NLRB—A Summary of a Very Busy 2011—And What About 2012?
The NLRB was very busy in 2011, taking many actions to try to make it easier for unions to organize and bolster worker rights. This post summarizes some of the key NLRB developments over the past year as we head into 2012.
New Posting Requirement
During 2011, the NLRB unsuccessfully tried to implement a new posting requirement. In August, the Board enacted a rule requiring all employers covered by the National Labor Relations Act (most union and non-union employers) to post an 11 x 17 inch poster informing employees of their rights under the NLRA. The Board required that the poster be posted by November 14, 2011. Republicans in Congress and many business groups objected vigorously to the posting requirement, including filing lawsuits seeking to enjoin implementation. GOP members of Congress introduced legislation to outlaw the poster and several business groups filed lawsuits claiming the NLRB did not have the power to enact the poster requirement. The NLRB then decided to postpone the date of implementation from November 14, 2011 until January 31, 2012. The Board claimed this was to allow more time to educate employers about the poster, but it was pretty clear the lawsuits and uproar were the real reasons for the delay.
Last week, a federal judge in Washington DC, who is presiding over lawsuits brought by the NFIB and National Association of Manufacturers, asked the NLRB to delay implementation for a second time. The NLRB followed by announcing that it will honor that request and further postpone implementation until April 30, 2012. Therefore, there is nothing that employers need to do in January. Ultimately, whether or not the poster requirement ever gets implemented will likely be determined by the court system based on the outcome of the lawsuits by the NFIB and National Association of Manufacturers.
Amendment of Election Rules
The NLRB has been discussing and debating comprehensive election reform for more than eighteen months, ever since it became clear that the Employee Free Choice Act was not going to garner enough Senate votes in Congress. The NLRB publicly declared that current rules do not allow unions a fair chance to succeed and that they desire to tilt the playing field more toward the unions in the election process.
Earlier this month, the Board published its final election reform rules. The good news for employers is that many of the original provisions proposed by the NLRB were not included in this rule. For example, the original proposed rule included a provision that would have required employers to give unions all employees’ email addresses and telephone numbers before the election to allow the union to more easily communicate with and organize the employees. This and several other provisions were omitted in the final rule. However, the amended rules still definitely will accelerate campaign times and make it easier for the unions to succeed. The primary changes to NLRB election procedures under the new rule, which is scheduled to take effect on April 30, 2012, include:
(a) Quicker elections as a result of the elimination of the current requirement that voting cannot take place until 25 days after an NLRB regional director issues a Direction of Election;
(b) Eliminating many pre-election appeal rights which were sometimes used by employers improperly to delay elections;
(c) Giving more discretion to the regional director in election matters by giving the NLRB discretion not to review regional director decisions, where currently such review is mandatory.
More information regarding the NLRB's Final Rule, published on December 22, as well as the original proposal is available on the NLRB website.
NLRB v. Boeing
In April 2011, Lafe Solomon, Acting General Counsel for the NLRB, issued a complaint against Boeing Company. The NLRB alleged that Boeing’s decision to open a new plant and assemble its new 787 Dreamliners in South Carolina, a right to work state, violated the National Labor Relations Act. The complaint contended that Boeing improperly transferred union work fom its unionized plant in Seattle to a non-union South Carolina facility in retaliation for the union employees’ prior strikes in Seattle.
This complaint took a lot of heat in the press and from Republicans in Congress who claimed the NLRB should not be interfering with companies' choices about where to open factories, even when the choice is based on unionization. However, the NLRB stood firm and refused to withdraw the complaint.
In December, the Machinists Union, on whose behalf the complaint was filed, asked the NLRB to withdraw the complaint after its members ratified an extension of the collective bargaining agreement in Seattle that includes wage increases of 2% a year, improved pension benefits, and provisions that help guarantee the construction of the smaller 737 airliner in Seattle. Boeing declared victory. The union declared victory. The NLRB then took all the credit for the parties' new collective bargaining agreement, announcing: "After we issued the complaint in April, and as the trial began in June, the parties came to realize that their mutual success required a new approach. The result is a contract that helps guarantee their success and creates job security for workers. I am pleased that the collective bargaining process has succeeded and that the parties have begun a promising new chapter in their relationship."
What remains to be seen is whether the NLRB will take similar actions in the future when the next employer decides to open a new plant in a right to work state in response to a difficult existing union relationship.
NLRB Gets Active With Social Media
2011 saw the rise of NLRB complaints against unionized and non-union employers for attempting to regulate their employees' online and social media posts about work. More specifically, in 2011, the NLRB issued many complaints against employers who fired or disciplined employees for posting negative/derogatory comments about management on Facebook, Twitter and other social media websites. In these complaints, the NLRB has taken the position that the activities of the employees was protected concerted activity as that term is defined by section 7 of the National Labor Relations Act. During the summer this blog posted several entries related to this activity.
The NLRB has yet to set forth a bright line test to help employers determine when they have gone over the line in the view of the Board. However, in August, the NLRB did publish a comprehensive report on its actions related to social media. The report summarizes fourteen different NLRB matters and explains the position taken by the NLRB and the rationale for the NLRB's decision. A review of the report definitely helps the reader get a better understanding for how the NLRB will analyze Facebook and other social media postings in making the determination as to whether or not they constitute protected concerted activity. The NLRB will likely stay very active in this high profile area and union and non-union employer sare advised to review the report before making determinations on discipline for derogatory social media postings (or at least consult an attorney who has read the report) and keep up with the NLRB's activities in this area in 2012. A copy of the 24 page report is available from the NLRB here.
What to Expect in 2012?
It is very difficult to predict what the NLRB will do in 2012 to continue their pro-union agenda for several reasons:
First, it is an election year and politics will play a role. Obama realizes he will need continued support from unions and their members to give him the best chance of being re-elected. However, he also has to realize that if the NLRB acts too aggressively, it could sway moderate voters in the middle towards the Republican side and it is clear that part of the Republican strategy this election is to villify the NLRB's actions during Obama's first term. It is unclear how this will play out.
Second, the Supreme Court has ruled that the NLRB needs at least three members to act. The Board currently has three members, but later this week, on December 31, Board Member Craig Becker's recess appointment expires, leaving the Board with two members. Obama recently nominated two new NLRB members, but most believe that Congress is not inclined to confirm these nominations. It is questionable whether Obama will again sidestep Congress by attempting to name then through recess appointments as he did with Becker. Republican lawmakers have already written letters to Obama urging him not to use the short recess to do this. It is unclear whether Obama is more concerned about relations with the Senate GOP or whether he feels that a recess appointment is the only way to avoid having an NLRB that is unable to function due to having insufficient numbers.
Third, there is the question of the pending lawsuits against the NLRB. There are several lawsuits pending to stop the implementation of the mandatory poster rule. Last week, the U.S. Chamber of Commerce also filed a lawsuit seeking to stop the implementation of the amended election rules. In addition, Republican Senator Mike Enzi declared his intention to challenge the amended election rules under the Congressional Review Act. The outcome of these lawsuits and actions will certainly shape the activities of the NLRB in 2012.
Of course, we will continue to update you on these and other NLRB developments that affect California employers as they occur during 2012.