Board Continues Aggressive Policing of Employee Social Media Use

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Stop me if you heard this one: the National Labor Relations Board recently reinstated employees who were discharged for comments made on their Facebook pages and found that the employer's social media policy was unlawful.

We have covered this topic in detail before (herehere and here for example), and you can check out these posts and others in our Archive for some background information on the Board's aggressive approach to social media issues. In Triple Play Sports Bar and Grille, the Board made clear its position that under the National Labor Relations Act, employees have the right to act together to improve the terms and conditions of their employment and to "improve their lot." The Board went on to state that this includes the right to use social media to communicate with each other and with the public for this purpose.

On the other hand, the Board also noted that online communications can implicate legitimate employer interests, including the right to maintain employee discipline. The Board noted that the competing interests of the employees and the employer must be weighed carefully (yes, you know where this is headed). In this case, not surprisingly, the Board found that the employees' interests outweighed the employer's interests and that the employees' conduct did not lose the protections of the Act despite the use of some pretty offensive language.

Let's take a look at the facts.

Triple Play is a non-union establishment. At some point, the employees learned that they owed state income taxes because their paycheck withholdings were incorrect due to an apparent accounting error. As employees tend to do when they are upset, these employees took to Facebook to vent their frustration. A discussion ensued among employees and customers on Facebook, and the owner of Triple Play was referred to using some pretty colorful and insulting names. In addition, the group used insulting language to refer to Triple Play. There was some dispute regarding who had access to the posts--the entire world or only Facebook friends--but the discussion came to the attention of the owners of Triple Play the day after it was posted.

When the employees returned to work, one was immediately fired. Another was questioned about the posts, and admitted that when he "Liked" the posts made by other employees, he was expressing his support for the content of the posts. This employee was promptly fired as well.

The Board found that the employees' discussion of the calculation of tax withholdings, the complaints they intended to raise at an upcoming meeting about the issue, and possible complaints to the Department of Labor, constituted concerted protected activity under the Act. The employer argued that the employees' comments lost the protection of the Act because the comments were defamatory and disparaging and because they were made in a public forum. I really like that last argument. To me, the world wide audience on the web really changes the dynamics of these situations and it cannot seriously be argued that such discussions are analogous to discussions around a water cooler.

The Board did say that given the public nature of the posts, which were made offsite and outside of working hours, the standard Atlantic Steel test used to determine whether comments were so outrageous as to lose protection of the Act, was not appropriate. Instead, the Board found that the Wright Line test was the appropriate test. The Wright Line test examines whether comments made by employees are so disloyal or defamatory as to lose the protection of the Act. This test balances the employees' rights under the Act against the employer's interests in preventing the disparagement of its products and services and its interest in protecting its reputation.

In its evaluation of the Wright Line test, the Board found that the comments related to an ongoing "labor dispute" and were not directed toward the general public, because the comments were posted on a personal Facebook page. A personal page, it should be noted, that could have a worldwide audience, a fact apparently lost on the Board. The Board likened the conversation to one that could be overheard at the bar or in a workplace. This is an analogy that I wholeheartedly disagree with; see my comments above.

The Board ultimately concluded that under the Wright Line test, the employees' comments were not so defamatory or so disloyal as to lose the protection of the Act. The Board, therefore, ordered that the employees be reinstated. The Board also held that the employer's Internet/Blogging policy violated the Act. The Board concluded that a reasonable employee could construe the policy's prohibition on "inappropriate discussions about the company, management and/or coworkers" as a restriction on their rights under the Act. The Board found this rule was overly broad and could chill the exercise of employee rights under the Act.

For those of you following the Board and/or our Blog, the result here does not surprise you. The employer lost on all fronts. It is interesting that the Board spent some time talking about the public nature of the Facebook posts though. Given that the Board found that the employee comments were not so disloyal or defamatory as to lose the protections of the Act, this discussion by the Board was essentially irrelevant. However, it leads us to believe that the Board may have been outlining a new framework for addressing how it will be evaluating social media activity; and specifically, how the Board may distinguish between private, semi-private, and public posts when considering these issues in the future. Hopefully, employers who find themselves before the Board in the future will make a detailed record outlining the extremely public nature of everything posted to the internet.

NLRB Modifies Standard Remedial Notice to Include QR Code and Link to Board's Web Site

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

The National Labor Relations Board recently took the opportunity, in a case dating back to 2011, to update and modernize some of the standard language contained in the remedial notice that the Board requires to be posted as a remedy for unfair labor practices. By way of background, in nearly every case in which the Board finds a violation of the Act, it requires the offending party (union or employer) to post or otherwise furnish a notice to employees setting forth their rights under the Act. The notice will also include information regarding the remedial actions that will be taken by the violating party. In the recent past, the Board has begun to require parties to issue the notice in electronic format, but for the most part the standard language in the notice has not changed.

In Durham School Services, L.P., the Board upheld an ALJ decision reinstating an employee who was allegedly discharged in retaliation for supporting the union during a hotly contested union election. The Board also affirmed the ALJ's finding that the employer engaged in objectionable conduct during the period prior to the election, which warranted the setting aside of the election results which had been in favor of the employer. As a result, the ALJ ordered that a third election be held (the first election was also overturned).

Those of you who have been following the Board's decisions of late were probably not surprised to see that the employer lost on all fronts. That result is not what makes this case of note. What makes it noteworthy is that the Board took the opportunity, at the request of the union, to prospectively modify the standard language it includes in all remedial notices.

In Durham, the Board granted the union's request that it modify its current standard notice to inform employees that a copy of the Board's full decision and order are available on the Board's web site. The notices will now include a link to the decision/order and a QR code that will take employees directly to the Board's web site. The Board found that making the decisions and orders more readily available will facilitate a better understanding of the violations that occurred and why the Board granted the remedies it directed. It will be interesting to see what the future holds for the Board's standard notice as the Board continues its unprecedented outreach efforts and continues to attempt to facilitate employees' understanding of the Act.

Would You Like Fries . . . and an Unfair Labor Practice Charge with That?

This post was contributed by Bruce D. Bagley and Lee E. Tankle of McNees Wallace & Nurick LLC's Labor & Employment Practice Group.

Mainstream media, attorneys, and business owners are discussing the meaning and impact of a two paragraph press release issued on July 29 by the Office of the General Counsel of the National Labor Relations Board (NLRB). That Office is the "prosecuting arm" of the NLRB, and in the press release, the General Counsel indicated he has authorized the issuance of unfair labor practice (ULP) complaints against franchisor McDonald's USA, LLC for the actions of its franchisees. In a typical franchisor-franchisee relationship, a franchisor, like McDonald's, may contract with a franchisee to provide the latter with use of the franchise name, logo, processes, recipes, etc., in exchange for an upfront franchise fee and sales-based royalties. So is this press release declaring McDonald's a "joint employer" with potentially over 13,000 United States franchisees the super-sized issue pundits have made it out to be?

Over the past two years, 181 ULP charges have been filed with the NLRB involving numerous McDonald's restaurants. The charges arose largely from the termination of a number of fast food workers who had participated in various protests and union organizing efforts at McDonald's franchised stores across the country. Per the General Counsel's press release, 68 of those cases were found to be meritless, 64 are pending investigation, and 43 were found to have merit. In those 43 cases found to have merit, the General Counsel contends that the various franchisees and McDonald's USA, LLC (the franchisor headquartered in Illinois) are "joint employers" and will therefore be named as parties to the complaints.

We have previously discussed the United States Court of Appeals for the Third Circuit's views on joint employer status under the Fair Labor Standards Act (FLSA), a different federal statute.

Why all the hubbub now under the National Labor Relations Act (NLRA)?

Typically, the NLRB (and the reviewing federal courts) have found that franchisees are independent operations, that franchisors like McDonald's USA, LLC are not responsible for decisions made by the franchisees about hiring, firing, wages, benefits, etc., and that consequently they are not joint employers with the franchisees. If the franchisor is deemed to be a joint employer with the franchisee, the franchisor can potentially be held liable for any violations of law engaged in by the franchisee. The General Counsel's theory, if ultimately adopted by the Board, would no doubt render the franchisor-franchisee model much less appealing to the business community. Why would any company want to license its intellectual property and business model, losing out on potential profit, if the franchisor will be held responsible anyway for actions undertaken by the separately-owned franchisee?

Unions are of course thrilled with the General Counsel's decision because they have consistently asserted that large franchisors like McDonald's and Burger King have ultimate control over everything that goes on in their franchisees' restaurants. Union activists, like those at the Service Employees International Union (SEIU), believe that by holding large franchisors as joint employers with the franchisees, workers can put more pressure on large fast food chains and other franchisors to improve employee benefits and raise wages—and perhaps even unionize McDonald's/fast food workers nationwide rather than having to organize individual elections at each franchise location.

At this stage, this is only a prosecutorial determination by the NLRB's General Counsel based on his opinion and investigation of the 40+ cases referenced above (notably the General Counsel provides no reasoning for his joint employer theory in the press release). And while his decision to authorize the issuance of Complaints is not a precedential court decision, Board Decision, or even a decision by an NLRB Administrative Law Judge, employers—especially franchisors and those who utilize contractors or subcontractors—should take heed of the General Counsel's statement. Why? The General Counsel's press release comes at a time when the NLRB itself has been reconsidering its whole approach to the joint employer issue. It is very likely that the pro-union Board will soon adopt a broader definition of the term "joint employer," once again making it easier for unions to organize employees.

What is an employer to do while we wait for a Board or court decision? If an employer is in what could be determined to be a joint employer relationship, the business may want to consider steps to further define boundaries between the two employers, in order to lessen the likelihood of a finding of joint employer status. At a minimum, employers should take reasonable measures intended to ensure that their business partners, franchisees, and subcontractors are in compliance with applicable federal and state employment laws. Stay tuned for further developments!
 

Screaming Profanities and Threatening the Boss Not Enough to Get You Fired According to NLRB

This post was contributed by Adam L. Santuccian Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Yep, that's right. The employee's outburst is too obscene to reproduce on the Blog, but you can review the Board's decision here. Suffice to say that the employee, who was employed for only about two months: (1) called the owner of the company a crook and a number of other colorful names; (2) the attack was personal and contained a veiled threat; and (3) was described as "physically aggressive" by a Board Administrative Law Judge. Should be enough to get you fired, right? Not with this Board.

The employee was a car salesman, and asked some general questions about restroom breaks and employee compensation during his first few days on that job. Pretty typical for a new employee. When the employee sold his first car, he questioned the commission payment he received and questioned the dealership's draw on commissions policy. At various times, the employee was told – if you don't like how we do things here, find yourself another job. (As much as we all would like to say that at times, you and your managers really need to avoid that statement.)

Eventually, the dealership's owner met with the employee to talk with him about his constant complaining. During the meeting, the employee apparently lost it, as described above, and was fired for the outburst.

The employee filed a complaint with the Board, and the ALJ initially concluded that the employee was engaged in concerted activity protected by the National Labor Relations Act, but that his belligerent, physically aggressive and menacing behavior lost the protection of the Act; and therefore, the termination was upheld.

The Board disagreed and reversed the ALJ's determination. The Board found that the Atlantic Steel factors, which are used to determine whether employee conduct lost the protection of the Act, all weighed in favor of the employee. The Board ordered the employee reinstated. The employer appealed to the 9th Circuit Court of Appeals, which determined that the Board's decision was internally inconsistent, i.e. did not make sense, and remanded the case to the Board.

On remand, the Board affirmed its earlier decision (surprise!). The Board noted that although one of the Atlantic Steel factors did weigh against the employee, overall the factors weighed in favor of protecting the employee's conduct. The Board concluded, again contrary to the ALJ, that the employee's conduct was not physically aggressive or menacing. The Board concluded, contrary to the ALJ, that the veiled threat was not really a threat. Ultimately the Board held that the employee's conduct did not lose protection of the Act.

What can we take from this case (besides a whole lot of frustration)? This Board is clearly willing to split hairs when evaluating employee misconduct and the Board's efforts to expand the protections of the Act continue – but we knew that. To us, it appears that this Board is only going to require an express (rather than implied) threat or actual physical violence in order to find that an employee's outburst loses protections of the Act. And that is a shame.

UPDATE: Still No Love for No Gossip Policy

We previously reported that a National Labor Relations Board Administrative Law Judge found that an employer violated the National Labor Relations Act by implementing a "no gossip" policy and firing an employee who violated the policy.

Not surprisingly, the Board has affirmed that decision (pdf).  We say it's not surprising because the Board's assault on employer policies has been ongoing and highly publicized over the past few years.

Suffice to say, employers must be sure to carefully craft policies to ensure compliance with the Act. In addition, employee disciplinary decisions should be closely scrutinized to ensure claims under the Act are not triggered.
 

U.S. Supreme Court Issues Long-Awaited Decision in NLRB v. Noel Canning; President Obama's Recess Appointments to NLRB Deemed Unconstitutional

This post was contributed by Bruce D. Bagley, a Member in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

On June 26, 2014, the United States Supreme Court unanimously found that President Obama acted unconstitutionally when he made several recess appointments to the National Labor Relations Board ("NLRB") in 2012. The Court, in an Opinion authored by Justice Breyer, affirmed (albeit for differing reasons) the January 2013 judgment by the U.S. Court of Appeals for the District of Columbia Circuit. (Similar rulings holding the appointments to be unconstitutional had been made by the Fourth Circuit Court of Appeals and our own Third Circuit Court of Appeals.)

As we have reported previously, on January 4, 2012 the President appointed three individuals to be Board Members. He had previously been unable to procure sufficient support for his appointments from the United States Senate, which under the U.S. Constitution, must confirm such presidential appointments. The President thereafter made the appointments anyway, claiming that the Senate was in "recess" for its 2011-2012 winter holiday break, and that he had authority under the Constitution's Recess Appointments Clause to make such appointments at that time. The Senate, however, did not consider itself to be in recess, as it had agreed to reconvene every three business days during the period from December 20, 2011 through January 23, 2012.

The Court split 5-4 on the rationale for confirming the Court of Appeals' judgment. Justice Scalia and the three more conservative Justices would have more broadly limited the president's recess appointment powers. Justice Breyer and the four more liberal Justices concluded that the Recess Appointments Clause does empower the president to fill vacancies during a recess of sufficient length, which Breyer opined should be a hiatus of at least 10 days. But here the Senate had been on only a three day break, according to Breyer, because it was meeting every three business days. All nine Justices agreed that a three day break in business was not of sufficient length to constitute an actual recess which would allow the President to make these unilateral appointments.

Turning more specifically to the Board's findings in the case at issue, the Company's argument in Noel Canning was simple and direct. It argued that the Board's finding it had committed unfair labor practices must be overruled because the Board lacked a proper quorum, due to the fact that three of the Board's five Members had been unlawfully appointed. The Supreme Court readily agreed with the Company's position. And by doing so, the Court has implicitly invalidated literally hundreds of NLRB Decisions issued from January 4, 2012 to July 30, 2013, the date on which new Members were finally and lawfully confirmed by the Senate during its regular session.

Many of the Board's Decisions issued during that January 2012 to July 2013 time period were quite significant. In Costco Wholesale Corp., 358 NLRB No. 106 (2012), the Board had invalidated a policy prohibiting employees from making defamatory statements about the company. In Banner Health System, 358 NLRB No. 93 (2012), the Board had found unlawful a blanket policy prohibiting employees from discussing ongoing investigations of misconduct with other employees. In D.R. Horton, 357 NLRB No. 184 (2012), the Board had concluded it was unlawful for employers to require employees to arbitrate claims rather than file civil actions. In WKYC-TV, Gannet Co., 359 NLRB No. 30 (2012), the Board had held it was unlawful to cease deducting union dues from employees' pay checks after expiration of the collective bargaining agreement. All of these cases, and many others, will now be of no precedential value, given the lack of a proper quorum at the Board when the decisions were issued.

Many of you may recall what happened the last time the Supreme Court found that the Board lacked a proper quorum, in New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). It took the Board several years to re-evaluate and reissue determinations on hundreds of cases, just as the Board must presumably do now as a result of Noel Canning. But in what must be of most import for those of us on the management side, the Board is currently at full strength (three Democrats and two Republicans). It is unlikely that the present Board will ultimately deviate from the harshly pro-union precedent established by the Obama-appointed recess Board Members. Long-term, Noel Canning may be remembered much more for its rebuke of President Obama's usurpation of legislative authority than it will be for its impact on principles of substantive labor law.

NLRB Upholds Discharge for Deliberate Betrayal, Despite Reliance on Unlawful Policy

This post was contributed by Adam L. Santucci, an associate in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

The National Labor Relations Board recently issued a somewhat surprising decision that provides useful guidance to employers facing employee misconduct. In Flex Frac Logistics, LLC, the Board found that an employee's discharge for breaching the employer's confidentiality policy was lawful, despite the Board's finding that the confidentiality policy was unlawful.

In a prior decision, the Board found that the confidentiality policy was unlawfully overbroad because it prohibited or could be interpreted to prohibit employees from discussing wages, hours and other terms and conditions of employment. We have previously discussed with you the Board's aggressive enforcement stance with respect to employer policies of all types. As part of that prior decision, the Board remanded to an Administrative Law Judge ("ALJ") the question of whether the employee's termination pursuant to the confidentiality policy was also unlawful.

The ALJ held, and the Board affirmed, that the employer did not violate the National Labor Relations Act when it discharged the employee. Discipline pursuant to an unlawful policy is only unlawful if the employee violated the rule by engaging in protected activity under the Act, or by engaging in conduct that otherwise implicates the concerns underlying the Act. The Board found that even though the employee's conduct implicated the concerns underlying the Act, her discharge was lawful because the employee deliberately betrayed the employer's strong, expressly articulated confidentiality interests.

The Board noted that there was no dispute that the employer had a legitimate business interest in maintaining the confidentiality of the rates it charged its customers, and that the employer was harmed by the employee's disclosure of that information. The Board found that it was clear that the employee was not discharged for engaging in protected activity but was instead discharged for deliberately violating the confidentiality policy. Importantly, the Board noted that the employer cited the employee's interference with its operations as the reason for her discharge.

This decision was surprising to us given the Board's strong defense of employee rights under the Act. But, as was previously discussed, there are some limits to the protections of the Act. The Flex Frac decision has a good discussion of the types of misconduct that will not be protected by the Act, even if the employer relied on an unlawful policy in taking disciplinary action against the employee.

Although helpful, employers should still work to ensure that their policies will withstand scrutiny under the Act, and that any disciplinary actions are carefully vetted for compliance.

NLRB Finds that not all Whining and Complaining Protected by NLRA

Stop me if you have heard this one, an employee was upset about his pay rate…

Seriously, an employee upset about his pay was at the heart of a recent decision issued by the National Labor Relations Board that explored the protections afforded by the National Labor Relations Act ("Act"). The employee in question was hired to perform waterproofing duties on a project at a university in Ohio. The project was a public project, and therefore, it was covered by the applicable prevailing wage laws. The employee, however, was not happy about the prevailing wage rate that he received on the project, and essentially complained about his wage rate throughout the entire time he spent working on the project. In fact, as the foreman testified, the employee complained about basically everything during his brief tenure with the employer.

No Good Deed Goes Unpunished
According to the foreman, the employee "whined" and "complained" throughout the project about nearly everything. The employee apparently constantly voiced his opinion that the company was doing "everything wrong." (You may have heard that one before too!) As it turns out, the employee did receive some pay increases during the term of the project. However, he often told other employees about the wage increases, which led to some discontent and caused at least one long term employee to quit (apparently feeling that he should have also received wage increases even without having to complain). Eventually, the payroll clerk wrote the employee a note on his pay stub that stated, "Please keep your pay to yourself."

Under the Act, employees are permitted to engage in concerted protected activity. This includes discussions regarding terms and conditions of employment, such as wages. Accordingly, the Board quickly concluded that the handwritten statement on the pay stub was a direct restriction on protected activity, and therefore, a violation of the Act.

Some Bad Deeds need not be Forgiven
The employee was laid off at the end of the project, and proceeded to file multiple complaints against the company, including a complaint to the university that the work performed on the project was "shoddy." Before the Board, the employee argued that his termination was retaliation for engaging in protected activity, i.e. complaining about his wages. The company, however, argued that the employee was terminated because the project came to an end and it had no more work for the employee. The Board agreed with the company. The Board concluded that there was no evidence to suggest that the employee's complaints about his pay were the reason for his lay off. The Board noted that the employee had received pay increases after he complained, and that several other employees were laid off at the conclusion of the project.

The employee also argued that the fact that the company failed to rehire him for other projects was in retaliation for his protected activity. The company argued that it would not rehire the employee because of the allegations that he made to the university regarding the quality of the company's work. The Board actually sided with the company on this one, finding that its explanation was credible, and that the statements about the quality of work in this instance were not protected activity.

It seems that employers are regularly finding themselves in hot water with the Board as a result of overly restrictive policies and procedures. Even in situations like the present case, where there were obvious negative consequences following the employee's discussion of his wage rate (another employee quit), the Board will find a violation of the Act. In fact, the Board noted that the motivation for the restriction on the employee's conduct was "irrelevant."

Nonetheless, for some of us it is refreshing to be reminded that there are some limits to the protections of the Act. Indeed, not all "complaining and whining" is protected.
 

NLRB Rules That College Football Team Can Seek to Form a Union

This post was co-authored by Bruce D. Bagley, a Member in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

As Americans across the country anxiously stare at their National Collegiate Athletic Association (NCAA) Division I Men's Basketball brackets, the Northwestern University Wildcats are dominating the headlines in both the sports and labor law communities. In what many sports and legal commentators are calling a game-changing decision (pun intended), on Wednesday, March 26, the Regional Director for the Chicago Regional Office of the National Labor Relations Board (NLRB) ruled that certain players on the Northwestern University football team could seek to form a union. Perhaps more importantly, the Decision is quite expansive in its interpretation of the term "employee."

At the center of his Decision, the Regional Director found that scholarship recipients are actually "employees" of the University, as the term "employee" is defined in the National Labor Relations Act (NLRA). According to the Decision, "an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment." The Regional Director reasoned that Northwestern's scholarship football players are employees because they sign a "tender" before each scholarship period, are granted scholarships (payment) in exchange for their services (playing football), are under the strict control of the University's athletic department, and perform valuable services because they generated over $235 million for the school's football program over a ten year period. The Director further argued that these scholarship football players are "paid" over $76,000 per year, in the form of tuition, fees, room, board, and books – and that this scholarship payment is directly tied to their performance "at work" on the football field. Notably, the Director concluded that non-scholarship and "walk-on" players do not meet the definition of "employee," because they receive no compensation for the services they perform.

So what happens next? Northwestern has indicated its intention to file a Request for Review of the Regional Director's Decision with the full NLRB in Washington, D.C. If the Board grants the Request for Review, it will consider further briefings by the parties, and possibly oral argument. If the Regional Director's Decision is upheld, the NLRB's Chicago Office will conduct a secret ballot election in a voting unit consisting of "all football players receiving football grant-in-aid scholarships and not having exhausted playing eligibility" employed by Northwestern University.

If the Northwestern football players do eventually vote to form a union, this will give them the right to collectively bargain with their "employer", Northwestern University. There is no guarantee that they will receive additional payment or benefits at all – they could even conceivably find themselves with fewer benefits depending on the terms of an eventual collective bargaining agreement. And there are a number of potential downsides for the players – if the money they receive in scholarships is "income", the IRS could very well demand that players pay an income tax on the scholarship funds deemed payment for their athletic services. Note that, according to various press accounts, the players do not claim they wish to receive any additional compensation (at this point). As of now, they have indicated their primary concern is securing the coverage of medical expenses for current and former athletes with sports-related injuries.

The Regional Director's Decision directly impacts only Northwestern University, although certainly players at other schools may be pursuing similar actions. Remember that the NLRB does not have jurisdiction over public universities such as Penn State, Ohio State, etc. Such state-related institutions would be under the jurisdiction of state labor relations boards. Remember, too, that the Northwestern Decision is fact-specific, and that other Division I football programs could be treated differently by the NLRB.

As expected, the NCAA and many of the major college sports conferences strongly disagree with the Decision. In a statement released shortly after the Decision was issued, the NCAA stated "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid." The NLRB concluded that scholarship football players were not "primarily students" because they spend most of their time participating in athletic endeavors. This is certainly an expansive reading of the statutory term "employee." Only time will tell if the federal appellate courts, including eventually the U.S. Supreme Court, will agree that federal labor law was intended to grant collective bargaining rights to student athletes, albeit ones that receive scholarships and whose college activities may indeed be tightly controlled by their coaches.
 

The National Labor Relations Board 2013 Year in Review

Recently, McNees issued its annual White Paper: The National Labor Relations Board Year in Review.  Please click here to view the full White Paper. 

From the looks of it, 2013 was a very rough year for the National Labor Relations Board! Last year, we reported that the National Labor Relations Board would face some serious legal battles in 2013. Some of those battles are over, and there are clear winners and losers. Many more battles are still being waged. All the while, the Board continued to pursue its heavily pro-union agenda.

To continue reading, click here

 

No Love for No Gossip Policy

A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently concluded that an employer violated the National Labor Relations Act (Act) by implementing a "no gossip policy" and by firing an employee who violated the policy. The case, Laurus Technical Institute, involved a non-union employer. As we have reported before, the NLRB's jurisdiction covers union and non-union employers alike. We have also talked with you about the NLRB's aggressive approach to policing employer workplace policies. You have been warned!

It appears that in this case, after an employee filed a charge challenging her termination for unsatisfactory work performance and various policy violations, the NLRB's General Counsel's office included an additional charge challenging the employer's "no gossip policy."

The "no gossip policy" was implemented to address a number of workplace problems, problems that you are probably familiar with! The policy provided that gossip would not be tolerated. The policy also prohibited employees from engaging in gossip about the company, other employees or customers and stated that employees who violated the policy would be subject to disciplinary action. The policy defined gossip in a number of different ways, including: "talking about a person's personal life when they are not present; talking about a person's professional life without his/her permission; and creating, sharing or repeating rumors about another person, that are overheard or that constitute hearsay."

The ALJ found that the policy violated the Act because it was overly broad and essentially banned any discussion of an employee's professional life and negative comments/criticisms of other employees. The ALJ found that, as a result, the policy prohibited employees from discussing the terms and conditions of employment, which is an activity clearly protected by the Act. The ALJ concluded that because the policy contained no narrowing or clarifying language, and did it further define any terms, the policy was unlawful.

That last part is interesting to us, because the NLRB has repeatedly emphasized the importance of clarifying language in policies, and has encouraged employers to carefully define terms. It looks to us like the employer in this case gave that a shot, and one could argue that the employer did define gossip carefully. One could also argue that a reasonable reading of the policy would render it lawful. Obviously, the ALJ did not see it that way.

The ALJ also concluded that, because the employee who brought the complaint was terminated, in part, for violating the policy, her termination was also a violation of the Act. The ALJ ordered that the employee be made whole.

This decision is another in a series of decisions attacking employer workplace policies. Unfortunately, this trend is likely to continue. Employers should not simply throw up their hands and give up, however. Instead, employers should work with counsel to careful draft policies and procedures. In addition, employers should continue to closely scrutinize termination decisions that may involve protected activity under the Act.

NLRB Finds Discussions With Employees of Another Employer Can Constitute Protected Activity

As we discussed with participants in our recent Labor and Employment Law Seminar, despite recent setbacks, the National Labor Relations Board continues to issue decisions that are concerning for employers. These decisions, which impact union and non-union employers alike, often take an expansive view of the protections afforded employees by the National Labor Relations Act. In a recent case involving a complaint filed by an (alleged) independent contractor working for a non-union employer, the Board found that the contractor's electronic communications, directed at employees of a different employer, were protected by the Act because the communications constituted union organizing activity.

In New York Party Shuttle (pdf), the Board first considered whether the complaining party, a tour guide, was an employee or an independent contractor. The Tour Guide was regularly hired by Party Shuttle to provide guided tours of New York City. He also maintained his own tour company, and booked and provided tours through his own company. The Board held that Party Shuttle failed to establish that that the Tour Guide was an independent contractor. In making its decision, the Board applied a common law test that considers a multitude of factors and places the burden on the employer to establish independent contractor status. In this case, the Board found that Party Shuttle failed to establish that the tour guide as an independent contractor.

After determining that the Tour Guide was an employee, the Board turned to the next issue, the Tour Guide's termination.

The Tour Guide was hired in October 2011, and quickly became displeased with the working conditions at Party Shuttle. After one month on the job (that was fast) the Tour Guide began suggesting to other employees that they form a union. Some of these employees complained to the Party Shuttle that the Tour Guide was harassing them regarding the union issue and that he was overly aggressive and unprofessional with both coworkers and customers. After the holidays, Party Shuttle had few tours available and did not schedule the Tour Guide. In early February of 2012, the Tour Guide sent an email to his FORMER coworkers, at a completely separate tour company, complaining about the working conditions at Party Shuttle. The email contained a number of inaccurate statements about Party Shuttle. The Tour Guide later posted similar comments to Facebook. The Tour guide was given no further assignments by Party Shuttle and he then amended an earlier complaint against Party Shuttle that he had filed with the Board alleging that he was unlawfully terminated.

The Board concluded that Party Shuttle's failure to provide the Tour Guide with assignments was based on his discussions with other employees regarding union organizing. The Board was not concerned about the timing of the original complaint or Party Shuttle's argument that the Tour Guide acted inappropriately during interactions with coworkers and customers. In addition, Party Shuttle argued that the Tour Guide's statements to third parties about Party Shuttle were inaccurate and abusive. Nonetheless, the Board concluded that the Tour Guide's comments were protected by the Act, even if those comments were directed at employees of another company!

It seems that, regardless of how an employee discusses an issue or with whom, if the employee is discussing union organizing or terms and conditions of employment, those discussions will be protected. It does not seem to matter how other employees feel about the discussion, whether the discussion takes place with non-employees, or whether those discussions violate employer policies. As a result, employers must proceed with caution when attempting to address an employee discussions of the terms and conditions of employment.

NLRB'S Notice Posting Rule Invalidated by DC Court of Appeals

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Practice Group.

On May 7, 2013, a three-member panel of the U.S. Court of Appeals for the DC Circuit vacated the NLRB's Notice Posting Rule, originally issued by the Board in August 2011. The Rule required that virtually all private-sector employers post a Notice to Employees, informing employees of various rights under the National Labor Relations Act (Act), such as the rights to engage in union organizing, form or join a union, and strike. The Notice also described various actions by employers or unions that would be illegal under the Act.

The Rule was immediately subject to legal challenge. Notably, the National Association of Manufacturers (NAM) challenged the validity of the Rule in the U.S. District Court for the District of Columbia. In March 2012, the District Court struck down several provisions concerning how the Rule would be enforced by the Board but ultimately held that the Board did have legal authority to promulgate the Rule. Thereafter, NAM appealed the District Court's decision to the D.C. Court of Appeals. Meanwhile, another federal District Court, in South Carolina, had vacated the Rule in its entirety in April 2012. The NLRB appealed that decision to the Fourth Circuit Court of Appeals, where it remains pending at this time.

The DC Circuit's May 7 opinion in National Association of Manufacturers, et al. v. NLRB vacating the Rule was premised on what the Court deemed to be unlawful provisions for enforcement of the Rule against employers. Specifically, the Board had designated three enforcement mechanisms: (1) an employer who failed to post the Notice would be committing an unfair labor practice, (2) an employer's failure to post the Notice would be evidence of anti-union animus in cases involving employer motivation, such as discharges or refusals to hire, and (3) failure to post would toll the Act's six months limitations period for filing an unfair labor practice charge.

Judge Randolf, writing for the Court, concentrated most of his opinion on employer "free speech" rights, stating that Section 8(c) of the Act protects not just an employer's right to state its opinion on whether its employees should unionize, but also protects "the right of employers (and unions) not to speak." The Court held that enforcement of the NLRB's Rule would impermissibly force employers to speak to its employees about topics they might prefer not to address, e.g., employees' rights to unionize, picket, strike, etc. All three of the Rule's enforcement provisions were struck down by the Court, with Judge Randolf concluding that the Rule (whether or not it was lawfully promulgated) could not stand if there was no lawful way to enforce it. Judges Brown and Henderson, writing a separate but concurring opinion, went even further than Judge Randolf and found no statutory authority for the Board to promulgate the Rule, even aside from the Rule's unlawful enforcement mechanisms.

In light of the Court’s decision, the Rule remains invalid, and employers throughout the country are, for the time being, relieved of any obligation to post the Notice. Like any disappointed litigant, the Board must now decide whether to appeal the DC Circuit Court's Opinion. Already pending at the U.S. Supreme Court is the Board's request to appeal from the DC Circuit’s decision in Noel Canning v. NLRB. In Noel Canning, the DC Court of Appeals found that President Obama acted unconstitutionally by making three so-called “recess” appointments to the Board in 2012. Because of these unconstitutional appointments, the Court held that all of the Board’s decisions since January 2012 were null and void. 

Suffice it to say, it has not been a pleasant Spring for the President's extremely pro-union appointees at the Board!

NLRB Decisions to Fall Like Dominos?

As you may have heard, the District of Columbia Circuit Court of Appeals recently sent shockwaves through the labor relations world by holding that President Obama's "recess" appointments to the National Labor Relations Board were invalid. The court concluded that, as a result, the Board was acting without a quorum and did not have the power to render binding decisions. The question has now become, how many Board actions will go down?

The decision, Noel Canning v. Nat'l Labor Relations Bd. (pdf), addressed the President's ability to make "recess" appointments, that is, appointments to executive branch positions without the confirmation of the Senate. The court concluded that the "recess" appointment power is available, not surprisingly, only when the Senate is actually in recess. The three Board appointments at issue were declared invalid because the Senate was not in recess at the time the appointments were made. The court concluded that, since the appointments were invalid, the Board has been operating without a quorum since January 4, 2012. As such, in accordance with the Supreme Court of the United States' holding in New Process Steel v. Nat'l Labor Relations Bd. (pdf), the Board's decision was null and void.

The wave of challenges to the Board's actions rendered since January 4, 2012, (and some even prior to that date) has begun to crest. Interestingly the Noel Canning court, anticipating the likely impact of its decision, noted that it was not concerned about the repercussions of its holding on the Board. The Board, on the other hand, seems to have taken the position (in a January 25, 2013 press release) that the impact of Noel Canning is limited to only that case and therefore, its other decisions remain valid.

Despite the Board's position, one key decision that could be washed away is the Board's holding in D.R. Horton, Inc. (pdf).  In that groundbreaking case, the Board held that mandatory arbitration clauses in employment agreements that prohibit class-based claims violate the National Labor Relations Act. Although rendered before the January 4, 2012 appointments at issue in Noel Canning, the D.R. Horton decision was rendered by a Board that also included at least one recess appointment. This decision was already on appeal, but the attorneys for D.R. Horton have the appeals court to consider the impact of Noel Canning.

Also, HealthBridge Management LLC asked the Supreme Court to make a splash by requesting that the Court issue an emergency stay of an injunction issued by the Board due to the uncertainty surrounding the Board appointments. Last week, however, the Court denied the petition. The impact of the decision may also be felt in other areas outside of labor law. For example, there has been a challenge to the "recess" appointment of the director of the relatively new federal Consumer Financial Protection Bureau that could undermine the actions of that agency.

For now, it appears that chaos reigns. Prudent employers, both union and non-union alike, are wise to proceed with caution in assessing the damage. President Obama has almost four years left in office, and it may be safe to assume that the Board, when properly constituted, will return to its pre-Noel Canning agenda.
 

NLRB Provides New Guidance on At-Will Employment Provisions

On October 31, 2012, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued two advice memoranda addressing at-will provisions in employee handbooks. In both cases, the NLRB concluded that the specific at-will provision could not reasonably be interpreted to restrict protected activity and, therefore, was permissible under federal labor law.

The NLRB’s guidance follows a controversial decision earlier this year from an NLRB administrative law judge (ALJ). In that decision, the ALJ held that an at-will disclaimer adopted by an American Red Cross regional unit was unlawfully overbroad to the extent it conveyed that at-will status could never be changed. Notably, Red Cross employees were required to sign a form stating “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” In the Red Cross matter, the ALJ found the language to be unlawful because it implied any concerted effort undertaken by employees to alter the at-will status would be futile. (We previously commented on the Red Cross decision in our October 2012 Employer Alert.)

The ALJ’s ruling in Red Cross generated significant attention and raised concerns that more challenges to the at-will language commonly included in employee handbooks would follow. The NLRB’s recent advice memos, however, provide welcome guidance and serve to allay these concerns.

The first advice memo (available here) addressed language in a restaurant’s handbook that “No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.” The second advice memo (available here) addressed a challenge to a trucking company’s handbook, which advised drivers that employment was at will and that at-will status could be modified only in writing by the employer’s president.

The NLRB found both provisions to be lawful. Distinguishing Red Cross, the NLRB noted that the two provisions at issue did not imply that the at-will relationship could never be changed. Rather, the disclaimers left open the possibility of modification through collective bargaining or other concerted efforts. According to the NLRB, the provisions simply reinforced the at-will employment relationship and highlighted that the employer’s own representatives have limited authority to modify at-will status. The NLRB went on to acknowledge that “[i]t is commonplace for employers to rely on policy provisions such as those at issue here as a defense against legal actions by employees asserting that the employee handbook creates an enforceable employment contract.”

While the NLRB’s advice memos do not reverse the ALJ’s findings in Red Cross, they do provide much-needed clarification on what at-will disclaimers the NLRB will find acceptable going forward. To be sure, all employment handbooks should include, at the least, a statement that "the employment relationship is at will and can be terminated by either the employee or employer at any time and for any reason.” Employers also would be well-advised to indicate that only the highest officers have authority to modify the at-will relationship, and that such modifications must be in writing. When drafting disclaimers, however, employers must be cautious to avoid language that could be interpreted to foreclose any possibility of modifying at-will status. As the NLRB’s recent guidance indicates, such language will be found to be overbroad and a violation of federal labor law.

We will keep you updated through our blog on any further developments in this area.

Discharge Over Facebook Posting Lawful

On November 8, 2011, we reported that a National Labor Relations Board Administrative Law Judge issued an interesting decision involving an employee who was discharged for posts he made on his Facebook page. The ALJ found that the employee was not discharged in violation of the National Labor Relations Act, because even though some of the employee's Facebook posts were protected, the employee's termination was based on only non-protected posts. Recently, the Board upheld the ALJ's decision, providing helpful guidance to employers on the limits of the NLRA's protections.

On September 28, 2012, the Board affirmed the ALJ's decision in Knauz Motors, Inc. (pdf) The key question was whether the employee was fired for engaging in "concerted protected activity" under the NLRA. At issue were two Facebook posts made by the employee. The first included "mocking and sarcastic" pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found, and the Board agreed, that since the food choices could impact the employee's commissions, which were a term and condition of his employment, the pictures and mocking comments were "concerted protected activity."
 

The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ's conclusion that these posts did not constitute concerted protected activity because there no was connection to the employee's terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee's discharge was not a violation of the NLRA because he was terminated for the non-protected posts, and not the posts regarding the sales event.

The Board also agreed with the ALJ that some of the employer's policies were overly broad in violation of the NLRA, including the employer's Courtesy Policy. The Courtesy Policy provided: 

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.

The Board held that the prohibition on "disrespectful" conduct and "language which injures the image or reputation of the Dealership" could be construed to prohibit protected activity, and therefore, was unlawful.

While there is some good news in the Knauz Motors decision, specifically that there are limits to the protection afforded to employees who take to Facebook to mock their employers, there continues to be frustration regarding the broad reading of the NLRA. As a result of the Knauz Motors decision, some employers may need to update their policies, again.

NLRB Decisions Suggest that Section 7 Disclaimer Could Save Vague Policies

As readers of this blog surely are aware, the National Labor Relations Board (NLRB) has embarked on a crusade against overbroad social media policies and handbook language. Notably, in a trio of social media reports, the NLRB’s Office of General Counsel suggested that prohibitions on offensive, demeaning, and inappropriate comments or statements that could damage the reputation of the company or its employees are unlawfully vague and could have a chilling effect on employee communications critical of the terms and conditions of their employment. Moreover, the Office of General Counsel expressed its opinion that the inclusion of a Section 7 disclaimer would not save ambiguous policies. Recent decisions, however, signal that the NLRB has adopted a contrary position.

In September, the NLRB issued two decisions striking down two such anti-disparagement policies as overbroad. In both decisions, though, the NLRB was critical of the fact that the policy in question did not include language excluding protected Section 7 communications from its broad reach. While the NLRB rulings do not go as far to say that a disclaimer of restrictions on Section 7 activity would cure a vague policy, the NLRB’s analysis suggests that a disclaimer could be effective. Specifically, the NLRB reasoned that such limiting language would reduce the likelihood that employees could reasonably construe the policy as applying to protected concerted activity.

In light of these recent decisions and the flurry of NLRB activity in this area, both unionized and non-unionized employers should revisit their social media policies and employee handbooks to ensure they could survive the NLRB’s scrutiny. In policies prohibiting disparaging comments, whether at work or on social media, employers would do well to include specific examples of what is not allowed—e.g., language that is vulgar, obscene, threatening, harassing, or malicious. In addition, employers should incorporate into their policies language disclaiming an intent to interfere with an employee's Section 7 rights, including the right to discuss wages, hours, or other terms and conditions of employment.

NLRB Decision Could Interfere With Workplace Investigations

This post was contributed by Rick L. Etter, an associate in McNees Wallace & Nurick LLC's Labor and Employment Group.

The National Labor Relations Board recently issued a decision holding that an employer violates the National Labor Relations Act by establishing workplace investigation procedures, policies, or forms that attempt to prohibit employees from discussing ongoing workplace investigations with their coworkers. Specifically, the Board concluded that such a rule violates Section 7 of the NLRA, which protects employees’ rights to engage in “concerted activities” for their mutual aid and protection.

In Estrella Medical Center, the employer established a standard investigation process that included the reading of six introductory statements before each witness interview. One of the six statements was a confidentiality statement instructing the witness that he or she was prohibited from discussing matters related to the investigation until the investigation was complete. The Board determined that the employer failed to establish that its interest in protecting the integrity of the at-issue investigation outweighed the employee’s Section 7 rights because the employer developed a “blanket approach” of reading this statement before every interview. The Board explained that it is the employer’s burden to determine – on a case-by-case basis – whether the circumstances of each specific investigation are such that witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up. Only when one of these concerns is present will the employer’s interest in protecting the integrity of the investigation outweigh the employees’ Section 7 rights.

As a result of this decision, it would be prudent for all employers – union and non-union – to review their investigation policies, procedures, and forms to ensure that they cannot be interpreted as creating a blanket prohibition against employee discussion of workplace investigations.

Three's Company: NLRB Issues Third Social Media Policy Report

This post was contributed with the assistance of Lee E. Tankle, a summer associate with McNees Wallace & Nurick LLC.  Mr. Tankle will begin his third year of law school at William & Mary School of Law in the fall, and he expects to earn his J.D. in May 2013.

The National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") released yet another social media report recently (pdf), the third report in the last nine months. The report summarizes the AGC's view on seven social media policies' compliance with Sections 7 and 8 of the National Labor Relations Act ("NLRA").  This latest report, unlike the last two reports, does provide some guidance to employers on how to craft a social media policy that the AGC would deem lawful under the NLRA. 

Importantly, Section 7 applies to all employers covered by the NLRA, regardless of whether an employers' employees are represented by a union. Section 7 provides employees the right to collectively bargain, self-organize, form, join, and assist labor organizations as well as refrain from participation in any of these activities. Section 8 prohibits employer interference with the exercise of Section 7 rights and is violated if employer activity would reasonably tend to chill employees in the exercise of their Section 7 rights.

The AGC makes clear in the report that policies that are ambiguous as to their application to Section 7 activity, and policies that contain no limiting language or context to clarify that the policy will not interfere with Section 7 rights, will be deemed unlawful. According to the AGC, the following social media policy provisions could "chill" employee rights and are unlawful under the NLRA:

• Provision forbidding release of confidential customer, employee or company information;
• Provision forbidding employees from publicly stating opinions about work satisfaction or dissatisfaction, wages, hours or work conditions;
• Provision requiring information posted about the employer to be "completely accurate and not misleading";
• Provision preventing employees from posting photos, music, videos and quotes of others without obtaining owner's permission;
• Blanket provision preventing the use of employer's logo or trademarks;
• Blanket provision banning offensive, demeaning, abusive, or inappropriate remarks;
• Provision instructing employees to think carefully before "friending" co-workers;
• Provision instructing employees to report unusual or inappropriate social media activity;
• Provision telling employees they should use internal resources rather that airing grievances online;
• Provisions requiring employees to "avoid harming the image and integrity of the company" and banning "disparaging or defamatory" remarks;
• Broad prohibition of social media use on "company time";
• Broad prohibition on employees communicating with the press; and
• Broad prohibition on employees communicating with government agencies.

Furthermore, the AGC does not look kindly upon blanket "disclaimer" provisions that merely state that policies will be administered in compliance with Section 7. These provisions are unlikely to protect an employer from a social media policy related claim. 

However, the news was not all bad.  The AGC made clear that the inclusion of examples of prohibited conduct can help clarify ambiguities.  In addition, certain disclaimer provisions may save an otherwise overly broad policy.  In addition, the following social media policy provisions were found to be lawful:

• Provision encouraging employees to be suspicious and use caution when asked to reveal confidential information;
• Provision requiring employees not to post product safety performance information;
• Provision banning online harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace;
• Provision requiring employees to seek permission before posting in the name of an employer or posting in a manner that could reasonably be attributed to the employer; and
• Provision requiring employees to state that their postings are their own and do not represent employer's positions, strategies, or opinions.

Interestingly, the AGC also provided a sample social media policy that he deemed lawful.  While the sample policy will not be sufficient for the majority of employers, and we do not suggest merely adopting the policy wholesale, it is a good start.  While it is possible to have an effective social media policy while ensuring that your employees Section 7 rights remain uninhibited, you should still be sure to craft such a policy with the assistance of counsel.  If you have any questions about your company's social media policy, please contact a member of the McNees Wallace and Nurick Labor and Employment Law Practice Group.

NLRB's "Quickie Election" Rule Held Invalid on Technical Grounds

Back in December, we posted about the National Labor Relations Board’s (Board) resolution to change union election procedures. Among other things, the pro-union rule shortened the time between the filing of an election petition and the date of the election, thereby making it more difficult for employers to communicate with employees prior to the election. Later that month, two of the Board’s three members voted in favor of adopting the rule. The third member of the Board did not cast a vote or otherwise participate in the voting process. The rule took effect on April 30, 2012.

However, on May 14, 2012, the union election rule was held to be invalid. In Chamber of Commerce v. NLRB (pdf), the US District Court for the District of Columbia held that the Board lacked authority to adopt the final rule because a quorum of its members did not participate. Specifically, under the Labor Management Relations Act, three members of the Board constitute a quorum. However, only two Members were present during the final vote approving the rule.

It is important to note that the court’s ruling addressed only the quorum issue, refusing to reach—or express any opinion on—the merits of the final rule. The court stated that the union election rule could be lawful if issued through a procedurally sound voting process.

While the court’s decision will likely be appealed, the Board issued a press release on May 15, announcing that it has temporarily suspended implementation of the new union election procedures. The Board also directed its regional directors to revert to their prior practices for election petitions and procedures.

We will keep you updated as further developments in this area occur.

NLRB Notice Posting Saga Continues: Federal Court Blocks Board's Rule

The National Labor Relations Board’s notice posting rule has been under fire since it was issued last year. In the past few months, the rule has garnered significant attention in courts around the country. The rule would require all employers subject to the Board’s jurisdiction to notify employees of their rights under the National Labor Relations Act, including the right to unionize. To that end, employers were required to post a Notice of Employee Rights in the workplace by April 30, 2012.

Earlier this week, we reported on a recent decision from the U.S. District Court for the District of South Carolina striking down the Board’s notice posting rule because it went beyond the scope of the Board’s limited rulemaking authority. The South Carolina decision followed on the heels of a decision by the District Court for the District of Columbia that upheld the posting rule. (While the D.C. court upheld the posting requirement, it struck down the part of the rule that would impose penalties on employers who failed to comply.) Business groups immediately appealed the D.C. decision to the U.S. Court of Appeals for the D.C. Circuit.

In light of these conflicting decisions, and with the end of April quickly approaching, employers were left wondering whether the Board would again postpone the effective date of the rule. Well, employers just got an answer. Or at least a temporary one.

On April 17, 2012, in response to an emergency motion, the D.C. Circuit issued an injunction blocking the Board from implementing the posting rule during the appeal. In its decision granting the injunction, the D.C. Circuit referenced the earlier South Carolina opinion and the uncertainty about the enforcement of the rule.

As a result of the court’s injunction, employers nationwide are relieved from having to comply with the notice posting rule until the conclusion of the appeal. While the appeal is on an expedited schedule, a decision is not expected until September 2012 at the earliest.