In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:

1. Where witnesses may need protection
2. Where evidence is in danger of being destroyed
3. Where testimony is in danger of being fabricated
4. Where the is a need to prevent a cover-up

It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.

As one of its penalties, the company was required to post the following notice:

Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.

Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.

Here is a link to a memo from the Worklaw® Network firm Elarbee Thompson which should scare the bejesus out of any non-union employer. The current administration is clearly attempting to restructure the workplace. What it was not able to do by legislation it is now attempting to do through administrative fiat. We’ll have to see how the circuit courts respond to any claims filed. Until then it is employer beware!

The National Labor Relations Board recently ruled in Sodexo America LLC, that USC Hospital’s off-duty access policy violated employees’ Section 7 rights under the NLRA. Please click here to read the entire article written by Franczek Radelet attorneys Neil Goldsmith and Chris Johlie.

“It is the duty of the executive to remove ruthlessly anyone — and especially any manager who consistently fails to perform with high distinction. To let such a man stay on is to disrupt the others. It is grossly unfair to the whole organization” —Peter Drucker

This issue discusses:

• Editor’s Column: Three Major Gaps
• Keeping Cool in the Summer Heat
• What’s Important to HR Pros
• The NLRB: A Political Football
• Challenges with Intermittent FMLA Leave
• It Pays to Provide Healthy Snacks
• HR: You Versus the Competition
• Using Outsourced Workers
• HR and Risk Management
• Oh No! Where Did Our Information Go?

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Three Major Gaps

In a recent Webinar, I reviewed 15 forms and tools on HR That Works that can have a direct impact on a company’s bottom line. If you haven’t yet watched this Webinar, I encourage you to do so by clicking on this link.

During the Webinar, I asked three polling questions. How would you respond to each one of these?

1. Do you have a social media policy?
   Amazingly, less than half of respondents have such a policy — they’re sticking their heads in the sand. Don’t ignore this significant risk exposure. The best way to create a policy is by coordinating with your HR, marketing, and IT departments, as well as a representative team of employees. This can’t be a top-down document — it just won’t work. You need to create your policy by consensus so that everyone at the company will buy into it. A good way to start is by taking advantage of the Social Media Training Module and Sample Policy on HR That Works.
2. Do you have a written hiring process?
   Once again, less than half of respondents do. This is amazing when you consider that the single most important thing you can do for your company is hire the right people. Don’t take my word for it; rely on the research of best-selling author Jim Collins (Built to Last, Good to Great, etc.) who argues that the main factor in creating great companies is hiring great people. How can you possibly do this on a consistent basis without an effective hiring process? Answer: You can’t!
3. Does your employee handbook tell employees how to be a good employee?
   Believe it or not, two-thirds of respondents said that their handbook doesn’t.The reason: Lawyers, who have taken over writing employee handbooks, focus on protecting your business, rather than helping you to grow it.Remember, as Norman Vincent Peale preached, you get what you focus on. Your handbook should definitely include the How to Be an Excellent Employee and sample Team Rules provision from HR That Works.

Keeping Cool in the Summer Heat

When it comes to outdoor workers, “water, rest and shade” can literally make the difference between life and death. Every year, thousands of workers nationwide suffer from serious heat-related illnesses. If not addressed quickly, heat exhaustion can become heat stroke, which has killed — on average — more than 30 workers annually since 2003. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness might first manifest itself as heat rash or heat cramps, but can quickly turn into heat exhaustion, and then heat stroke, unless workers follow basic preventive measures.

“It’s essential for workers and employers to take proactive steps to stay safe in extreme heat, and become aware of symptoms of heat exhaustion before they get worse,” says Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. “Agriculture workers; building, road and other construction workers; utility workers; baggage handlers; roofers; landscapers; and others who work outside are all at risk. Drinking plenty of water and taking frequent breaks in cool, shaded areas are incredibly important in the hot summer months.”

In preparation for summer, OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum for workplace training. Additionally, a Web page provides information and resources on heat illness — including how to prevent it and what to do in case of an emergency — for workers and employers. The page is available here.

OSHA also has released a free application for mobile devices (both Android-based platforms and the iPhone) in English and Spanish that workers and supervisors can use to monitor the “heat index” at their work sites. This app displays a risk level for workers based on the index, as well as reminders about protective measures to take at that risk level. You can download the app here.

NOAA also includes pertinent worker safety information on its heat watch Web page.

What’s Important to HR Pros

SHRM surveyed 504 HR professionals on their degree of satisfaction with 26 different job attributes. The respondents’ top five concerns, in order, were:

1. Opportunities to use skills and abilities — Exactly what skills and attributes are you interested in using? Does management even know that you have this ability or desire or are you keeping it to yourself? For example, if you’ve recently completed a course of self-study, does management know this?
2. Relationship with immediate supervisor — This holds true for all employees, not just HR executives. What, if anything, feels “unfair” about this relationship? Have you been given time to discuss your agenda for the company and your career? Has your boss pooh-poohed some of your ideas? Does your immediate supervisor even know what’s most important to you in the relationship or are you hoping that he or she can guess at it?
3. Communication between employees and senior management — It’s highly frustrating to be stuck in the middle when there’s a poor relationship between manager and employees. (Guess what? It’s your job to help improve this communication!)
4. The work itself — If you find yourself doing under-valued work, whose fault is this? Have you made the case for ditching your $10-$20 per hour work so you can focus on higher value work? Can you show management the ROI on your moving up the ladder?
5. Autonomy and independence — You want to do your own thing like everybody else. Have you earned the trust necessary to have this independence? What level of authority do you have?

Interestingly, compensation and pay came in at seventeenth place! As I kid in my workshops with HR executives, “They know this about you.” In my survey of HR executives, most of them tell me that what they want more than anything else is to make a difference — which is great. Just don’t underestimate the importance of getting paid well to do it!

The NLRB: A Political Football

Many employers have expressed their frustration about the National Labor Relations Board’s agenda. Are they really surprised or just annoyed? The NRLB, like OSHA, the EEOC, DOL, etc. are administrative branches under the control of the President, who is currently backed by unions. As you can see from the graph, the figures in yellow show how NLRB enforcement declined once the Bush administration came into office, and has been back on the rise since the Obama administration came in (in pink). No surprise here. Unfortunately for the NLRB, state legislatures and courts have begun to rein in the NLRB agenda, which arguably goes beyond any authority found under the Act. Take, for example, the demise of the Employee Free Choice Act, problems with the NLRB Poster, and most recently the new election regulations.

My advice: Make sure that someone at your company stays on top of the NLRB agenda. Check out the HR That Works Blog posts, as well as the www.nlrb.gov website and our recent Webinar on managing recent NLRB requirements.

Challenges with Intermittent FMLA Leave

Few things drive HR executives nuts more than dealing with intermittent FMLA leave. When faced with this situation, bear these facts in mind:

1. Employees must comply with reasonable call-in procedures and no-call/no-show policies affected by intermittent leave.
2. Employers are allowed to get recertification under appropriate circumstances. They can also put employees in an accommodated position that might reduce the need for the intermittent leave.

HR That Works has an excellent series of podcasts produced by the Franczek firm discussing FMLA leave.

It Pays to Provide Healthy Snacks

Smart employers realize that they should make healthy energetic foods available to their employees. After all, what’s the cost of a few healthy snacks when you’re paying a worker $50,000 a year to produce? I encourage all employers to provide rice cakes, fresh apples, lemons, fresh water, sparkling water, oranges, carrot sticks, almonds, broccoli, etc. You can often go to the local supermarket and buy a tray which already has many of these fruits and vegetables. The point: Make it easy for your people to eat healthy food — and they’ll become far more alert and productive. Even better, work with a local farmer or health food store to set up a regular delivery schedule.

HR: You Versus the Competition

HR operates in a highly competitive landscape. For example, your ability to attract and retain employees more effectively than your competitors will benefit your bottom line. HR can play a key role in this process. How would your company compare to the competition in these elements of employee compensation?

• Salaries and wages
• Benefits and other rewards
• Training
• Career growth opportunities
• Flexible work arrangements
• Retirement benefits

If you’re not clear about how you stack up, you have some serious homework to do. Many industry groups or local employer groups can help you obtain data related to your industry. Contacting a recruiter in your field can also help supply you with this information. Remember that these factors can have a significant effect on your ability to attract employees, get them engaged, retain them, avoid unionization efforts, and improve your brand and customer relations.

Using Outsourced Workers

HR That Works has an extensive report and checklist about what’s known as the “contingent workforce.” This includes temporary employees, leased employees, and more. Here are some questions to consider in these relationships:

• Who is responsible for what? — As with any arrangement, it’s important to study the contract. For example, if an employee isn’t working out, who should be responsible for firing them? Consider every aspect of managing personnel from hiring through performance management and retention to termination.
• How much are you paying to outsource various HR functions? — Whether you’re outsourcing because you don’t have the time, expertise, or desire to do the job in house, you’ll have to pay for someone else to do it for you. What’s the competitive rate? What about the provider’s experience and results? Do your homework and interview at least a couple of providers and their clients before you choose one.
• What is the provider’s hiring process? — They should be able to show it to you in writing. If they can’t, pick someone else. Make sure that the provider does proper skill testing, character assessments, background checks, extensive interviews, immigration checks, and pre-hire physicals.
• What references can the provider offer? — Don’t just ask for references, get the names of companies who have used the vendor during the past year. See if the vendor is willing to share this information and allow you to interview those companies. Ask “What will these companies tell us?” Then do Google research to see what comments you can find online.
• What’s the knowledge on board at the vendor? — How long has the person who does the hiring and staffing been doing their job? What are their credentials? Is there expertise on board to help you with any compliance concerns?
• Does the agent carry the right insurance? — Depending on whose payroll is involved, the law requires employers to provide Workers Compensation benefits, as well as withholding unemployment and Social Security taxes, and more. If the temp or leasing agency treats their workers as independent contractors you could end up being in a heap of trouble.
• Does the agency provide employees benefits? — Remember, if a worker walks and talks like your employee, they’re probably going to be considered your employee, whether they’re a sole employee or in a joint employer relationship. If an employee receives no benefits from the provider, you can easily face a hefty benefits claim down the road.
• What about union activities? – To what extent has the agency been faced with unionization efforts? Your temporary workforce might be considered part of an existing bargaining unit and thus covered by your union contract.

HR That Works members should view the extensive Contingent Worker Report and Checklist.

HR and Risk Management

We usually think of HR helping to avoid employment practice risks. We want to make sure not to be trapped in wage and hour claims, discrimination and harassment litigation, and wrongful termination lawsuits. Then there’s leave management, including ADA and FMLA. Although these are the major issues in HR risk management, HR is also instrumental in helping with other aspects of managing risk, such as:

• Workers Compensation — Insurance companies don’t pay claims, they finance them. When you suffer a Comp claim, your experience modifier (“MOD”) increases to repay the claim during a three-year period at a high interest rate. This can be the most expensive money that your company borrows. That’s one reason we recommend that employers do everything possible to get employees returned to work. Has your HR person helped develop a comprehensive return-to-work program?
• Cyber Liability — To what extent are poor employee practices leaving your information systems vulnerable? To what degree is HR working with IT and security to make sure that new employees receive proper orientation and terminated employees are managed effectively from a security standpoint? For example, what precautions have you taken to have mobile devices returned, passwords retrieved, trade secrets protected, etc.? To what degree does HR make sure that telecommuting employees don’t expose the company to cyber risks?
• Social media — One element of cyber liability, risk from social media, is expanding every day. Has HR made it clear who owns the company Twitter account? Have they set social media guidelines? Do they know how to respond to any perceived risks, such as negative employee postings?
• Privacy exposures — Whether it’s medical records (HIPAA), Social Security information, financial information, etc., employees can both generate exposures and be subject to them.
• Disaster planning — One disaster can wipe out your company overnight. Whether it’s a tornado, hurricane, earthquake, flood, or a brutal snowstorm, the news is replete with the devastating impact of such events. To what degree has HR helped generate a plan to protect the company in the aftermath of a disaster?
• Employee Benefits — With a growing number of ERISA claims and a rapidly changing benefits landscape, HR is thick in the mix. Who is responsible for staying on top of the emerging benefit trends?

Perhaps the greatest risk that HR can help with is growing the business: Providing strategic advice about what your company needs for growth and how to move in this direction. At smaller companies, it’s difficult for the HR executive to wear all these hats. In this situation, many businesses have partnered with their insurance agency or other professional providers of risk management services.

Oh No! Where Did Our Information Go?

During recent months I’ve been reading a large number of lawsuits related to industrial espionage, sabotage, misappropriation, and theft. Most of these cases involve a current or former employee or some third party stealing valuable financial or other information. In several recent decisions, courts have ruled that they lack criminal jurisdiction over theft of information by an employee who had access to a company’s database. The courts essentially held that the misappropriation in question did not violate the National Stolen Property Act, the Economic Espionage Act, or the Computer Fraud and Abuse Act (CFAA). In the case of US v. Nosal, Judge Kozinski, known for his left-of-center opinions, engaged in a display of semantic gymnastics to rule that the Computer Fraud and Abuse Act was nothing more than an anti-hacking statute and doesn’t apply to misappropriation. Essentially, he argued that employees who wasted time on Farmville, Facebook, New York Times, daily Sudoku, etc. would be in violation of the Act, which is too broad for the government to enforce. If you want to see some feathers fly in a scorching dissent, read the case.

Bottom line: Make sure to buy Cyber Liability insurance; it looks like you’re going to have a hard time getting protection from the courts, especially if you happen to be in the Ninth Circuit.

Form of the Month

Factors Affecting HR (PDF) – Check out this comprehensive list of the internal and external factors that have a significant impact on your HR activities.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY: Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2012 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

Podcast: Play in new window | Download

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.

Note: we will review this memo and do an analysis on it by next week!

The NLRB did it again. One has to wonder if these folks have ever had to run a business. You will note that many of the policies deemed illegal were drafted by high-end counsel at major corporations who are undoubtedly aware of employee’s NLRA Section 7 and 8 rights. But what do they know? The NLRB is undercutting every level of decency corporations try to establish. It clearly has nothing to do with common sense or “real” workers’ rights, it’s simply a political football. Read it yourself and tell me you don’t feel that way too. Call your boss an asshole, trash the company brand, disclose confidential info, get fired for it and the NLRB will put you back to work! Really? And this is what we pay taxes to a broke government for?

P.S. Of course, this is my opinion only. While it may be shared by many, it is not shared by all.  Here’s a fact – I represented employees in litigation for 17 years of a short life, so I don’t want to hear about supporting some right wing agenda. I’m a pragmatist and this is flat out nonsense. You will also note they don’t add the facts or names of these cases because the actual conduct of the employees involved would be hard for most to stomach.

Guidelines

If the social media policy does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful (which is where most of these policies fail). In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.

Reality is, none of these employees ever studies these rules or even thinks about them before they engage in their “protected” conduct.  But because of the remote chance it may actually “chill” conduct, decency goes out the window.

Given the above guidelines, the NRLB found plenty of polices wanting. Rather than waste your time summarizing all the things you can’t do I’ll focus on identifying what they said you can do. If you want to make yourself feel ill you can read the entire memo at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies I have given up on trying to modify our policy for the umpteenth time. To be on the 100% safe side you can simply use the sample policy that the NLRB said is OK below.

Last note: It has been my approach to involve employees in creating these policies so they can be “self-enforced” and not viewed as some top down control document. Since the end result of such a common sense approach may in fact violate NLRB guidelines, the safest best is to go with their sample policy.

Sample Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

Guidelines
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.

Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

• Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
• Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
• Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
• Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.

Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited
[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Be Cautious
Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.

 Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

For more information
If you have questions or need further guidance, please contact your HR representative.

According to the NLRB memo here are some more “OK” provisions:

• Confidentiality re information directly or indirectly related to the safety performance of [Employer] systems or components for vehicles;
• Confidentiality re [Employer] Secret, Confidential or Attorney-Client Privileged information;
• “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
• “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage”
• No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.
• A prohibition on representing “any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].”

In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

Click here for website version.

The above entry is the May 15, 2012 NLRB News Release.

April 30, 2012 was the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:

• On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.
• Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.
• The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.
• When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”
• Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.
• The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.
• At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.
• Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.
• Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.

A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

A federal district court judge has partially invalidated the National Labor Relations Board’s (NLRB) rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). 

The Rule

In August 2011 the NLRB adopted a final administrative rule that requires covered employers to post a “notice to employees” regarding their rights under the NLRA.  The notice describes the NLRA and informs employees of their rights under the NLRA, including but not limited to their right to organize a union to negotiate with their employer about their wages, hours and other terms and conditions of employment.  

The NLRB’s rule also establishes several penalties for non-compliance.  Under the rule, the NLRB may find that an employer commits an unfair labor practice where it fails or refuses to post the notice.  The NLRB also may toll the NLRA’s six-month statute of limitations for filing unfair labor practice charges if employers fail to post the notice.  Finally, the NLRB also may use an employer’s failure to post the notice as evidence of an unlawful motive in unfair labor practice proceedings where motive is a disputed issue. 

At the time it adopted the rule, the NLRB announced that it would take effect on November 14, 2011.  The NLRB since delayed the rule’s implementation date to April 30, 2012, amid substantial controversy surrounding the rule.

The Lawsuits

Shortly after its adoption, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW) filed lawsuits in federal district court challenging the rule.  They argued that the NLRB lacked authority under the NLRA to promulgate the rule and that the rule violated the First Amendment. 

The District Court’s Opinion

Judge Amy Berman Jackson upheld only that portion of the NLRB’s rule that requires employers to post the notice to employees regarding their rights under the NLRA.  She determined that the NLRB is granted broad rulemaking authority under the NLRA and is not limited to enacting rules that address only particular statutory sections.  Finding that the NLRA places the NLRB “squarely at the heart of labor management relations,” the judge held that the dissemination of information about employee rights under the NLRA—as the NLRB’s rule requires—“is well within its bailiwick.” 

The judge also found that the NLRB provided a reasonable explanation for adoption of the notice requirement: in order for employees to fully exercise their rights under the NLRA, they must know that those rights exist, and requiring employers to post notices of those rights raises employee awareness.  Finally, she concluded that the NLRB did not act arbitrarily when it adopted the notice requirement because it relied on empirical and anecdotal evidence demonstrating that many employees are unaware of their rights under the NLRA—including the fact that a comparatively small percentage of private sector employees are represented by unions. 

On the other hand, the judge invalidated those portions of the rule tolling the statute of limitations for filing unfair labor practice charges and finding that failure to post the notice constitutes an unfair labor practice.  The NLRA expressly limits unfair practices to those enumerated in Section 8 of the statute, and similarly, Section 10(b) expressly establishes a six-month statute of limitations.  The judge concluded that the NLRB’s rule impermissibly expanded the reach of both of these provisions.  Notably, however, the judge found that nothing prohibits the NLRB from finding on a case-by-case basis that failure to post the notice constitutes an unfair labor practice.

Lastly, the judge rejected the claim that the NLRB’s rule violated the First Amendment because it compelled employers to speak against their will.  According to the judge, the notice constitutes “government speech” because its content and message are controlled by the government, and therefore is not subject to the First Amendment’s Free Speech Clause. 

What It Means

Although the judge invalidated two portions of the rule, she upheld the notice requirement, and that portion of the NLRB’s rule remains valid.  Further, the NLRB is permitted to rely on an employer’s failure to post the notice as grounds for the finding of an unfair labor practice on a case-by-case basis.      

As a final note, the plaintiffs in this matter did not specifically challenge that aspect of the NLRB’s rule that permits the NLRB to use an employer’s failure to post the notice as evidence of unlawful motive in its unfair labor practice proceedings.  As a result, the judge found that that portion of the rule remains valid.

For now, employers who are covered by the NLRA must plan to post the notice on April 30. Another challenge to the rule is pending in a federal district court in South Carolina. We will continue to monitor that case and will keep you updated as to further developments.

By Jennifer Dunn, Amy Moor Gaylord, Chris Johlie

Article courtesy of Worklaw Network firm Franczek Radelet.

Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances. To see the press release and additional information, go to http://www.nlrb.gov/news/acting-general-counsel-seeks-changes-deferral-policy.

Very simply, the NRLB non-employee disputes are taking too long to go through the delegated arbitration process and so the Board will be deciding these cases directly to speed up resolution. It will be interesting to see how they will be able to take on this burden with a tight budget. Whether you agree with the approach or not, this is yet one more pro-union move by the Administration.