- EFCA IS DEAD -- LONG LIVE THE NLRA! The NLRB Seeks to Expand Existing Law Without Amendments
- July 15, 2011 | Author: Bruce J. Douglas
- Law Firm: Larkin Hoffman Daly & Lindgren Ltd. - Minneapolis Office
We haven’t seen this much public attention paid to the National Labor Relations Board (NLRB) since the mid-1980s when, it seems, a newly appointed Republican majority of Members reversed course in a number of important cases that had been decided by the Democratic majority Members during the 1960s and 1970s. Now, with proposed rulemaking and an apparently invigorated Board and General Counsel’s office, it appears that the agency may be able to implement some of the key provisions of the failed Employee Free Choice Act (EFCA) without amending the statute.
A Poster for Every Employer’s Bulletin Board and Email?
In what may be the most far-reaching initiative yet by the NLRB, for the first time since enactment of the NLRA in 1935, the Board proposes in a new rule to require all employers subject to its jurisdiction - which is nearly every private sector employer in the United States - to post in its premises a poster informing employees of their rights under the NLRA. And, the Board wants employers to publish that notice via email if the employer routinely communicates with its employees in that manner (and which employer these days does not?). Alone among federal agencies that regulate the workplace and which require posters, the NLRB has never required such a posting by employers, and the statute, unlike other federal laws, does not provide for it.
Under the proposed rule, which was published on December 22, 2010 and which has received more than 6,000 comments during the comment period, which closed on February 22, 2011, employers would be required to post a poster similar to the familiar posters required by, for example, Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, and the Polygraph Protection Act of 1988. Proponents of the new rule argue that most employees in the United States, where less than 10 percent of the private sector civilian workforce is represented by a union, are unaware of their rights to form and join unions, or not, under section 7 of the NLRA. Employers who fail or refuse to post the notice and to distribute it by email could be found guilty of an unfair labor practice and be required by an order of the NLRB to post the poster and disseminate it by email.
Business interests and some legal scholars question whether the Board has the authority under the NLRA to order employers to post a poster or to create a new type of unfair labor practice violation for failure to do so. Although it has seldom used it in the past, the Board has the authority to promulgate substantive rules to further the policies and purposes of the statute. Previously, the Board has adhered to an approach of announcing substantive rules in its decisions on a case-by-case basis and issuing procedural rules (the health care bargaining unit rules being an exception). It remains to be seen whether this type of regulation would be upheld by the federal courts or whether it, too, may lead to legislation to block its implementation.
The Board’s new poster rule is only one of a series of actions that it has taken to elevate the visibility and reach of the NLRA. Let’s take a look at the Board’s recent activities.
Remedial Notice Postings Also Must be Sent by Email
Last year, the Board decided in a case that it would require as part of its standard remedy in unfair labor practice cases that the party found to have violated the National Labor Relations Act (NLRA) would be required to email the poster to all affected employees if the employer customarily communicated with its employees in that fashion. Previously, and for the past roughly 75 years, employers or unions found to have violated the NLRA merely had to post a large blue and white poster on one or more bulletin boards for 60 days.
The NLRB Wants to Be Every Employee’s Friend
Moving into the internet and social media age, the Board has taken the position that in some instances employees who publish critical remarks regarding their employers on social media sites such as Facebook may be engaged in protected concerted activity under section 7 of the Act. In one well-known case, an employer in Connecticut settled a ULP claim arising out the firing of an employee who published derogatory remarks about it on her Facebook page. The employer agreed to modify what the agency argued was an overly broad rule prohibiting such comments. In another case in the Buffalo, New York region, a non-profit employer fired five workers for similar conduct, and the Region issued a complaint in a case that remains pending. In yet another case, the regional director in Chicago issued a complaint against an auto dealership for allegedly illegally discharging a salesman who had written critical remarks on Facebook about his employer.
But, free speech has its limits. In a case that was submitted to the Board’s Division of Advice, employees of the Arizona Daily Star newspaper published “Tweets” on their Twitter pages that were critical of co-workers, referring to certain of the company’s television reporter as “stupid” (this was one of the milder comments). The employer discharged certain employees, who had used both company-computers and phones and their home computers to “Tweet.” The Division of Advice determined that the employees had gone too far. Unlike the Connecticut case, which turned on an alleged overly broad policy, here the employer had responded to specific instances of misconduct and had fired the employee for “writing inappropriate and offensive Twitter postings that did not involve protected concerted activity.” The regional director was directed to dismiss the unfair labor practice charge, absent withdrawal by the charging party.
We may expect the regional offices and the Board to continue to deal with the more novel forms of communication in which employees now have the opportunity to engage. Also, the Board’s willingness to dive into this area may be yet another aspect of its efforts to elevate the profile of the agency and the NLRA.
Streamlined Election Procedures
In June 2011, the Board announced new, streamlined procedures in representation cases (elections) that would vastly reduce the timeline in these cases and expedite the holding of elections. Notably, it would allow most challenges to the election procedures to be heard after the election is held and in conjunction with any unfair labor practice charges that arise out of the campaign and election. Currently, those matters must be dealt with in the representation case hearing prior to the election and cannot be litigated in a subsequent unfair labor practice case. Unions strongly favor the proposed regulations, which would shorten the time available to employers to conduct their campaigns to persuade workers to vote against a union. Business interests strongly oppose the proposed regulations.
The Boeing Case
Then, there is the recent flap over the General Counsel’s decision to issue a complaint against Boeing Co. challenging its action to open a second production line for its Dreamliner aircraft in a plant in South Carolina, a right to work state, where union representation is more modest than in Washington. That led the chair of the House Education and Workforce Committee, Rep. John Kline (R-Minn.) to take the unprecedented action of writing to NLRB Acting General Counsel Lafe Solomon requesting that he produce documents and testify before the committee regarding a pending unfair labor practice case. And, the Chair of the House Committee on Oversight and Government Reform, Rep. Darrell Issa (R-Calif.) threatened to subpoena Solomon if he did not agree to testify voluntarily before his committee. The controversial complaint issued by the General Counsel also prompted three Members of Congress from South Carolina to introduce a bill to bar the type of remedy sought in the complaint. Finally, non-union South Carolina workers have sought to intervene in the unfair labor practice case.
NLRB Sues Arizona Over Secret Ballot Issue
As if that were not enough, the NLRB has sued in federal court the state of Arizona, which last year enacted an amendment to the state’s constitution that prohibits employers from voluntarily recognizing a union that has not been elected in a secret ballot election. The amendment was an attempt by the state to blunt a provision of the now improbable EFCA that would have allowed the Board to certify unions as exclusive bargaining representatives based on signed petitions or authorization cards (the so-called card-check provision). Several other states, including Utah, South Dakota, and South Carolina have enacted similar laws, and they have been put on notice by the General Counsel that they will be sued as well. The Board contends that those laws are preempted by the NLRA, which governs all private sector labor relations issues (except in the airline and railroad industries). Meanwhile, legislation has been introduced in the House of Representatives to bar suits of this kind by the Board against states. All in all, it looks to be a very active period for the NLRB and for employers, who thought that they had dodged a bullet with the apparent demise of the Employee Free Choice Act. Now, it seems that the same agenda can be advanced by the new Board majority without the need for legislative action.