NLRB Acts on Quickie Election Proposal

Posted on November 30, 2011 by Roger Kaplan

Philip Rosen (NYC), Michael Lotito (SF), Harold Weinrich (Washington DC), and Daniel Schudroff (NYC) wrote this post.

Earlier this afternoon, the National Labor Relations Board held a hearing on Chairman Mark Gaston Pearce’s Resolution pertaining to “Quickie Elections.”  By a 2-1 margin, the Board voted to adopt the Resolution in its entirety.  The Resolution eliminates some pre-election rights of employers in order to shorten the time before a representation election is held.  Republican Member Brian Hayes was present and voted against the Resolution.  Hayes also indicated he has no intention of resigning, putting to rest speculation about an issue that has been in the forefront of labor news lately.

Now that the vote is over, a final rule will be circulated among the three Board members and finalized before year end while the Board still has the Pearce-Becker majority.  Based on comments made during the hearing, and in light of the substance of the Resolution, the time between the filing of representation petition and holding of an election will be reduced significantly.  Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election.  The timing of the election may increase, depending on the scheduling and duration of any pre-election hearing, the filing of briefs and the speed with which the Regional Director decides the case.  There are also unknowns (depending both on the wording and administration of the final rule) that could reduce this timeframe even more.  Also of note, one of the comments today indicated that the Board majority intends to consider the determination of an individual’s supervisory status to be a post-election matter, to be decided only if the issue is not moot after the election.  This could be particularly problematic for employers.

Since employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever for companies to consider a comprehensive preventive labor relations program, including such elements as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law in discussions with employees before and during organizing, (3) bargaining unit analyses (for example, to determine who is a supervisor), and (4) a legal analysis and development of best HR practices reflecting recent legal issues (such as the NLRB’s initiative relating to protected concerted activity).  Please do not hesitate to contact the Jackson Lewis attorney with whom you normally work for legal advice regarding the Board’s rules and options for employer consideration.

Tags:

NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules

Posted on November 11, 2011 by Harold R. Weinrich

We have been conducting educational programs around the country for our clients and friends on the NLRB’s various agenda items.  Among the topics covered was its Acting General Counsel’s focus on social media policies, as well as the Board’s assault on handbook policies generally by frequently implicating NLRA-protected concerted activity.  As the Board’s chief prosecutor, the Acting GC can control the cases brought before the NLRB for decision.

Let’s be clear.  This recent focus on social media and other handbook rules concerns not only unionized employees or those seeking to organize or join a union.  It extends, as well, to the much larger private sector workforce that is not unionized.  Of course, employers of these employees bear the brunt of the NLRB’s attention.  The Acting GC and the Board are encouraging charges over these rules. They have developed and implemented effective public relations methods to inform employees that the NLRB protects their rights, even without a union, in many aspects of their employment, so long as the employees are acting together.

Here is some of what the Acting GC had to say at a November 3rd meeting of the American Bar Association:

  • A complaint he authorized in 2010 involving the use of social media, which was picked up by the news media, gave him “a chance to explain to the 93 percent [of private sector workers] who are not represented by unions the National Labor Relations Act” and principles of protected concerted activity under the Act.
  • As a result of the publicity, the agency received hundreds of unfair labor practice charges from individuals asserting that their employers violated their NLRA rights by punishing them for social media use.  This shows that more workers are “waking up” to their NLRA rights.
  • “You can’t do that under the National Labor Relations Act,” he warns companies with what he sees as broadly worded policies that may be reasonably understood by employees to inhibit protected concerted activity.
  • Whether an employer’s disclaimer statement in a policy can avoid unfair labor practice liability likely will be reviewed as individual cases are brought to the NLRB.  An effective disclaimer, he cautioned, cannot be “a throwaway line.”  It must provide information about an employee’s rights.

Employers should review their policies to ensure they are in tune with the views of the Board and its Acting GC.  Across the country, union-free companies have been charged with unlawful interference with employees’ concerted activity because of overly broad rules.  In many of the election cases in which we have been retained as counsel, employers have prevailed at the polls only to be charged with objectionable conduct based upon handbook rules.  All employers should conduct supervisory training to educate supervisors about protected concerted activity.
 

Tags: ,