Archive for the 'NLRB' Category

Another Tree Dies a Useless Death (or more useless government paper on your walls)

Back in December we talked about the new proposed rule from the NLRB that would have required virtually every employer in theUnited States to put up a poster informing employees of their “rights” under the National Labor Relations Act (NLRA).

Nevermind that it is not necessary for employers to tell employees their rights under this particular statute, there are unions to do that.  Never mind that unions spend millions of dollars every year on policitical candidates instead of spending that money educating employees.  Nevermind even that the NLRA does not even have a posting requirement and that it is likely that a rule requiring a posting goes way beyond the rule making authority of the Board.  Finally, nevermind that at least one Board member felt like the rule was arbitrary and capricious and it was not based on “substantial evidence” or a “reasoned analysis.”

I will tell you one thing, the Board didn’t mind any of this —  they went ahead and issued a final rule.

What does this mean for you? It means, that you have to put up a poster, and one more tree dies a useless death.  The poster is going to tell employees about their rights.  What rights, you ask? The rights to:

  • Organize, form, join or assist a union
  • Bargain collectively to improve wages and working conditions
  • Discuss terms and conditions of employment with fellow employees
  • Take action with the employees to improve working conditions
  • Strike and picket
  • Inform workers that they have the right to refrain from any of those activities

It will also tell employees that it is illegal for employers to:

  • Prohibit employees from soliciting for a union during non-work time
  • Question employees about their union support or activities
  • Fire, demote or transfer employees because they join or support a union

Prohibit employees from wearing union hats, buttons, t-shirts and pins in the workplace.

You can find a “fact sheet” on the new rule here:

So other than tell you to put up the poster, which you have to do by November 14, 2011, I will tell you the same things I told you in December.

You can make sure you have a workplace where the employees don’t feel like they need a union. How do you do that? Start with your supervisors. Train them. Make sure they understand their role in keeping your employees engaged. Looking for some ideas on how to do this? Here are a couple of places you might consider starting:

And so I don’t look too self-absorbed, you can also find some great stuff from my colleagues here: and also here .

So go ahead and put up the poster. You have to do it anyway. And then give us a call. We can provide training, not just on the law but on conflict resolution, managing generational differences in the workplace, employee motivation and many other topics that will help make improve the performance of your supervisors and hopefully keep your staff from seeking help from the outside.


All three of you who read this blog know that, from time to time, we have discussed how the National Labor Relations Board (NLRB) might react to the utter failure of Congress to pass the Employee Free Choice Act. Don’t remember? You can see my posts here, here and here.

Well, no more guessing. Yesterday, we found out what the Board was going to do — and we found out in a big way. The NLRB announced that today it would publish in the Federal Register new proposed rules for conducting union elections.

In making this announcement, NLRB Chairperson Wilma B. Liebman said: “One of the most important duties of the NLRB is conducting secret-ballot elections to determine whether employees want to be represented by a labor union . . . . Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.”

You can see Chairperson Liebman’s full statement here.

So what exactly is the NLRB proposing, you ask?  Well, if you read the announcement, it seems like it includes just a few changes to make the process fair, such as:

  • Allowing for electronic filing of election petitions and other documents
  • Ensuring that employees, employers and unions receive and exchange in a timely manner the information they need to understand and participate in the representation case process
  • Standardizing timeframes for parties to resolve or litigate issues before and after elections
  • Requiring parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation
  • Deferring litigation of most voter eligibility issues until after the election
  • Requiring employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and e-mail addresses, when available
  • Consolidating all election-related appeals to the Board into a single, post-election appeals process and thereby eliminating delay in holding elections currently attributable to the possibility of pre-election appeals
  • Making Board review of post-election decisions discretionary rather than mandatory

That does not seem so bad, does it? But look closer. At least one member of the NLRB thinks none of this is a very good idea. Want to guess which one?  That’s right, Brian E. Hayes (who just happens to be the lone Republican member on the Board). Hayes went so far as to say in his dissent to the proposed rulemaking:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process.  Neither process is appropriate or necessary.  Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation.  For my part at least, I can and do dissent.

You can see Hayes’ full dissent here. And just so you know, I added the emphasis, although I’ll bet he would have if he thought decorum would let him.

Oh, and just to top it all off, the Department of Labor  (DOL) also announced proposed rulemaking. The DOL’s proposed rules would revise the interpretation of “advice” as it pertains to the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA).

The proposal adopts the plain meaning of  “advice” as “an oral or written recommendation regarding a decision or course of conduct.”  In effect, under the proposed rules, any time an employer retains a consultant to engage in “persuader activities,” the employer must report that activity.

In its announcement, the DOL goes on to say: “The LMRDA does not regulate the actual persuader activities or statements, and the proposed rule only focuses on whether the activities would have to be publicly disclosed. The current interpretation of “advice” has resulted in significant underreporting of employer and consultant persuader agreements. Better disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.”

Let me translate that for you: We want unions to know how much employers are spending on consultants so they can use that information when they are trying to convince employees to join the union.

So what does all this do? What does it mean from a practical point of view? It reinforces what we have been saying all along.  Union avoidance must be an everyday endeavor.

If the NLRB rules are enacted, you are going to have less time after a petition is filed to give your employees the truth about unionization and you will have less opportunity to contest union tactics.  And that is only part of the problem.  Not only will you have to give the union more information, such as e-mail addresses, to help them organize your employees, you will have to report what you are doing and how much you are spending to tell your employees the truth.  This is something the unions simply don’t have to do.

The public has 60 days to comment regarding both sets of proposed rules.  If you would like for us to do some commenting on your behalf, please give us a call . . . soon.

“TWEET!” You’re Fired.

Remember back in February when we were talking about the National Labor Relations Board’s view of protected concerted activity and social media?  What do you mean you don’t remember?  See it here: Anyway, to remind you – back in February the NLRB settled a complaint it had filed against a Connecticut ambulance company that had fired an employee, basically for calling her boss a psych patient on her Facebook page.  In its Press Release on the settlement the Board said:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

Not much help if you are trying to draft a policy, is it?  Well, we recently got a bit more help. In an Advice Memo issued on April 21, 2011, the NLRB opined that it was legal for the Arizona Daily Star to fire a reporter who posted “inappropriate and offensive Twitter postings that did not involve protected concerted activity.” The memo also had some important things to say about social media policies.

You see, the reporter did not dispute that he actually posted the Tweets or even that they were offensive. Instead, he claimed that the Daily Star’s social media policy was unlawfully overly broad. What did the policy say?  See, that is the confusing part – the Daily Star had no written policy. Instead, the reporter claimed that during disciplinary meetings leading up to his termination he was told by various management officials to “stop making inappropriate comments” and “stop airing his grievances or commenting about the employer in any public forum.” He was told that he was “not allowed to Tweet about anything work related,” and that he should “refrain from using derogatory comments in any social media forums that may damage  the goodwill of the company.”

The NLRB ultimately held that these statements did not amount to an oral “policy,” and even if they did, the reporter was fired for making offensive comments and not engaging in protected concerted activity – but again, so what?

What is important and instructive about this particular Advice Memo is that the NLRB acknowledged that “in warning the [reporter] to cease his inappropriate Tweets . . . the Employer made statements that could be interpreted to prohibit activities protected by Section 7.”  That’s right, what the Advice Memo basically says is, if your social media policy contains any of the prohibitions above it is an unlawful restriction and violates the NLRA.

So go check your policy.  See any of those restrictions?  Do you prohibit commenting in a public forum?  Tell people they can’t comment on work on social media sites?  If so, let’s take a look and if necessary get them changed before the NLRB does it for you.

Facebook Firing Unfair Labor Practice Charge Settles!

The National Labor Relations Board announced that it had reached a settlement in its unfair labor practice charge against a Connecticut ambulance company. According to the News Release issued by the Board, the company has agreed to revise its “overly broad” blogging policy, agreed to not fire employees for engaging in online discussions of wages and other terms and conditions of employment and agreed to not threaten to fire, or fire employees for asking for union representation. The employee and the company settled in a separate financial agreement and it has been reported that the employee will not be returning to work at the company.

So, should you run out and change your policy? That is up to you. I suppose it depends on how risk-averse you are and how broad your policy is. According to the Board:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

Is your policy this “broad?”  Does it prohibit “disparaging remarks when discussing the company or supervisors?” While the settlement may be nice news for the NLRB, it does not provide much useful guidance for employers with blogging policies. We will have to wait for a charge that does not settle and goes to hearing then ultimately to court for useful guidance.

How Good are your Supervisors?

So how good are your supervisors?  I’m not talking about how good they are at making widgets.  If you have been reading this blog, you know that I don’t think that is their job anyway.  I’m talking about how good they are at dealing with your employees.  If you don’t know, might not be too long before you have a chance to find out.  What am I talking about?  Union avoidance.  You see, a real union avoidance program is not about getting the word out to employees after the union comes knocking at your door.  We will want to do that, but that is only a very small part of a real union avoidance program.  A real union avoidance program is about making sure that your supervisors know what they are doing.  Making sure that they know that their job is to make your employees feel appreciated; to motivate your workforce so it is happy and productive and so it does not feel like it needs some outsider to take care of problems.

Now, for last 20 years of so, that hasn’t been a real concern for most companies in the U.S.  The union membership rate for private employers has been in a steady decline. Today it is at its lowest rate since they have been keeping records.  But as we told you, when Secretary Solis announced these statistics, she also made it clear that the administration was going to back organized labor.  And we noted that if it could not be done legislatively, the administration would find another way.  And so it begins.

On January 28, 2011 the National Labor Relations Board issues a decision in Parexel Int’l, LLC., 356 NLRB No. 82 (2011).  In Parexel, a nurse was fired when she suggested to her supervisor that all employees at the company should quit and come back in order to get a raise.  The nurse had been told by another employee who had quit and then returned to work that he had been given a raise to come back to work.  This was not true. After the nurse complained to her supervisor and suggested to the supervisor that others should quit and come back to get a raise, she was interviewed by the company’s HR director.  The HR director asked the nurse if she had discussed this issue with any of her coworkers.  When she said she had not, she was fired.  The ALJ found that the nurse was fired to prevent her from talking with other employees but found that there was no “protected concerted activity” and so he upheld the discharge.

The Board overturned the ALJ’s ruling.  The Board held that it does not matter in a case like this if there is protected concerted activity.  Rather the Board held that ascertaining one’s wages compared to other employees is a core right protected by Section 7 of the Act.  And any action that has the effect of suppressing these rights is a violation of Section 8(a)(1). The Board held:

The judge declined to find a violation  because, in his view, [the nurse] had not yet engaged in concerted activity.  He opined that Board law requires that an employee must have already engaged in protected concerted activity in order for the Board to find that she was unlawfully discharged to prevent protected concerted activity.  We disagree.  If an employer acts to prevent concerted protected activity – to “nip it in the bud”- that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.

What?  That’s right.  I’m going to borrow a phrase from one of the partners here who sent the article around that clued me into this:  Looks like “not only can you not fire someone who engages in protected concerted activity, but you can’t fire them if there is a possibility that they might engage in it.”  (Thanks Rob!).

So what does all this mean?  Well, for one thing it is proof that the administration was not kidding when they implied that they were going to help organized labor.  And another, it’s time to train those supervisors.  Don’t wait until something happens.  The problem is that this stuff is not intuitive.  Having supervisors with common sense is not going to be enough.  I mean who would have guessed this result?

Organized Labor Still Has Friends in D.C.

A couple of years ago at this time of year every labor lawyer you know, including me, was running around like Chicken Little screaming about how the sky was falling. After all, we had a Democratic President, the House of Representatives had a significant Democratic majority and the Senate had a filibuster proof majority of Democrats. Top that off with a healthy dose of organized labor support for the new president and his party and we thought we were right to panic. At least I thought I was right when I said that with the changes in government we had the most labor friendly government in Washington since the New Deal. Of course, with health care and all taking up so much time very little in the way of new labor legislation was actually passed.  But you have to cut me a little slack. After all, the president made his support of unions a cornerstone of his campaign and the very first bill signed into law by the new administration was the employee friendly Lilly Ledbetter Fair Pay Act. So we spend a lot of time talking about things like the Employee Free Choice Act. In fact, my very first post on this blog was about the EFCA.

But none of it happened.

What have I learned from all this? Mostly to relax and see what happens before I start screaming the odds. As I’ve already told you I am not making predictions this year. I’m just going to give you the facts. And the facts are these: the administration has not given up on supporting unionization of the private sector. (Don’t believe me? Take a look at this.)

Friday the Secretary of Labor, Hilda Solis, issued a statement regarding the Bureau of Labor Statistics report on union membership for 2010. The report did not paint a rosy picture for organized labor. I was going to put a link into the statement, but since it is short, I’m going to include the whole thing:

Statement by Secretary of Labor Hilda L. Solis on Bureau of Labor Statistics report on union members in 2010

WASHINGTON –Secretary of Labor Hilda L. Solis issued the following statement regarding the Bureau of Labor Statistics’ annual “Union Members – 2010” report released today:

“Today, the Bureau of Labor Statistics announced that, in 2010, the unionization rate of employed wage and salary workers was 11.9 percent, down from 12.3 percent in 2009. Among private sector employees, the rate dropped to 6.9 percent from 7.2 percent in 2009.”

“The data also show the median usual weekly earnings of full-time wage and salary union members were $917 per week, compared to $717 for workers not represented by unions. For Latinos, the wage disparity is even greater with union members earning an average of $771 compared to $512 for workers not represented by unions, a difference of 33.6 percent.”

“When coupled with existing data showing that union members have access to better health care, retirement and leave benefits, today’s numbers make it clear that union jobs are not only good jobs, they are central to restoring our middle class.”

“As workers across the country continue to face lower wages and difficulty finding work due to the recent recession, these numbers demonstrate the pressing need to provide workers with a voice in the workplace and protect their right to organize and bargain collectively.”


I think that about says it all doesn’t it?  Unionization is down, and the administration blames the damage to the middle class, at least in part on the low level of unionization. It is pretty clear that the administration, from the Department of Labor to the NLRB, to the President himself,  is going to do whatever it can to make it easier for unions to organize your workforce. So, if you are trying to decide where your HR priorities should be, at least for the start of 2011, might I suggest some supervisor training. You need to make certain that your supervisors know how to deal with questions about unionization and what it means when they come up. You might think you know, but there are already some pretty sever restrictions on what your supervisors can and cannot say when faced with a potential organizing drive. And the answers are not always intuitive. So, if you have questions, give me a call. I can help.


Yes, it is that time of year again. A time to start fresh; to think about all the possibilities. So how about some New Year’s resolutions for your management team? And just in case you don’t think you or your supervisors need to do anything differently, along comes the NLRB to give you something to think about. What am I talking about, you may ask? On December 22, the NLRB published a Notice of Proposed Rulemaking in the Federal Register. The proposed rule says all employers subject to the NLRA (and that is almost all private employers, regardless of whether your workforce is unionized) will be required to post a notice informing all employees about their rights under the NLRA.

Here is what the proposed poster will say:



The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity.  Employees covered by the NLRA are protected from certain types of employer and union misconduct.  This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA.  Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace. 

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. 

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.

• Question you about your union support or activities in a manner that discourages you from engaging in that activity. 

• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity. 

• Threaten to close your workplace if workers choose a union to represent them. 

• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.

• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to: 

• Threaten you that you will lose your job unless you support the union.

• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.

• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.

• Take other adverse action against you based on whether you have joined or support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted.  If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity.  You may inquire about possible violations without your employer or anyone else being informed of the inquiry.  Charges may be filed by any person and need not be filed by the employee directly affected by the violation.  The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law.  Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

The NLRA covers most private-sector employers.  

Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors. (Although supervisors that have been discriminated against for refusing to violate the NLRA may be covered.)

This is an official Government Notice and must not be defaced by anyone.

You can see the whole thing at

So, what do you do about this?  You can submit comments regarding the proposed rule, but that probably won’t change the fact that this rule will become final in one form or another (at least until some court rules that the NLRB does not have the statutory authority to make this rule in the first place),  but you can at least have your voice heard. 

Or you can make sure you have a workplace where the employees don’t feel like they need a union. How do you do that? Start with your supervisors. Train them. Make sure they understand their role in keeping your employees engaged. Looking for some ideas on how to do this? Here is a couple of places you might consider starting:  And so I don’t look too self-absorbed, you can also find some great stuff from my colleagues here: and also here 

Or give us a call. We can provide training, not just on the law but on conflict resolution, managing generational differences in the workplace, employee motivation and many other topics that will help make your supervisors better supervisors and hopefully keep your staff from seeking help from the outside.


Well, that didn’t take long.  In the first week of April this year, President Obama made two recess appointments to the National Labor Relations Board.  Craig Becker is the former general counsel of the SEIU, the nation’s biggest union, and Mark Pearce is a former founding partner of a prominent Buffalo New York union side labor and employment law firm.  The final opening on the Board remains unfilled, so that means with Chairperson Wilma Liebman there are three Democratic appointees on the Board with Peter Schaumber the only Republican appointee left.  So what you say? There is a Democrat in the White House, there is going to be a Democratic Board.  That’s right, there is, that’s the way it works.  And we can expect many of the decisions handed down by the Board during the Bush Administration to be reversed and that is not even considering the literally hundreds of rulings that have been voided by the Supreme Court with its decision in New Process Steel v. NLRB, which held that the Board had no authority to act when it had only two sitting members.

So what am I talking about?  Well my friends, let me tell you what I am talking about.  Not about some new case that reverses a decision from the Bush Board, that reversed a case from the Clinton Board, that reversed a decision from the first Bush Board, and so on and so on . . . I’m talking about the Board trying to do what Congress has been unable to do.  Give unions the benefits of the EMPLOYEE FREE CHOICE ACT without Congress having to do the dirty work and actually pass the act. 

How can this be?  The Board does not have that kind of authority, right?  Well, sort of, you see, the Board can’t just go ahead and put say . . . card check or say . . . mandatory arbitration of the first contract into place, the law as it is currently written does not allow that.  But it can . . . through rule making . . . give unions a much better shot at winning elections.  How?  Well, by shortening the time between a petition and an election.  Or maybe by prohibiting certain kinds of communication by employers in campaigns.  Or maybe by letting unions exert pressure on voters at the polling places.  And Thursday last, the Board may just have taken the first step.

According to the Wall Street Journal at, “The National Labor Relations Board is exploring electronic-voting methods for unionization elections, which employer advocates fear could be used to circumvent the current secret-ballot process and favor unions.”

You can see the Journal article at

So what, you say again, how does this help unions?  A couple of ways if you ask me.  Of course you asked, me, you are reading this blog!  First, it allows the Board to shorten the time between the petition and the election.  This helps unions in one very big way, it lets them talk to your employees for as long as they want about how great unions are before they file the petition, but limits the time you can talk back.  The union controls when it wants to file the petition, not the employer.  Shortening the time between the petition and the election puts the communications cards in the unions’ hands in an unfair way.

Second, and more importantly, electronic voting, which is a precursor to internet voting, could allow the election site to be contaminated by union electioneering.  Under the current system, the union and the employer can’t continue to campaign at the election site.  They have to let the employees vote without having one last person get in their ears.  Despite Chairperson Liebman’s request that proposals for electronic voting ensure that  “that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion”  nothing is going to prevent the union from “helping” the employees to vote.  One lawyer in the WSJ article even suggests unions might vote as a group to show their “solidarity.”

So, is this going to happen?  Don’t know, but I’m not surprised.

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