On Feb. 5 IWLA held its winter Washington, DC, meeting of our Government Affairs Committee. Those attending got expert views and inside skinny on topics ranging from food safety regulations, the impact of the new freight broker law, pro-business state legislative tax and labor initiatives and the outlook for transportation funding and policy, to what employers need to know to prepare their companies for the implementation of Obamacare in 2014.
(You can learn more about these issues at the 2013 IWLA Convention & Expo, March 10-12 in Orlando, Fla. For information about the program and how to attend, visit www.iwla.com)
IWLA members discussed and reviewed the January 25 Federal Circuit Court decision invalidating the recess appointments of three members of the National Labor Relations Board. Some news reports had suggested that the decision overturned all of the decisions made by the board during 2012, when the court said the board was illegally constituted.
That may turn out to be the case if the Circuit Court decision (now stayed) is upheld by the U.S. Supreme Court, but it could be as long as a year before that would happen. In the meantime, NLRB Chairman Mark Gaston Pearce publicly stated immediately following the decision that as far as he is concerned, it will be business as usual at the board, saying: "we will continue to perform our statutory duties and issue decisions."
President Obama embraced these recess appointments because of his Administration's profound belief and practice that unionization will create a strong middle class. In reading his speeches and his pronouncements, you can collect an abundance of quotes that organized labor is the critical element to a strong middle class. The Administration also sees the dramatic reduction in organized labor in the private sector and has deployed powers of the NLRB through its decisions and rulemaking for organized labor to increase its access to the employer workplace.
The activist recess appointees to the board have handed down a host of decisions that had a negative impact on employers while strengthening union positions. Two particular decisions have alerted employers that the NLRB will find ways to strengthen union organization attempts:
- The "Ambush Election" decision that substantially shrunk the time in which employers would have to oppose an organizing election.
- The "micro-union" decision that allows unions to organize small groups within a facility instead of having to win over all of the employees.
Here are some of the other NLRB decisions that employers could see overturned should the Circuit Court decision be upheld by the Supreme Court.
Social Media Policies and Practices -- In a series of 2012 decisions, the board expanded the range of what they considered protected social media activity by employees who vent about working conditions, and struck down employer social media policies that restrict such activity.
At-Will Statements in Handbooks – In the past it was not unusual for nonunion employers to include statements in employee handbooks confirming that employment is terminable at-will and limiting the authority of managers to change such policies. The NLRB ruled that certain at-will statements in employee handbooks violate the law because they suggest that employees cannot modify their at-will status through collective action and other protected concerted activity.
Confidentiality During Investigations – It has been common for quite some time for union and nonunion employers conducting internal investigations to ask employees keep the matter confidential and not discuss it with others. However, last year the board ruled that an employer's "blanket justification" such as protecting the integrity of the investigation was insufficient.
Instead, the employer bears the burden to determine in each individual case whether investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.
Off-Duty Employee Access to Workplaces -- The NLRB limited an employer's ability to keep off-duty employees off the employer's property by reversing its long-held position is that a policy prohibiting all access to the employer's premises by off-duty employees is presumptively unlawful.
The board determined that a rule that denies off-duty employees access to an employer's parking lots and other outside non-working areas is generally found invalid, unless the employer has a specific business reason for the exclusion.
Dues Check-Offs – The board held that it is an employer's duty to collect union dues from employees if there is a dues check-off provision in their contract even after the contract has expired.
Employee Discipline – No grievance process contained in the contract? No problem. The NLRB ruled that unionized employers must give the union notice and an opportunity to bargain before imposing discretionary discipline involving demotions, suspensions, and terminations where the collective bargaining agreement does not establish a grievance-arbitration process.
In summary, the Circuit Court decision was a welcome action, but until it is confirmed/upheld by the U.S. Supreme Court, the recess-appointed NLRB will continue to issue decisions that find ways and means to enable labor to organize your workplace.