice rule that was issued on August 30, 2011. As we previously reported, that rule requires private sector employers to post a notice advising employees of their right to join a union and of their other rights under the National Labor Relations Act. Employers subject to the rule were required to post the notice by November 14, 2011. The implementation date has now been moved back more than two months. Employers are not required to post the notice until January 31, 2012.  The NLRB’s stated reason for the extension is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

NLRB Modifies Unit Determination Standard in Non-Acute Health Care Facilities

September 14, 2011

By Erin S. Torcello

In its third significant case in a matter of days, the National Labor Relations Board overruled longstanding precedent and changed the standard for determining what constitutes an appropriate unit for bargaining in non-acute health care facilities. The Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, overrules Park Manor Care Center, a decision which stood for 20 years. In Park Manor, the NLRB applied a “pragmatic or empirical community-of-interest” standard for non-acute health care facilities, including nursing homes and rehabilitation centers, which encouraged larger bargaining units to avoid burdening health care facilities with many smaller units which could be represented by multiple unions. Larger units are also generally more difficult for unions to organize.

In Specialty Healthcare, the union petitioned to be certified as the bargaining agent for 53 CNAs. The employer argued that the group of CNAs was not an appropriate unit by themselves, and under Park Manor, the only appropriate unit was one which included all nonprofessional service and maintenance employees. The Board rejected the employer’s argument, finding that the pragmatic community-of-interest approach announced in Park Manor was obsolete, and that the traditional “community-of-interest” unit determination standard must be applied to non-acute health care facilities. Under the traditional community-of-interest standard, the Board considers whether the relevant groups of employees: 

  1. are organized into separate departments; 
  2. have distinct skills and training; 
  3. have distinct job functions and perform distinct work; 
  4. are functionally integrated; 
  5. have frequent contact with each other;
  6. are interchanged with each other; 
  7.  have distinct terms and conditions of employment; and 
  8. are separately supervised.

The Board went on to hold that if an employer asserts that a group of employees must be included in the petitioned-for a unit, the employer has the burden to show that there is an overwhelming community-of-interest that would justify enlarging the petitioned-for unit.

The implications of the decision are significant because unions will now be able to isolate particular job classifications and organize facilities on a piecemeal basis, increasing the likelihood of a successful organizing campaign and reducing the amount of resources necessary to successfully organize. The case also increases the probability that multiple units with different unions will be certified in a single facility.

Two Recent NLRB Decisions Erode Employees\' Right To Choose

September 13, 2011

By Erin S. Torcello

The National Labor Relations Board has had a busy few weeks. As we noted in late August, the NLRB approved a Final Rule requiring employers to post a notice of employees’ rights under the National Labor Relations Act. The Board also issued two significant decisions which will help protect unions from challenges to their majority status.

The first case, Lamons Gasket Co., overturns Dana Corp., a 2007 decision holding that when an employer voluntarily recognizes a union based on a showing of majority support, the employer has to post a notice of employees’ rights to petition for an election and challenge the union. Upon posting and a 30% showing, employees could then file a decertification petition within 45 days.

Chairwoman Liebman had made it clear that given the chance, Dana Corp. would be reversed. The opportunity presented itself in Lamons Gasket, where a Board majority simply overruled Dana Corp. Accordingly, the majority status of a union recognized voluntary by an employer may not be challenged by employees for a “reasonable period of time.” The Board defined a “reasonable period of time,” by adopting the definition used in Lee Lumber & Building Material Corp.; not less than six months, but no more than one year.

At the same time it decided Lamons Gasket, the Board decided UGL-UNICCO Service Company, which addresses whether an incumbent union should enjoy a period of time insulated from challenge to its majority status where there has been a change in employers due to a merger or acquisition. A long line of Board cases have gone back and forth on this issue.
In general, where there is a change in a unionized corporate entity due to a merger or acquisition, a successor employer that hires a majority of the bargaining unit employees must recognize and bargain with the incumbent union. However, the successor employer has no obligation to adopt the predecessor’s collective bargaining agreement, and may unilaterally set its own initial terms and conditions of employment while bargaining.

Moreover, ever since the NLRB’s decision in MV Transportation, an incumbent union enjoyed only a rebuttable presumption of majority status. The union was presumed to have maintained support of a majority of the bargaining unit employees. However, upon a showing that the union had lost such support, an employer could unilaterally withdraw recognition or a petition for election could be filed by employees or a rival union.

UGL-UNICCO Service overrules MV Transportation, and holds that following a change in corporate entity, an incumbent union’s majority support may not be challenged at all for a “reasonable period of time.” The Board went on to hold that a “reasonable period of time” depends on whether the successor unilaterally sets initial terms and conditions of employment. If the successor adopts the collective bargaining agreement in effect between the predecessor employer and incumbent union, the union may not be challenged for six months, beginning from the time of the first bargaining session. Where, however, the successor unilaterally sets its own initial terms and conditions of employment, the reasonable period of time will be a minimum of six months and a maximum of one year.

Board ALJ Finds Firings Based on Facebook Messages Violated NLRA

September 8, 2011

By Subhash Viswanathan

In an earlier post, we reported that the National Labor Relations Board issued a complaint in a case involving the discharge of several employees for posting Facebook messages related to a co-worker’s criticism of their work performance. The case subsequently went to trial before an Administrative Law Judge. On September 2, the ALJ issued an opinion finding that the firings violated the NLRA by interfering with the employees’ right to engage in “concerted activity for the purpose of … mutual aid or protection.”

The Facebook postings occurred after one of the discharged employees learned that a co-worker had complained about the job performance of several employees and had expressed her intent to take the complaints to management. The employee who learned of the criticism posted a message on her Facebook page soliciting comments from other employees about the complaining co-worker’s criticism, and used the co-worker’s name. Predictably, several employees responded expressing various negative opinions about the criticism, the complaining co-worker, and the difficulty of various aspects of their jobs. None of the employees made the posts during work time, and none of them used a work computer. The employer’s Executive Director subsequently met with the five employees and fired all of them for harassment and bullying in violation of the employer’s anti-harassment policy.

The main issue in the case was whether the conduct in which the employees had engaged was protected concerted activity within the meaning of the NLRA. Relying on analogous NLRB precedent, the ALJ noted that expressions related to defense of job performance are protected activity. In response to the employer’s argument that the activity was not “concerted” because it was individualized, the ALJ concluded that the activity was concerted because the employees’ Facebook messages were the first step toward group action to defend themselves against accusations they could reasonably believe would be brought to management. The opinion states that: “Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that [the complaining co-worker] might take her criticisms to management.”

Finally, the ALJ rejected the employer’s argument that it was merely enforcing its anti-harassment policy. The Judge concluded that the policy, which prohibited harassment based on protected characteristics, was not violated because there was no evidence the complaining co-worker was harassed, and no evidence she was harassed based on one of the protected characteristics listed in the policy.

NLRB Issues Final Rule Requiring Employers To Post Unionization Rights Notice

August 29, 2011

By Erin S. Torcello

In December 2010, we posted on the National Labor Relations Board’s (NLRB) proposed rule that would require private sector employers to post a notice advising employees of their right to join a union and of their other rights under the National Labor Relations Act (NLRA). On August 25, the NLRB adopted, by a 3 to 1 vote (Member Hayes dissenting) the Final Rule requiring the workplace notice. The Final Rule is scheduled for publication in the Federal Register on August 30 and will go into effect 75 days from that date, on November 14, 2011.

As we discussed in our earlier post, the notice will be an 11x17 inch poster, detailing employees’ rights under the NLRA. It also provides the NLRB’s contact information for use in the event an employee believes there has been a violation of the NLRA. The notice will have to be posted by November 14 both in hard copy at the worksite(s) and electronically on an internet or intranet site, if the employer customarily uses such electronic sites to communicate with employees about company rules and policies.

Despite the 7,000 comments received during the comment period, there were very few changes to the proposed rule. In particular, the Final Rule does not require that employers email the notices to employees or that the notices be printed in color. In a very small victory for management, the Final Rule does include language regarding an employee’s right to refrain from union activity.

The Final Rule sets forth three possible consequences for failure or refusal to post a notice. First, such failure may be grounds for an unfair labor practice charge under § 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining or coercing employees with regard to the exercise of rights granted under the NLRA. Second, failure to post the notice may extend the six-month statute of limitations period for filing an unfair labor practice charge, unless there is evidence the employee had actual or constructive notice that the conduct was unlawful. Third, where the NLRB finds a knowing and willful failure to post a notice, it may use the failure to post as evidence of unlawful motive in an unfair labor practice case. Initially, however, the NLRB has indicated that its focus will be on compliance, assuming that most employers who do not post a notice are simply unaware of the rule. In those circumstances, once the notice is posted, the case will be closed.

NLRB Regional Offices will provide employers with a notice poster at no charge, or the notice may be downloaded from the NLRB’s website. In addition, if 20% or more of an employer’s workers are not proficient in English, a translated version must be posted. Translated versions will also be available from the NLRB.

NLRB Addresses Additional Employee Social Media Cases

August 1, 2011

By Terry O'Neil

In an earlier post, we discussed how the NLRB is handling social media cases. Three recent cases addressed by the Board’s Division of Advice further illuminate the Agency’s view of cases involving discipline of employees for using social media to discuss matters related to their employment. In all three cases the Division of Advice concluded that complaints should not be issued because the employees did not engage in “concerted activity” protected by Section 7 of the National Labor Relations Act.

In one case, the Division of Advice determined that the employer lawfully terminated a bartender after she complained on her Facebook page that she had gone five years without a raise and was not able to share in the tips waitresses were receiving. According to the Advice memorandum, she further stated that she hoped her employer’s customers would “choke on glass after they drove home drunk.”

The Division of Advice noted that the test for concerted activity is whether the activity is “engaged in with or on the authority of other employees.” In addition, activity may be deemed concerted when it is the “logical outgrowth of concerns expressed by the employees collectively.” In this case, however, there was no evidence of concerted activity because the posting involved a discussion between the bartender and a non-employee, and there had been no employee meetings over the issues of tipping and raises. Nor did the Facebook communication grow out of any prior communication between employees at the establishment.

In another Advice Memorandum, the Division of Advice concluded that a non-profit residential home lawfully terminated an employee who posted several comments on her Facebook Wall about her work and her patients. According to the Advice memorandum, the employee commented that it was “spooky” working at night in a “mental institution” and that she was unsure if a resident was hearing voices. The Division of Advice found no concerted activity in the postings because they were made solely to non-employees. Moreover, they did not involve any terms and conditions of employment. Rather, the employee was merely communicating to non-employees about what was occurring at work.

Finally, the Division of Advice also issued a Memorandum in a case involving Wal-Mart. According to the memorandum, the employee posted the comment “Wuck Falmart” on her Facebook page. She also commented about “tyranny” in the store, including complaints about an Assistant Manager. Several co-workers responded to the complaints. For example, one thought the comments were humorous and another could not understand why the employee was so “wound up.” The employee received a one day suspension for the posting. The Division of Advice recommended the Board not issue a complaint because the employee was only airing an individual gripe as opposed to a complaint on behalf of others. Because the comments were limited to one person’s issues, there was no group action that could be considered protected concerted activity.

These cases stand in contrast to two cases we reported on earlier where complaints were issued. In those cases, the employees posted critical comments about working conditions, and the complaints involved communication with other employees who shared or supported the substance of the comments.

Union Organizing Development: NLRB Proposes Rule on "Quickie" Elections

June 30, 2011

By David E. Prager

The National Labor Relations Board has once again exercised its rarely used “rule-making” powers, this time to propose a shorter timetable for representation elections. On June 22, 2011, the Board published a notice of proposed rulemaking to change and tighten its procedures “prior and subsequent to conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining.”

The proposed rule:

  • Establishes electronic filing of election petitions and other documents (intended to speed up processing).
  • Requires pre-election hearings to begin seven days after a petition is filed (currently, up to two weeks).
  • Defers litigation of all “eligibility” issues if they involve less than 20 percent of the bargaining unit until after the election. (These issues would be decided post-election if needed.)
  • Eliminates pre-election appeals of rulings by NLRB Regional Directors.
  • Reduces the time in which an employer must provide an electronic list of eligible voters from seven days to two days.

These proposed procedures will permit much quicker elections, and, in some cases, could result in union representation elections within as little as two to three weeks after a union files its election petition. Under current practice, an employer has a 42-day time period to give employees its position on unionization prior to a vote. Many employers believe that this six-week period after an election petition is filed is critical to an employer’s ability to make its case against union representation (because the Union has typically been actively campaigning before it files the election petition). The Board’s proposed change appears to be purposefully designed to improve the odds of a favorable election outcome for unions, a view expressed in dissent by Board Member Brian Hayes.

Comments on the proposed rule from interested parties must be received on or before August 23, 2011. After the comment period, the Board may revise the proposed rule, or may issue it as a final rule as early as September 2011.

Contrasting Cases Illustrate NLRB\'s Position on Discharge for Use of Social Media

May 20, 2011

By Sanjeeve K. DeSoyza

Two recent cases show that whether the NLRB will issue a complaint in a case involving discharge for misusing social media may depend on the content of the “post” or “tweet.” In a departure from recent aggressive enforcement activity in the realm of social media, the National Labor Relations Board’s Division of Advice recently concluded that an Arizona newspaper’s termination of a crime and public safety beat reporter for inappropriate and offensive “tweets” was not a violation of federal labor law. According to the Division of Advice’s April 21, 2011 Advice Memorandum, The Arizona Daily Star had encouraged its reporters to open Twitter accounts and “tweet” on newsworthy stories to reach a greater audience and improve traffic to the newspaper’s website. The reporter opened an account, identified himself as a Daily Star reporter, and began “tweeting” on various subjects and stories. After posting a sarcastic remark about his “witty and creative” editors, he was instructed by management not to air his grievances or comment about the newspaper in any public forum. Although he abided by that restriction, he went on to post several crass and controversial tweets about his public safety beat, including the following: (i) “You stay homicidal, Tucson. See Star Net for the bloody deets[;]” and (ii) “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” He also posted a derisive tweet about the “stupid people” at a local TV station, prompting a complaint from the station to the Daily Star.

The newspaper suspended and eventually terminated the reporter based on these tweets. The termination notice stated that he had repeatedly disregarded guidance “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.” The reporter responded by filing a charge with the Board, alleging that his termination violated his right to engage in protected “concerted activity for the purpose of…mutual aid and protection” under Section 7 of the National Labor Relations Act, which can include speech about the terms and conditions of employment. The case was submitted to the General Counsel’s Division of Advice for an opinion as to whether the termination had violated the Act.

In its Advice Memorandum, the Division of Advice found no violation because the reporter was terminated “for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity.” In finding the tweets to be neither protected nor concerted, the Division of Advice noted they neither dealt with the terms and conditions of employment nor attempted to involve others in any employment-related issues. Significantly, the Division of Advice acknowledged that several warnings by management to the reporter against making negative public comments about the newspaper could be interpreted as unlawfully restricting Section 7 rights. The statements did not rise to the level of “orally promulgated, overbroad rules”, however, because they were communicated solely to the complaining reporter in the context of discipline and in response to specific misconduct, and were not communicated to other employees or published as new rules.

In contrast, earlier this month, the Board’s Regional Director for Region 3 issued a complaint against a not-for-profit organization, Hispanics United of Buffalo, Inc., in a case where several workers were allegedly discharged for postings made on one of the worker’s Facebook pages. There, unlike the Arizona Daily Star case, the communication at issue apparently contained direct references to employee terms and conditions of employment. According to a public statement about the case issued by the Board, one employee posted on her Facebook page a co-worker’s comments which were critical of employee performance generally. Other employees then responded to that post with comments which complained about workload and staffing issues. The employer discharged those employees, contending their comments were harassment of the co-worker mentioned in the initial post. The complaint alleges that the postings were protected concerted activity under Section 7 of the NLRA because they involved communications between co-workers about their terms and conditions of employment, including job performance and staffing levels.

As these two cases show, the application of federal labor law to employer-promulgated social media policies and rules is a new and rapidly evolving area of law. In fact, the Board’s Acting General Counsel recently issued a memorandum instructing all Regional Directors to submit all cases involving employer social media policies to the Division before taking any action because of the absence of precedent in the area and the policy issues involved. Given the Board’s heightened interest in safeguarding employees’ Section 7 rights against overbroad social media policies and the relatively uncharted territory at play, employers should seek the assistance of counsel before implementing or disciplining employees under such policies.

NLRB Acting General Counsel Continues Focus on Expanding Remedies

December 28, 2010

By Subhash Viswanathan

Last month, we posted on the NLRB’s renewed focus on remedies, including the use of federal court 10(j) injunction proceedings in cases involving discharges of union organizers. Last week, the NLRB’s Acting General Counsel, Lafe E. Solomon, issued a memorandum to Regional Directors discussing other remedies they should seek in cases involving alleged employer unfair labor practices committed during a union organizing campaign. The expressed rationale for this initiative is that stronger remedies are often required for unfair labor practices committed during a union organizing campaign in order to ensure a fair election. One cannot help but wonder, however, if the Board’s new-found emphasis on remedies related to organizing campaigns is not designed to compensate for the Obama administration’s inability to fulfill its promise to its union supporters by passing the Employee Free Choice Act.

One of the alternative remedies would require a member of management to read the Board’s notice of violation to all employees (or have the Board Agent read it in the presence of a management employee), instead of simply posting it on the bulletin board. The Acting General Counsel believes the information in the notice is more likely to reach all employees if it is read to them, and that a personal reading “places on the Board’s notice the imprimatur of the person most responsible” for the violation. In other words, the employees are more likely to think the notice means something if it is read to them by a member of management.

Another alternative remedy on which the memorandum focuses is permitting union access to employees in cases which involve unfair labor practices which have an adverse impact on employee-union communication. The memorandum concludes that in such cases, the appropriate remedy may be to allow the union to post information on the employer’s bulletin board, or to provide the union with the names and addresses of employees so that it can communicate with them directly. The memorandum also concludes that in rarer cases, the best remedy may be to permit the union to hold captive audience meetings with the employees as often as the employer does so, or to allow the union access to employees in non-work areas during non-work time.

When will the Regional Directors be justified in seeking such remedies? The memorandum suggests that whenever a Regional Director has a discharge case warranting a 10(j) injunction proceeding, a notice-reading remedy should be sought. In addition, the memorandum appears to leave little doubt that the notice-reading remedy should be considered in cases involving so-called “hallmark violations,” cases involving threats of discharge, layoffs, or plant closure. But it goes much farther, and discusses at length how lesser violations, such as grants or promises of benefits, solicitation of employee grievances, and improper employer interrogation or surveillance can have a severe impact on employee free choice. The memorandum appears to encourage the Regional Directors to consider seeking the notice-reading remedy in all cases where such typical 8(a)(1) violations are “serious.” It also states broadly that: “When the employer’s unfair labor practices interfere with communications between employees, or between employees and a union, Regions should also seek union access to bulletin boards and employee names and addresses.” Nowhere does the memorandum explain what types of violations are those which interfere with communication. Presumably, an employer’s enforcement of an improper no-solicitation, no-distribution policy would be sufficient.

Only time will tell whether these alternative remedies are used by the Regional Directors in unusual cases when needed to remedy serious employer unfair labor practices in order to obtain a fair election, or are used routinely in an effort to give unions a leg up in organizing campaigns. In the meantime, the threat of these alternative remedies is yet another reason for employers to be extremely careful when responding to union organizing campaigns and to train their managers and supervisors to avoid committing unfair labor practices.

NLRB Proposes Rule Requiring Employers to Post Employee Rights Notice

December 23, 2010

By Peter A. Jones

Providing further evidence that the Obama National Labor Relations Board will be highly activist and pro labor, the Board has proposed a new rule  which would require employers to post a notice informing employees of their National Labor Relations Act (“NLRA”) rights, including the right to: organize a union; form a union; bargain collectively through a union representative; and engage in concerted activity with other employees.

The Board justifies the rule as necessary based on presumption that  most employees are unaware of their rights under the NLRA to engage in protected concerted activities and form unions. The Board believes that requiring a notice posting by all employers will inform employees of their rights and will also dissuade employers from engaging in unfair labor practices under the NLRA.

The proposed rule would require every employer to post an 11 by 17 inch poster, and distribute the notice electronically if the employer customarily communicates with employees electronically. Concerning the content of the notice, the Board has proposed using language adopted by the Department of Labor (“DOL”) for its rule requiring Federal contractors and subcontractors to post a notice of employees’ rights under the NLRA. According to the Board, using DOL’s posting also would allow employers who have already posted DOL notices to be in compliance without posting a new notice.

Proposed sanctions for employers who fail to comply with the rule include treating the failure to comply as an unfair labor practice under the NLRA. The Board has also proposed tolling the NLRA’s six month statute of limitations on the filing of an unfair labor practice charge if the employer fails to post the required notice.

Republican Board Member Brian Hayes has dissented from the proposed rule and believes the Board lacks statutory authority to promulgate it. Hayes also believes the Board lacks the authority to impose the proposed remedies.

The proposed rule is subject to a sixty day comment period. Public comment on the proposed rule can be submitted electronically to, or by mail to Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, DC

Termination of Employee for Facebook Postings Results in NLRB Complaint

November 17, 2010

By Subhash Viswanathan

The National Labor Relations Board (“NLRB”) recently filed a complaint against American Medical Response of Connecticut, Inc. (“AMR”), alleging that AMR violated the National Labor Relations Act (“NLRA”) by discharging an employee for posting comments on her Facebook page that were critical of her supervisor. In addition, the NLRB’s complaint alleges that AMR’s social networking policy constituted an unlawful restriction on employees’ rights to communicate with one another about their terms and conditions of employment and otherwise engage in protected concerted activity under the NLRA. A hearing before an Administrative Law Judge is scheduled with respect to the NLRB’s allegations on January 25, 2011.

AMR’s Employee Handbook included a Blogging and Internet Posting Policy that prohibited employees from: (1) posting pictures of themselves which depict AMR in any way unless written approval from the Vice President of Corporate Communications is granted; and (2) making “disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” According to the NLRB complaint, an AMR employee named Dawnmarie Souza (“Ms. Souza”) “engaged in concerted activities with other employees” on November 8, 2009, by criticizing her supervisor on her Facebook page. According to a press release issued by the NLRB that accompanied its filing of the complaint, Ms. Souza’s criticism of her supervisor drew supportive responses from her co-workers, which resulted in Ms. Souza making additional negative comments about her supervisor on her Facebook page. Ms. Souza was discharged from her employment with AMR on or about December 1, 2009.

In the complaint, the NLRB alleges that AMR interfered with, restrained, and coerced its employees in the exercise of their right to engage in protected concerted activities, by promulgating its Blogging and Internet Posting Policy and by discharging Ms. Souza. The NLRB also alleges that AMR discriminated against Ms. Souza for her protected concerted activity by discharging her. According to the NLRB’s press release, the NLRB is taking the position that AMR’s Blogging and Internet Posting Policy contains unlawful provisions, including: (1) the provision that prohibits employees from making disparaging remarks about AMR or supervisors of AMR; and (2) the provision that prohibits employees from depicting AMR in any way without permission.

The NLRB’s position regarding the unlawfulness of AMR’s social networking policy appears to signify a departure from a recent opinion issued by the NLRB General Counsel’s Division of Advice on December 4, 2009. In that opinion, the Division of Advice considered an employer’s social networking policy that prohibited, among other things, “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” The Division of Advice concluded that the policy, as written, was lawful because employees could not reasonably construe the policy as prohibiting the types of concerted activities protected by the NLRA. The Division of Advice also found no evidence that the policy was promulgated in response to union organizing activity or was applied for the purpose of discouraging union organizing activity.

Although a hearing has not yet been held in the AMR case and a decision has not yet been rendered, the issuance of a complaint in that case indicates that the NLRB will closely scrutinize employer policies that potentially restrict an employee’s right to discuss terms and conditions of employment through social networking sites. Accordingly, all employers (regardless of whether their employees are unionized or not) should take this opportunity to review their social networking policies, and amend those policies to ensure that there is no language that could reasonably be construed by employees as prohibiting concerted activities relating to terms and conditions of employment. Employers who are contemplating the promulgation of a social networking policy should make sure to craft the language of the policy carefully to reduce the risk that the NLRB will find the policy to be an unlawful restriction on employee rights.

Recent NLRB Policy Changes Focus on Remedies

November 9, 2010

By Erin S. Torcello

After much anticipation regarding what the reconstituted National Labor Relations Board’s agenda would be, the past month has revealed that one of the Board’s and the Acting General Counsel’s priorities is revamping a number of the Board’s policies on remedies. Those changes are discussed below.

Interest Awards

In late October, the Board issued a decision that changes a long-standing remedial policy on how interest on monetary awards is calculated. In Kentucky River Medical Center, 356 NLRB No. 8, the Board unanimously held that interest on backpay and all other monetary awards will be compounded on a daily basis. This is a break from its previous policy that interest was calculated on a simple basis.

The Board concluded that “compound interest better effectuates the remedial policies of the Act than does the Board’s traditional practice of ordering only simple interest and that, for the same reasons, interest should be compounded on a daily basis, rather than annually or quarterly.” The Board justified its change in policy by pointing to the “norms” in private lending practices, as well as the IRS’ policies regarding compound interest. This case applies retroactively to all pending cases, no matter what stage they are in, unless doing so would be manifestly unjust.

Remedial Notices

Another long-standing Board policy required the posting of paper notices of violation in an appropriate physical location within the employer’s plant or office. The Board’s decision in J. Picini Flooring, 356 NLRB No. 9, alters this policy by requiring that employers who customarily communicate with employees using electronic means (i.e. email, internet, intranet), must post remedial notices using those same electronic means. The Board reasoned that in order to achieve the remedial goal of posting a notice, “notices must be adequately communicated to the employees or members affected by the unfair labor practices found.” The Board found that while “traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.”

10(j) Injunction Initiative

On September 30, 2010, the NLRB’s Acting General Counsel, Lafe E. Solomon, announced an initiative to strengthen the Agency's response to “nip in the bud” cases with a more streamlined and efficient 10(j) injunction procedure. Solomon characterized “nip-in-the-bud” cases as those where a pro-union employee is terminated during the course of a union organizing drive, and the discharge thereby “‘nips in the bud’ all of the employees’ efforts to engage in the core Section 7 right to self-organization.” The new procedure adopts the following timeline:

  • Upon the filing of a charge, the Regions must identify potential 10(j) organizing campaign discharges.
  • The lead affidavit should be taken within 7 calendar days from the filing of the charge and the charging party’s evidence should be obtained within 14 calendar days of the filing of the charge.
  • Where the evidence obtained from the charging party “points to” a prima facie case on the merits, the Region must notify the employer that it is considering 10(j) and request a position statement. The position statement must be submitted within 7 calendar days of the written notification.
  • The Region must make a determination of the case on the merits within 49 days from filing, and a decision regarding whether 10(j) relief is appropriate should be made at the same time.
  • The Region must then submit all meritorious 8(a)(3) discharge cases to the Injunction Litigation Branch (“ILB”) within 7 days of the merit determination.
  • Once the ILB receives the case, it is reviewed and the ILB makes a determination within 2 business days as to whether 10(j) relief is warranted.
  • The Acting General Counsel then determines whether he agrees with the ILB’s determination, and his authorization must be submitted within 2 business days.
  • The case is submitted to the Board for final review and approval. Once the Board approves, the Region must file the 10(j) papers with the appropriate District Court within 2 business days.