Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Motions for summary judgment were filed in two cases challenging the NLRB's notice-posting rule that requires private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. Both the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation, Inc. filed suit against the NLRB asserting that the NLRB has no statutory authority to promulgate the rule. The plaintiffs in both cases, which were consolidated, seek an order enjoining the NLRB from implementing or enforcing the rule.

In the National Right to Work's motion, it asserts:

The Board’s decision to issue the Notice Posting Rule, 76 Fed. Reg. 54,006 (Aug. 30, 2011), and compel approximately six (6) million employers to post a permanent notice upon pain of severe legal sanctions exceeds its statutory authority under the NLRA, 29 U.S.C. § 141 et seq., and, therefore, is unlawful under Section 706(2)(C) of the Administrative Procedure Act (“APA”), 5 U.S.C § 706(2)(C). Because the Notice Posting Rule and the sanctions it imposes are inconsistent with the NLRA’s unambiguous text and are unreasonable, it must be vacated under the familiar two-step analysis of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Similarly, NAM argues:

The Board is wholly without statutory authority to promulgate the Rule. As an agency of limited jurisdiction under the NLRA, the Board is not permitted to coerce employers who are not engaged in representation elections or unfair labor practices into posting notices to their employees, upon penalty of committing an unfair labor practice. Congress has deliberately withheld such authority for the past 75 years, and nothing in the Board’s general rulemaking powers entitles the Board to expand its jurisdiction in the face of such clear Congressional intent.

The NLRB originally announced its final notice-posting rule on August 30, 2011, which was to become effective November 14, 2011. However, the NLRB postponed implementation until January 31, 2012, "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." The NLRB made no mention of this pending litigation as a reason for the postponement.

A hearing on the motions is currently scheduled to be held in December. In the meantime, employers should continue to prepare to post the required Notice in the workplace by January 31, 2012. We will update the blog once any new information regarding these lawsuits becomes available.

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In response to the National Labor Relations Board's proposed changes to the rules governing representation elections, the House Committee on Education and the Workforce voted to send Committee Chairman John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) bill to the floor earlier this week.

The bill would guarantee that no representation election is held within 35 days after the filing of a petition and provide for a two-week waiting period before the hearing could be held. In addition, the bill also seeks to undo the NLRB's recent decision in Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), where the Board overruled 20 years of practice regarding how it determines the "appropriate unit" for the election.

When the NLRB announced its intent to change election procedures earlier this year, it claimed that "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, the proposed amendments to the NLRB's Rules and Regulations will also have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

The House bill follows on the heels of the Senate's “The Fair Representation in Elections Act of 2011” (S. 1425), which similarly requires that no election is held within 40 days after the filing of a petition.

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Today the National Labor Relations Board announced that it is postponing the implementation date for its new notice-posting to January 31, 2012. The notice-posting rule, which requires private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act, was to become effective November 14, 2011.

According to the NLRB, the postponement is "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses" following

queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board's jurisdiction, and [the postponement] was made in the interest of ensuring broad voluntary compliance.

Suppressing any potential speculation that the NLRB will modify or retract the Rule, the NLRB's notice states that "[n]o other changes in the rule, or in the form or content of the notice, will be made."

The NLRB originally announced its final notice-posting rule on August 30, 2011. Since then the National Association of Manufacturers (NAM) filed suit in the District Court for the District of Columbia, seeking to enjoin the Rule, alleging that it is "in excess of the Board's statutory jurisdiction, authority, limitations and rights." NAM has requested preliminary and permanent injunctions against implementation and enforcement of the Rule, but no ruling has been made to date.

Employers should continue to follow developments regarding the Rule because, absent an injunction, most private sector employers will be required to post the required Notice in the workplace as of January 31, 2012. We will update the blog once any new information regarding the NAM lawsuit becomes available.

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Last week, another National Labor Relations Board ALJ ruled in part for, and in part against, a Chicago area car dealership on a Board Complaint arising out of the employer's response to an employee's Facebook posts.  In Knauz BMW, the Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the conduct for which he was fired did not constitute protected activity.

The employer's handbook policies included rules (a) prohibiting "Bad Attitude," (b) mandating "Courtesy," (c) prohibiting "Unauthorized Interviews", and (d) prohibiting employees from answering any "Outside Inquiries Concerning Employees."  The ALJ described them thus:

The allegedly unlawful provision of paragraphs (a) and (b) state: “A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraphs (c) and (d) prohibit employees from participating in interviews with, or answering inquiries concerning employees from practically anybody. 

The ALJ applied the standards set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). questioning primarily whether "employees would reasonably construe the language to prohibit Section 7 activity."  He concluded that (b), (c) and (d) all violated the Act as they "clearly would be understood to restrict and limit employees in the
exercise of their Section 7 rights."

The Charging Party in the case had posted a number of photos and comments on his Facebook account involving the BMW dealership and a sister Land Rover dealership.  He had posted a series of sarcastic and critical posts about the perceived inferior food served at a sales event at his dealership.  Around the same time, he posted photos he had taken of a vehicle accident arising out of a test drive at the sister dealership with similarly snide commentary.  At least fifteen or sixteen of his co-workers were Facebook friends with access to these posts and many responded to them.

The ALJ held that the commentary -- rife with mockery -- about the food at the sales event was protected, as the success or failure of such an event might have a direct impact on employees' sales commissions.  He also concluded, however, that the Charging Party was not terminated because of these posts, but rather because of the posts regarding the Land Rover accident.  That behavior, he decided, was not protected: 

It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

Concluding that he was terminated solely for that incident, the ALJ held that the terminated did not violate the Act.

This is the second ALJ decision on a Complaint arising out of employer response to employee social media use.  Earlier this month, in Hispanics United of Buffalo, a judge ruled that a non-profit violated the Act by terminating employees for their Facebook posts regarding a co-worker's complaints.

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