Now that the Senate has confirmed a full complement of Board members, employers should expect a familiar rite of passage to occur--the reversal of the prior Board's decisions. In this case, the Bush Board decisions in key areas will likely be reviewed and reversed. The fact that the Obama Board lacked a Senate confirmed full complement of members has kept this rite from occurring sooner in the Obama administration. The impact of the ongoing Noel Canning litigation provides both a challenge and an opportunity to the Democratic majority. The review of employer policies and procedures that may impact or deter the exercise of Section 7 rights will continue, but the validity of the prior decisions which have found a wide range of employer policies and procedure to violate the Act may not be valid if the Supreme Court finds the recess appointments to have been improper. Employers can expect the Board to use pending cases to re-affirm the rationale of the Noel Canning Board's decisions and to establish them as the guiding precedent, at least for this Board. Several Bush Board decisions reviewing employer practices and policies and their impact on Section 7 rights are destined to be reversed. In Palms Hotel and Casino, 344 NLRB 351 (2005), a work rule prohibiting conduct which was or had the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with other employees and patrons was found to be legal. The Bush Board said it would give the rule a reasonable reading and not read in isolation or presume improper interference of the rule. The Board noted that the rule was not promulgated in response to union activity. Similarly, the Board in Martin Luther Memorial Home, Inc., 343 NLRB 646 (2004) found that an employer rule prohibiting abusive and profane language did not on its face restrict Section 7 rights and was not unlawful. The Board noted that employees would not reasonably construe the rule to prohibit Section 7 activity; it was not promulgated in response to union activity or concerted, protected activity; and the rule was not applied to restrict the exercise of Section 7 rights. See also, Tradesman International, 338 NLRB 460 (2002). The new Board is expected to revisit the Bush Board's decision in The Register Guard, 351 NLRB 1110 (2007) which dealt with restrictions on employee use of company email. The initial decision addressed the issues of whether an employer could prohibit the use of its email system the system for non job related emails and whether the company had inconsistently enforced its policy. The D. C. Circuit denied enforcement on the issue of discriminatory enforcement, and on remand, the Board found that the company had discriminatory enforced its policy to prohibit the union president from using the email while allowing it for other non union matters. The issue of the underlying restriction was not addressed on appeal or on remand. It is expected that the blanket prohibition will be reversed. The issue of the right of a non union employee to have a co-worker present in an interview which the employee reasonable believes may result in discipline will certainly be revisited and likely reversed. In IBM Corp., 341 NLRB 1288 (2004) [an enhanced version of this opinion is available to lexis.com subscribers], the Bush Board said there was no such right; prior Democratic Boards have said there is. The new Board will also be working with a new General Counsel--Robert Griffin, one of the two Noel Canning Board members. The Act provides that an acting General Counsel can be appointed by the President. The current acting General Counsel Lafe Solomon was appointed and was never confirmed by the Senate. It is expected that Griffin will pursue the same issues as Solomon. Now that there is a Board that has been confirmed by the Senate and the use of the Noel Canning defense to new charges is no longer available, employers need to recognize that the approach of the Bush Board with respect to employer policies and procedures and potential impact of Section 7 rights will be replaced by one that finds ambiguity and a possible chilling effect on employee rights the rule rather than the exception. To the extent an employer has not reviewed its policies and procedures to determine if they are subject to being found vague or to have a chilling effect on Section 7 activity, now is the time to review them and to assess possible risk.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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