Archive for the 'NLRB' Category

Losing Sight of the Forest for the Trees . . . or maybe the Trees for the Forest? Either way, it’s bad.

Someone who can’t see the forest for the trees has typically become so focused on details that he or she begins to ignore the overall situation. . . . As early as the 1500s, “you can’t see the forest for the trees” was in wide enough use that it was published in collections of proverbs and slang.

* * *

This proverb is also sometimes reversed, as in “you can’t see the trees for the forest,” referencing the idea that it is also possible to be too broad when looking at a situation. Someone who makes sweeping pronouncements without considering various details could exhibit just as much of a logical flaw as someone who only focuses on the details.

See http://www.wisegeek.org/what-do-people-mean-when-they-say-someone-cant-see-the-forest -for-the-trees.htm.

I haven’t decided which one of these applies, but on March 31, 2015 the NLRB lost sight of something that’s for sure.  Maybe it was common sense? In a case called Pier Sixty, LLC, 02-CA-068612 and 02-CA-070797 (March 31, 2015) the Board found that the employer Pier Sixty violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it fired an employee for posting on his Facebook page that his supervisor was a “NASTY M—ER F—ER.” That’s right, the Board ordered reinstatement of the employee who posted that language on a Facebook site that could be viewed by, according to the Board, “his Facebook friends, which included some coworkers and to others who visited his personal Facebook page.” OK, so let that sink in a bit, and I will try to catch my breath before I try to explain what the Board did here.

So here is exactly what this classy guy posted:

Bob is such a N—Y M—ER F—ER don’t know how to talk to people!!!!!! F–k his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

OK, it’s not exactly what he posted; he filled in the blanks. And when one of your employees posts something like this, you want to fire him, right? Of course you do, and when you call me and ask me if it is legal to do so, I was going to say, yes it is. And, at least according to the Board, in this case, I would be wrong. You see, the Board said:

“We agree with the judge that Perez’ Facebook comments, directed at McSweeney’s asserted mistreatment of employees, and seeking redress through the upcoming union election, constituted protected, concerted activity and union activity. As stated by the judge, “Perez’ Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers, including McSweeney.” Toward that end, Perez’ Facebook posting protested such mistreatment and exhorted employees to “Vote YES for the UNION.”

“We also agree with the judge that Perez’ comments were not so egregious as to exceed the Act’s protection.”

What? Or, if I was the employee in this case, WHAT???????

That is seeking redress of mistreatment through the upcoming union election? That is “not so egregious”? You have got to be kidding me!

Easy, easy now. So how did the Board get to this decision? Well, they used a 9 factor test from a previous case.

“In evaluating Perez’ posting under the totality of the circumstances, the judge considered the following factors: (1) whether the record contained any evidence of the Respondent’s anti-union hostility; (2) whether the Respondent provoked Perez’ conduct; (3) whether Perez’ conduct was impulsive or deliberate; (4) the location of Perez’ Facebook post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the Respondent considered language similar to that used by Perez to be offensive; (8) whether the employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline imposed upon Perez was typical of that imposed for similar violations or disproportionate to his offense.”

And then, after an “objective review” of these factors the Board said: “We find that an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.” Now the Board went through each one of these factors and found that they did not support termination of the employee. But here are my two favorite comments:

“The location and subject matter of Perez’ post (factors four and five) also do not weigh in favor of finding that Perez’ comments lost the protection of the Act. He posted his comments while alone, on break, and outside the Respondent’s facility. There is no evidence that his comments interrupted the Respondent’s work environment or its relationship with its customers. Further, his comments echoed employees’ previous complaints about management’s disrespectful treatment of service employees and encouraged employees to vote in favor of union representation.”

He posted his comments “while alone, on break and outside.” Are you kidding me? He posted his comments on Facebook where, as the Board itself admitted, they could be viewed by “his Facebook friends, which included some coworkers and . . . others who visited his personal Facebook page.” But wait, as the Board said, these comments encouraged employees to vote in favor of the union? Again, are you kidding me? Does that mean if I stick “Vote YES for the UNION” on any statement I make, it gets the protection of the Act?

And here is my second favorite “rationalization” in this opinion: “Nor was Perez’ reference to McSweeney’s family beyond the Act’s protection. We agree with the judge that Perez’ comments were not a slur against McSweeney’s family but, rather, “an epithet directed to McSweeney himself.” Of course it was. I wasn’t really talking about your family, I was talking about you. And that makes it so much better.

And just one more little thing, the Board actually said: “Although we do not condone Perez’ use of obscene and vulgar language in his online statements about his manager, we agree with the judge that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’ conduct did not lose the Act’s protection.” Sorry, but it looks to me like the Board does condone his language. After all, they gave him his job back.

What does all this mean? Well, strictly speaking from a legal point of view, it means that these social media cases, which were hard enough to figure out just got harder. It means that no matter what an employee says, no matter how bad it is, if you have a union election campaign going on, you need to look at everything that is going on in the workplace before you fire him.

And it seems to me it means one more thing. The Board has lost sight of the forest for the trees.

Can you get a degree in Football? Well, maybe you should?

“Everybody’s talkin’ at me, I don’t hear a word they’re saying.”  Harry Nilsson said that.  You think he was talking about the NLRB and Northwestern Football?  Neither do I, but I like the song. In case you have not guessed, we are taking a bit of a break from the FLSA series.

So, as you have all heard, the Regional Director of Region 13 of the NLRB has decided that “grant in aid scholarship football players at Northwestern University are employees entitled to organize and collectively bargain under the National Labor Relations Act.”  It’s everywhere. ESPN is talking about it.  CNN is talking about it.  The New York Times is talking about it.  Why this happened and what it means will be debated until ultimately the Supreme Court of the United States decides the issue and yes, that is what probably is going to have to happen.  And what is really sort of funny about the whole thing is, by the time this is all settled, years from now, all of the Northwestern players who are pushing for this will have long since graduated.

So what exactly did the Regional Director discover that led him to believe after 145 years (according to Wiki, the first college football game was played between Rutgers and Princeton in 1869) that college football players are “employees”?  Well, the first thing he decided was that the appropriate definition for determining who an employee is under the NLRA was the “common law” definition of employment.  According to the Regional Director, “Under the common law definition, 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.”  Northwestern University, Case 13-RC-121359 (2014).  I’m not going to get into whether this is the right test, I don’t think it is, but it is the one he used.  Then he basically found the following:

The scholarship football players perform a service which benefits the university and they are compensated for it with a scholarship.

The tender of the scholarship to the players and the acceptance to play football in exchange for the scholarship amounts to a contract for hire.

The scholarship players are under the control of the University for the entire year at the risk of losing their scholarship.

Id.

The Regional Director then went on to dismiss the University’s argument that the NLRB’s decision in Brown University, 342 NLRB 483 (2004) governed because, unlike the grad students in Brown that the Board found were not employees, football players spend a lot of time, not a “limited number of hours” performing their “duties” as players, football is not a “core element” of the degree program like teaching is for grad students, football coaches are not “members of the faculty” like supervisors were in Brown, and grad students’ pay in Brown was “financial aid” not pay for services performed.

So what next?  Well, this is not the end.  As I mentioned above, this is going to be appealed and it will be going on for a long, long time before there is any final decision.  So what does Northwestern do between now and then?  How about offer a degree in Football?  Yes, I said it, offer a degree program in Football.   Why not?  What do we hear over and over again?  “These football players aren’t really in school to get a degree, they are just preparing for the NFL.”  OK, if that is true then prepare them like you would for any other job.  Give them a degree.  Kills two birds with one stone.  First, it takes care of the hypocrisy of calling a student athlete a student when all he is really trying to do is get into the draft.  Now he is working toward a degree that will help him in his chosen profession (OK, that’s reaching a bit).  And, at the very least, it takes care of the Director’s issues, doesn’t it?  Practice is now a class in “Offensive Line Blocking Theory” or “Route Running 305.”  Film study is a 3 credit class called “The Theory of Football.”   Only games and travel aren’t classes now.  So that would be what?  How about a “limited number of hours on their duties” like the grad students in Brown.  Football isn’t a core element of the academic program?  Well, if I’m trying to get a degree in Football it is, now isn’t it?  And those coaches that aren’t members of the faculty, they are now.  The strength coach, he is teaching my “Weightlifting” class.  And the head coach, he is now teaching things like “Leadership On and Off the Field: Theory and Practice” or “Basic Coaching 101.”  Oh, and those scholarships that the Director called “pay for performance of a service?”  Not anymore.  Now they are just financial aid so I can work toward my degree in Football.  We can even wrap this up in a nice little bow if we can talk the NFL and NFLPA into putting a degree requirement into the next CBA.  And you know what?  It will work for basketball too.

Ridiculous you say?  Crazy you say!  Who would take a Football degree you say?  Football players, that’s who.  And what reputable university is going to offer a degree in Football or Basketball?  How about all of them.  You tell me, how is playing football for a major university any different than playing the oboe in a university orchestra?  That’s right, the oboe.  Northwestern happens to have a very good music program that offers degrees in everything from Conducting and Ensembles to Voice and Opera.  They offer Music Theory and Music Composition.  They offer undergraduate and graduate degrees and students have to audition to get into the Bienen School of Music to . . . play the oboe.

The Audition and Program Requirements Guide for the 2013-2014 academic year is 19 pages long and requires aspiring oboe students to perform “Suggested Solo Selections such as Concerto by Cimarosa, Marcello, Handel, Mozart, or Vivaldi” among other requirements.  I’ll bet some of these students perform in concerts and I’ll bet some of these concerts are after hours and even on Saturdays.  Sounds like a football game.  I’ll bet the University even charges admission for some of these shows so they are getting a monetary benefit.  Sort of like football tickets.  And I’ll bet, if we looked hard enough, we could find some rich old person who donates a boat load of money to the University because he or she likes the orchestra.  Except for the dollars that change hands, not so different from football, now is it?   Oh, and by the way, according to Northwestern’s literature,

The Bienen School of Music offers merit-based scholarship grants to students who have presented exceptional applications and auditions. These grants are based upon musicianship, scholarship, leadership and a demonstrated personal commitment, as well as on departmental needs. We award over $4 million annually to the students in our graduate programs.

So at least at the graduate level, these kids are getting paid to come to school too.  To Play The Oboe.  And I don’t hear anybody calling the best oboist at Northwestern an employee.

So problem solved, Northwestern, offer a BA in Football.  Oh, and by the way, before you tell me there are no jobs for people with a football degree, in 2011 there were about 1,700 professional football players in the NFL.  And that does not include jobs as coaches, trainers or talking heads on TV and radio.  According to Wiki, in 2007 there were 117 U.S. orchestras with annual budgets of $2.5 million or more (that is just a bit more than one year’s pay for the average NFL player).  According to Wiki Answers, the average orchestra has three or four oboists.  If my math is right, that is 468 full-time oboists in big-time orchestras.  I like the odds in football better.

Now before you all get all worked up, yes, I’m kidding, but only sort of.  You see, Northwestern should not have to be making these decisions and we should not have to be talking about whether college football players are employees.  Yes, the University makes a lot of money from football and basketball, and yes, because of stupid and I mean stupid, NCAA rules, players sometimes have to scrimp or break those rules to get by while the University makes a lot of money, but two wrongs don’t make a right.  Don’t like the NCAA rules and think they should be changed?  Good for you, work to change them.  Big universities with a lot of power like those in the Big 10, for example, are eventually going to tell the NCAA to drop dead and drop out anyway.   Should big‑time programs provide health care for these players?  Yes probably and that, by the way, may end up being one of the unintended consequences of this decision.  So, if we change football to a degree program, do we get out from under these NCAA rules?  Does the NCAA govern academic scholarships?   I don’t think so.

But that is not what this blog is all about nor is it why this decision came down the way it did.  In my opinion, this decision did not come down the way it did because anyone really thinks these kids are employees of the University.  It came down the way it did because the NLRB continues to reach beyond what it has traditionally done and unions are trying to stay relevant.  Don’t forget, in their heyday, unions represented about 35% of the private sector workforce, whereas today that number is about 6%.  Unions even have trouble winning elections when the employer stays neutral and wants the union.  Just look at what happened to the UAW in Tennessee recently.  And this is just the latest headline in what has been a constant stream of headlines highlighting this continued effort by the NLRB to expand its reach.  Let’s just look at the last couple of years:  First the NLRB GC issues a series of memorandums dealing with social media in the non-union workforce, extending Section 7 protections way past what anyone envisioned them to be.  Seems the GC thinks that companies can’t even control the use of their own logo.  Then the Board reaches well beyond its authority and tries to implement a poster requirement which has to be knocked down by the courts.  The Board continues to try to apply its D.R. Horton decision despite several courts rejecting its logic.  And the Board has even issued complaints claiming that the most common provision in any employee handbook, the at-will provision, is an unfair labor practice.

So if all of this is going on and you are a union, you hitch your wagon to some disgruntled college kid and try to make headlines. Oh, and one final thing:  I think it is interesting that one of the things the spokespeople for this particular union claims is that football interferes with academic success.  Maybe at some schools, but Northwestern?  According to the Regional Director’s decision, Northwestern players have cumulative GPAs of 3.024, graduate at a 97% rate and have an Academic Progress rate of 996 out of 1000.  Making Northwestern the most academically successful Division 1 football program in the United States.

Maybe that is exactly why these kids think they need a union.  Seems at Northwestern they actually have to go to class.

That’s That . . . We Hope.

Back in 2010, the National Labor Relations Board (NLRB) proposed a poster rule.  On August 30, 2011, after receiving some 7,000 comments on the proposed rule, the NLRB published a final rule. You remember the poster rule, we talked about it here and here and here and here and even a couple of more times. If you want to see all the posts, click on the NLRB tag on the sidebar.

Anyway, as you all know by now, the poster rule would have required you to display a poster that is “11 inches by 17 inches and in a type size and format the Board prescribes” in a conspicuous place. The poster was required to “inform employees of their right to form, join, or assist a union; to bargain collectively through representatives of their choosing; to discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; to take action to improve working conditions; to strike and picket; . . . “ According to the rule, failing to display the poster was an unfair labor practice.

Using First Amendment analysis to examine section 8(c) of the National Labor Relations Act, the Court of Appeals for the D.C. Circuit held that section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice or evidence of an unfair labor practice.” The Court went on to say “Like the freedom of speech guaranteed in the First Amendment, section 8(c) necessarily protects . . . the right of employers (and unions) not to speak.”

So what does this mean for all of you employers out there?  No poster any time soon.  The issue is still pending before the Fourth Circuit Court of Appeals, and assuming they come down the same way, it is unlikely that the Supreme Court is going to take this case.  So, that’s that. At least we hope it is.

Be Careful What you Wish for!

Ladies and Gentlemen:  (drum roll please)  The NLRB has finally issued a social media decision.  No more relying on General Counsel memos or worrying about whether or not the sample policy that Acting GC Laffe Solomon said was valid is still worth looking at. (You may recall that the NLRBB Inspector General alleged Solomon may have violated ethical rules by participating in the Wal-Mart social media case while he held a substantial financial interest in the company.)  No more trying to parse through pages and pages of nonsense.

Finally, some clarity.  Yes, on September 7, in Costco Wholesale Corporation and UFCW Local 371, 358 NLRB No. 106 (2012) we finally got some clear and well-reasoned direction from the Board (can you hear the sarcasm as I type this?).

At least that was what I hoping for. But turns out that  the decision is unclear and not what we were looking for at all.

In fact, the decision is, well, it’s just ridiculous.  That’s right, I said it: Ridiculous.

The decision deals with a bunch of Costco’s policies.  The one we are interested in, the electronic communication policy, says the following:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement.  Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

Seems okay to me.  In fact, it seemed okay to the administrative law judge that initially decided the case, too.  He said this policy was valid because “employees would not reasonably construe this rule as regulating and thereby inhibiting, Section 7 conduct.”  Well, that should take care of that, right?

Oh, wrong, so very wrong. The Board said the ALJ was wrong. The Board said he relied on the wrong cases. The Board said the cases he relied on were distinguishable because, “most involved rules addressing conduct that is reasonably associated with actions that fall outside the Act’s protection, such as conduct that is malicious, abusive, or unlawful.”  But not this policy apparently.

Here is what the Board said:  “Contrary to the judge, we find employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Really, which employees are those?  But let’s not jump to conclusions. Let’s see why the Board thinks this.  Here is why “by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting the Respondent’s treatment of its employees.”

What????.  Did the NLRB really just say that Section 7 protects defamation?  Defaming someone is a tort. You can get sued for it. You can be required to pay damages for it. It is malicious. It is abusive. And it is unlawful.  See the problem here?

But that is not the end of this little fairy tale, nightmare, whatever.

The Board then had the . . . nerve (that’s not what I started to say but we will go with that so my editor does not fall out of her chair) to say, “In contrast, the Respondent’s rule does not present accompanying language that would tend to restrict its application.  It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted actives such as communications that are critical of the Respondent’s treatment of its employees.”

Did I miss something here or is the Board suggesting that all of this may have been okay if only Costco had included a savings clause.  You know what a savings clause is right, some simple like “we won’t enforce this in a way that interferes with your Section 7 rights.”  Simple enough, except.  I’m sure I saw something in one or two of those GC Memos that said savings clauses were not enough.  Oh yea, that’s right.  Didn’t the GC say it is not enough to include a “savings clause” in the social media policy that attempts to cure ambiguities and ensure employees understand that the policy does not apply to Section 7 activity?

Instead, he found in several instances that employees will not understand the savings clause to mean that protected Section 7 activities are permitted.  In fact, take a look at  page 8 of the Jan. 24 GC Memo and pages 9,12 and 14 of the  May 30 GC Memo. On second thought, don’t look. It might make your head explode.

Can you tell I’m a bit upset?  Let’s hope Costco appeals this thing and a Court finally steps in to rein this agency back in.

Just when you thought it was safe to write a social media policy?

It’s almost summertime.  The kids are getting out of school and coming to work for you.  So you were probably thinking, time to update that social media policy to keep up with all of those multi-tasking wonder kids looking for summer jobs.  After all, we don’t want the Facebook generation to give away all of our company secrets, do we?  Well, the good old NLRB must have been thinking the same thing.  And they don’t seem to want you to write a new policy, in fact they don’t seem to want you to have your old policy.  On May 30, 2012, the Acting General Counsel of the NLRB issued a third report on social media cases.  This one focuses on  policies.

Here is the NLRB announcement in full:

NLRB Acting General Counsel Lafe Solomon today issued a third report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees.

The Operations Management Memo details seven cases involving such policies. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. In the seventh case, the entire policy was found to be lawful.

Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

‘I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,’ Mr. Solomon said in releasing the memo. Two previous memos on social media cases, which involved discharges based on Facebook posts, issued in January 2012 and in August 2011.

The emphasis is mine, and the links should be live if you want to read the report.

Now, what that little announcement does not tell you is that the Acting General Counsel has, in my opinion, gone way over the line.  You see that red print up there?  He looked at seven policies and INVALIDATED AT LEAST PART OF ALL BUT ONE OF THEM.   Incredible.  Here is one highlight to get you started . . . and by started, I of course mean started banging your head against a wall. The NLRB has determined that an employer policy that says in part:

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.  [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.  [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.

Dealing with this specific provision, the Acting General Counsel stated:

 We found that this rule encouraging employees “to resolve concerns about work by speaking with co-workers, supervisors, or managers” is unlawful. An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, we found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

Again, the emphasis is mine, mostly because I just can’t believe that they said this.

Post, Don’t Post, Don’t Post, Post would someone please make a decision!

Update:  If you want to see the Chairman’s message regarding the D.C. Circuit’s decision, see http://www.nlrb.gov/news/nlrb-chairman-mark-gaston-pearce-recent-decisions-regarding-employee-rights-posting

OK the D.C. Circuit made a decision.  The D.C. Circuit has enjoined the National Labor Relations Board from implementing its new posting rule.  The D.C. Circuit granted the National Association of Manufacturers’ emergency motion for an injunction pending its appeal of the decision of the D.C. District Court.  The court noted that the Board had previously postponed operation of the rule and thus the Board’s argument that the rule should take effect during the pendency of the appeal had little merit.  The court indicated that the uncertainty about the Board’s decision to cross appeal mitigated toward preserving the status quo while the court decides if the Board has authority to issue a rule requiring posting of the poster.  Oral argument is set for sometime in September.

So what does that mean?  You don’t have to post the poster. Yet.

Oh, Oh. Could be I jumped the Gun!

Friday I told you all to get ready to get your NLRB poster up.  That’s what I get for having a guest blogger.  Now, in Chamber of Commerce v. NLRB the U.S. District Court for the District of South Carolina, that’s right South Carolina, has ruled that the new NLRB rule that requires that the new NLRB poster be posted is invalid. The court held that Section 6 of the NLRA (the “Act”) provides that rules promulgated by the Board be “necessary to carry out” the other provisions of the Act.  The court stated that “finding that the challenged rule is ‘necessary’ to carry out the provisions of the Act would require the court to ignore ‘the statutory language as a whole.’”  Finally, the court stated “After utilizing the tools of statutory interpretation, the court finds that the Board lacks the authority to promulgate the notice-posting rules.”

So, do you have to put the poster up?  Well, the Board has not said yet.  No word as of the posting of this post if the Board intends to delay the posting requirement yet again. In fact, the Board’s website still says April 30 is the day.   Stay tuned, I’ll let you know as soon as I know if anything changes.

Don’t Forget to Post the NLRB Poster

Special Thanks to Tara Kennedy for drafting this reminder.  Read more about Tara here.

By April 30, 2012, all employers covered by National Labor Relations Act must post a notice in the workplace to explain to employees their rights under the NLRA. If you are wondering whether the NLRA applies to you, the answer is likely yes. The NLRA covers private employers who have an impact on interstate commerce including manufacturing plants, retail centers, private universities and health care facilities.

The poster rule takes effect after being postponed twice because of lawsuits questioning the National Labor Relation Board’s authority to require employers to post the poster. The first court to hear the challenge was a district court in the District of Columbia. The district court determined that the Board had the authority to require employers to post the poster. However, the court also determined that the Board overreached its authority by making failure to post the notice an unfair labor practice and by possibly extending the six-month statute of limitations period for filing the unfair labor practice allegation.

You can read more about the NLRB Poster rule here and here. You can find a link to the required poster here.

Two out of Three is Bad: Judge Says Poster Goes Up.

Update 03/07/12:  The National Association of Manufactures and the National Federation of Independent Businesses have announced they intend to appeal Judge Berman Jackson’s decision. 

On Friday, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, ruled that the National Labor Relations Board does have the authority to make a rule requiring employers to post a notice outlining employee rights under the National Labor Relations Act.  You can read more about the poster here and here.  Judge Berman Jackson had two basic questions in front of her:  1) Does the Board have the rulemaking authority to require private employers to post the poster; and 2) Does the Board have the rulemaking authority to set the penalties that it set for failure to post the poster?  Yes I know, the title of this post says “two out of three.” What’s the third?  Well, a couple of the plaintiffs filed a motion seeking to have the court decide if President Obama’s recess appointments to the NLRB valid?    The Judge did not deal with that question in her memorandum order, but separately ruled that the poster rule was promulgated by a quorum of Board members who were undisputedly authorized to make rules well before the recess appointments were made.

Judge Berman held:

 The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the posting provision.  But it also holds that the provisions of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA are invalid as a matter of law.

 Finally, Judge Berman held that the invalidity of the enforcement mechanism in Subpart B of the rule did not invalidate the entire rule and that the posting requirement is severable and valid.

So, all in all, this is a win for the Board and the unions.  In fact, according to The Wall Street Journal, the General Counsel for the AFL-CIO said “While the judge invalidated two sensible enforcement mechanisms in the rule, her decision affirms that the Board has ample authority to enforce the notice-posting requirement on a case-by-case basis, . . .”  On the other hand, again according to The Wall Street Journal, the president of the National Association of Manufacturers said:  “We believe today’s decision is fundamentally flawed, . . .”  You can see the WSJ article here.

So, if you’re an employer, what does this mean to you?  It means you are going to have to post the NLRB poster by April 30, 2012.  If you want to see it, you can find the poster here.

If you want to discuss what your options are, give me a call.  You can find me here.

The Trees Get a 10-Week Amnesty: NLRB Delays Poster Requirement.

Remember when I said trees would die needlessly  so that the NLRB could force you to put up a poster that was not really needed?  The trees may be getting a reprieve.  The NLRB announced today that it is postponing by more than two months the implementation date for its new notice-posting rule “in order to allow for enhanced education and outreach to employers, particularly those who operate small- and medium-sized businesses.”

The original deadline for posting the notice was November  14, 2011.  That date has been extended to January 31, 2012.  You can find the NLRB’s announcement here.

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