By:\u00a0 Daniel Finerty and John Murray<\/p>\n
Conventional wisdom dictates that an election year typically leads to a rulemaking slowdown among the federal agencies that regulate the workplace.\u00a0 However, in the last few months, the National Labor Relations Board has challenged that conventional wisdom by seeking to implement two new mandates on employers as well and continuing to press employers on their use of social media policies in the workplace.\u00a0 The new rules, however, have effectively been halted for the time being as discussed below.\u00a0 By contrast to the current pace of the Board\u2019s rules, it continues to challenge employers\u2019 use of social media policies in discipline and discharge cases to ensure that unions and employees can continue to use social media to communicate.\u00a0 In sum, there is no sign that things are slowing down at the Board in this election year.<\/p>\n
\u201cFast Track\u201d Election Rules<\/strong><\/p>\n For two weeks in May, the National Labor Relations Board\u2019s \u201cfast track\u201d election rules were in effect.\u00a0 These rules dramatically reduced the time frame between a union\u2019s filing of a petition for an election and the election itself.\u00a0 Apparently, roughly 150 election petitions were filed during the two weeks these rules were in effect.<\/p>\n On May 15, 2012, the federal district court for the District of Columbia issued an order which invalidated these fast track election rules.\u00a0 The court held that the rules were not validly enacted because the Board only had two members vote before the rules were enacted. \u201c[T]wo is simply not enough,\u201d the court held.<\/p>\n For the time being, employers have a reprieve from these rules.\u00a0 However, the Board has several avenues open to it to revive them.\u00a0 First, the Board could appeal the court\u2019s ruling.\u00a0 The chances of a successful appeal appear bleak.\u00a0 The Supreme Court ruled in 2010 that the Board could not function as a body without the necessary quorum of three members.\u00a0 Since all three members did not vote on the fast track election rules, the chances the Board would succeed on such an appeal are grim.<\/p>\n On June 11, 2012, the NLRB asked the judge who invalidated the fast track election rules to reconsider his decision.\u00a0 In its motion, the Board argues that the judge had a mistaken understanding of the facts.<\/p>\n The Board provided evidence showing that the third Board member was \u201cpresent,\u201d logged on to the voting system, acted on matters before and after the fast track rules came up and deliberately abstained from voting.\u00a0 If so, the judge could find a valid quorum existed when the rules were passed, reverse course and permit the fast track election rules to (again) go into effect.<\/p>\n Employee Rights Notice Posting<\/strong><\/p>\n The Board\u2019s recent rules have not fared well in court.\u00a0 It has received unfavorable decisions in three separate cases pending in two separate federal courts relating to its employee rights posting rule.\u00a0 The posting required by this rule was similar to postings required by Title VII and other federal and state laws.\u00a0 The rule applied to most private sector employers, even ones that did not have a union.\u00a0 The district court for the District of Columbia ruled that the penalty provisions of the rule were invalid.\u00a0 Soon thereafter, a federal district court in South Carolina ruled that the entire rule was invalid.\u00a0 On the heels of these two decisions, the federal appeals court for the District of Columbia issued a temporary halt to the enforcement of the rule in order to allow time to consider the objections to its validity.<\/p>\n The Board could re-submit the \u201cfast track\u201d election rules and a revised version of its employee notice posting rule to its current quorum of four members.\u00a0 While the Board is typically made up of five members, Member Flynn has resigned his position and recused himself from voting on any agency business.<\/p>\n Social Media<\/strong><\/p>\n Regardless of whether the Board tries to implement these rules, it is continuing to press employers on social media policies.\u00a0 On May 30, 2012, the Board issued its third guidance memorandum regarding its analysis of employer social media policies.\u00a0 Prior memos were issued in January 2012 and August 2011 memos.<\/p>\n Together, all three memos discuss the Board\u2019s legal analysis in 35 cases involving employer\u2019s use of social media policies.\u00a0 Of the seven cases discussed in the most recent memo, the Board found the employer\u2019s policy in violation of the National Labor Relations Act in six cases.\u00a0 In the seventh case, the Board found the employer\u2019s social media policy valid only as modified.<\/p>\n The Board may find that an employer\u2019s social media policy violates Section 8(a)(1) of the NLRA when it reasonably tends to interfere with employees\u2019 rights to discuss their wages and other terms and conditions of employment.\u00a0 Online employee discussions may constitute protected activity under the NLRA.\u00a0 As a result, policies that explicitly restrict employee discussions of wages and other terms and conditions of work are generally prohibited.<\/p>\n Policies that do not explicitly restrain protected activities may still be prohibited if employees would reasonably construe the policy to do so, the rule was promulgated in response to union activity or the rule has been applied to employees engaging in protected activity.<\/p>\n However, the Board recently made clear that the NLRA does not protect regular employee \u201cgripes\u201d about the workplace.\u00a0 For example, a single employee\u2019s lone complaint posted online about a fellow employee and their work product did not constitute protected activity.<\/p>\n First, the fellow employee\u2019s poor work product did not adversely impact the working conditions.\u00a0 Second, the concerns expressed only had a tangential relationship to the employee\u2019s terms and conditions of work.\u00a0 As a result, the employee\u2019s \u201cgripes\u201d about the fellow employee were not protected and no violation of the NLRA was found.<\/p>\n Conclusion<\/strong><\/p>\n The Board continues to press its agenda on several fronts to ensure that unions and their supporters grow or, at the very least, maintain, a foothold in the American workplace.\u00a0 That said, the November presidential election will likely be a key defining moment for the Board\u2019s regulatory agenda between 2013 and 2016.<\/p>\n Either the Board\u2019s regulatory activity will continue and possibly intensify.\u00a0 If so, the Board may re-issue the foregoing rules and issue final rules that regulate employers\u2019 relationships with their human resources and labor relations attorneys and partners.<\/p>\n Or the Board\u2019s regulatory agency will slow dramatically and may grind to a halt.\u00a0 In this case, the Board would continue to regulate employers through the traditional avenues involving its charge procedures and election certification petitions.<\/p>\n If you have any questions about this material, please contact Daniel Finerty, John Murray or any other attorney you have been working with here at Lindner & Marsack, S.C. at (414) 273-3910.<\/p>\n","protected":false},"excerpt":{"rendered":" By:\u00a0 Daniel Finerty and John Murray Conventional wisdom dictates that an election year typically leads to a rulemaking slowdown among the federal agencies that regulate the workplace.\u00a0 However, in the last few months, the National Labor Relations Board has challenged that conventional wisdom by seeking to implement two new mandates on employers as well and 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