• Top Five Labor Law Developments for July 2018
  • August 28, 2018 | Authors: Richard I. Greenberg; Chad P. Richter
  • Law Firms: Jackson Lewis P.C. - New York Office; Jackson Lewis P.C. - Boston Office
    1. Business lobbyists reportedly are urging the Trump Administration to not re-nominate National Labor Relations Board (NLRB) Member Mark Gaston Pearce (D) for a third term. Pearce’s term at the five-member Board is scheduled to expire on August 27, 2018. Pearce has drawn the ire of business groups for what many believe to be an anti-business approach on many issues before the Board. Pearce would like to be re-nominated and remain on the Board. It is unclear whether Congressional Democrats will pressure the Administration to re-nominate Pearce and whether Pearce would have the votes to be reconfirmed if he is re-nominated.
    2. The Board’s decision-making processes are going through significant changes. Memorandum ICG 18-06 from Associate to the NLRB General Counsel Beth Tursell outlines plans to centralize representation case decision writing, to streamline the Division of Advice’s review of unfair labor practice charges, and to encourage Board Regional Directors to delegate decision-making authority to supervisors, including for approving dismissals, withdrawals, and some settlements. Additionally, the Memorandum announces establishment of new committees within each NLRB region that will consider certain pre-election disputes, research election issues, and draft orders for review by regional directors. This follows NLRB General Counsel Peter Robb’s earlier announcement to regional directors that he hopes to consolidate the Board’s regional offices. That proposal was met by resistance from many Board staff members.
    3. The U.S. Department of Labor’s “persuader” rule was rescinded on July 17. The regulation would have expanded reporting by consultants working on behalf of employers engaged in union election campaigns. On March 24, 2016, the Department of Labor (DOL) had published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA). Under the DOL’s proposed interpretation, employers/clients, as well as consultants/attorneys, would have been required to report to the DOL all arrangements in which an “object” (directly or indirectly) of the services provided by the consultant/attorney was to persuade employees about the manner of exercising the employees’ “right to organize and bargain collectively through representatives of their own choosing” under federal labor law.
    4. The NLRB is reconsidering employees’ right to use their employer’s email system for union organizing and other protected activity. On August 1, 2018, the NLRB invited the public to file briefs on whether the Board should overrule Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held employees who have been given access to their employer’s email system for work-related purposes must be permitted to use that system, on non-working time, for National Labor Relations Act (NLRA) Section 7 communications, unless the employer can demonstrate that special circumstances necessary to maintain production or discipline justify restricting that right. The Board in Purple Communications had overruled Register Guard, 351 NLRB 1110 (2007), where it held employers could lawfully restrict employees’ non-work email use as long as they do so in a non-discriminatory manner. In its invitation for briefing, the Board asked the public: 1) whether it should adhere to, modify, or overrule Purple Communications; 2) what standard should replace Purple Communications, if overruled; 3) if Register Guard is revived, what exceptions should be maintained for employee use of email, if any; and 4) how electronic communication systems other than email should be treated, whether or not Purple Communications is overruled.
    5. An employer did not violate the Act when it terminated an employee who violated the employer’s policy against sharing certain confidential documents on social media, the Board’s Division of Advice has found. Kumho Tires, 10-CA-208153 (Div. of Advice, June 11, 2018, released July 2018). The employee had posted on social media a photograph of another employee’s bonus request form. The employer argued that the employee violated the employer’s social media policy against sharing “internal reports, policies, procedures, or other internal business-related confidential communications.” The Division of Advice found the work rule was lawful under The Boeing Company, 365 NLRB No. 154 (Dec. 15, 2017), because employees would be unlikely to interpret the rule as restricting the sharing of information lawfully in employees’ possession. The Division also found the rule was lawful as applied in the termination, because the employee was not authorized to have another employee’s bonus request form.