2012 was quite the year for the National Labor Relations Board ("Board")!
Last year, we discussed the Board's agenda, which at the time we described as
aggressive, but with the benefit of hindsight, describing the Board's activity
in 2012 as aggressive is like saying the Super Bowl Champion Baltimore Ravens
are a good football team, true enough but certainly understated.
First, some hard statistics: In 2011, the Board saw
a 17 percent increase in filings as compared to the prior year, which included
both unfair labor practice charges and representation cases. During the
past federal fiscal year (October 1, 2011 through September 30, 2012), the
Board issued 341 decisions, a number slightly lower than the 368 issued the
prior year. But do not let that comparison fool you; the Board was still
hard at work, with the number of pending cases at the end of fiscal year 2012
at an all-time low. The Board has also proudly claimed a 91% settlement
rate in meritorious unfair labor practice cases, and a 90% win rate (in whole
or in part) in cases litigated before Board Judges during the past fiscal year.
Turning to more substantive issues, while the Board did
not initiate any further rulemaking procedures in 2012, its two such
initiatives begun in 2011 saw significant developments in early 2012.
Unfortunately for the Board, but fortunately for non-union employers, neither
of the Board's rulemaking initiatives have been successfully implemented to
date. As will be discussed in further detail below, the first Rule,
adopted in-part by the Board in December 2011, modified certain procedures
governing representation elections. The Rule became effective on April
30, 2012, but was successfully challenged and subsequently invalidated by a
federal district court. The second Rule, promulgated in February 2011,
would have required all employers covered by the National Labor Relations Act
("Act"), both non-unionized and unionized, to post a Notice of Employee Rights,
which outlined certain employee rights under the Act, such as the right to
organize, the right to strike and picket, the right of non-unionized employees
to engage in concerted activities, etc. This Rule has been enjoined by
the U.S. Circuit Court of Appeals for the D.C. Circuit, pending the outcome of
the Board's appeal from a district court's nullification of the Rule.
The Board did seem to focus more on decisional law in
2012, and continued certain trends established in 2011. Please keep in
mind that many of the Board's decisions interpreting the Act impact all
employers, both union and non-union employers alike. Some of the trends
have led to dramatic results, including the overturning of well-established
precedent and a decided interest in examining issues involving social
media. Put quite simply, the Board's trends have not been
employer-friendly. The Board has expanded its sights and has begun
examining other employer policies, beyond the social media context.
Indeed, rarely these days does the Board seem to find an employer policy it
We reported extensively on the Board's initiatives, and
the impact those activities will have on employers, in our blog
throughout the year. For your convenience, we have provided an overview
of the more significant decisions and actions of the Board below, and have
included further detail regarding the Board's rulemaking activities.
New Challenges to Board's Authority to Act
the outset, it's important to note that the Board's very authority to act has
again been challenged. In January 2012, President Obama made three
"recess" appointments to the Board, Democrats Richard Griffin and Sharon Block,
and Republican Terrance Flynn. (Such recess appointments allowed the
President to avoid a Senate confirmation battle, and certainly one could agree
that recess appointments are generally not the most appropriate way for a
president to fill vacancies that normally require Senate confirmation.)
Soon after these recess appointments were made, however,
legal challenges were filed in several federal courts challenging their
validity, claiming that the Senate was actually not in recess at the time President
Obama named the three Interim Members to the Board on January 4, 2012.
There are several U.S. Courts of Appeal that are, as of this writing,
considering these issues. Their decisions could have significant
implications for the validity of most of the decisions issued by the Board in
2012. As of December 16, 2012, the term of lone Republican Board Member
Brian Hayer expired, leaving the Board with only three Members, only one of
whom had actually been confirmed by the Senate. You may recall that in
2010, the U.S. Supreme Court had invalidated a number of Board decisions,
holding that a two-Member Board cannot act as a lawful quorum. New
Process Steel v. Nat'l Labor Relations Bd., 560 U.S. _______, 130 S. Ct.
2635 (2010). If President Obama's January 2012 recess appointments to the
Board were declared unlawful, that would mean that the Board lacked the
three-Member quorum to do business as required by the statute and the Supreme
Court's New Process Steel decision.
Indeed, that is exactly what has come to pass, as on
January 25, 2013, a three judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit, unanimously found that the President had violated
the U.S. Constitution by improperly appointing the three Interim Members when the
U.S. Senate was not, according to the Court, actually in recess. Noel
Canning v. Nat'l Labor Relations Bd., 194 LRRM 3089 (D.C. Cir. 2013).
The Court found that the Board had therefore lacked a three-Member quorum, as
required by New Process Steel, and that as a result, the Board's
Decision finding Noel Canning to have committed unfair labor practices was
declared null and void.
Now there are other U.S. Courts of Appeals also
considering the same issues regarding the validity of the January 2012 recess
appointments, and ultimately it may again be up to the U.S. Supreme Court to
determine whether the Board had proper authority in 2012 to issue the hundreds
of decisions that it issued. The Noel Canning decision has
continuing ramifications for the Board in 2013, because, of the three Members
currently sitting on the Board, only the Chairman, Mark Pearce, was confirmed
by the Senate. This means that if Noel Canning is upheld as the
law of the land, not only will all or virtually all of the Board's 2012 Decisions
be invalid, so too will its decisions for 2013!
So, you the reader may ask "should I stop reading at this
point? Why do I care what the Board did in 2012 if its decisions will all
be declared invalid?"
First, we don't yet know if the D.C. Court's Noel
Canning opinion will be affirmed by the Supreme Court. Secondly, we
know that the last time the Board was found to have lacked a proper quorum in
2010 (New Process Steel), the Board (after subsequently being
repopulated by confirmed appointees) revisited and resolved more than 600
cases, almost always agreeing with the earlier determinations (meaning that it
is still worthwhile for you the reader to labor through the rest of this
Further Update on the Board's Rulemaking
As noted above, the Board had undertaken two unusual rulemaking procedures in
2011. The first rulemaking initiative, which became effective on April
30, 2012, changed the Board's pre- and post-election representation case
procedures. The so-called "Quickie Election" Rule would have reduced the
potential time period between the filing of a petition for election and the
date for conducting the election, which would be detrimental to employer
campaign efforts. However, the Rule was invalidated by a federal district
court in Chamber of Commerce, et al. v. Nat'l Labor Relations Bd., 193
LRRM 2316 (D.D.C., No. 11-CV-2262, 5/14/12).
The other initiative, which would have required all
employers covered by the Act to post a Notice of Employee Rights under the Act,
was challenged in several federal courts. The Board's implementation of
that rule is currently on hold pending a decision by the U.S. Court of Appeals
for the District of Columbia1. Oral argument was held in late
2012 and a decision is expected in early 2013.
The Board's Significant Decisions
A summary of the Board's key 2012 decisions is provided below.
a. Employers Prohibited from Requiring
Confidentiality Regarding Workplace Investigations
The Board sent shockwaves through the employer community
when it issued a surprising and unsettling decision holding that an employer
violates the Act by establishing blanket workplace investigation procedures,
policies, or forms that attempt to prohibit employees from discussing ongoing
workplace investigations with their coworkers. Specifically, the Board
concluded that such a rule violates Section 7 of the Act, which protects
employees' rights to engage in "concerted activities" for their mutual aid and
In Banner Estrella Medical Center, 358 NLRB No. 93
(2012), the employer established a standard investigation process that included
the reading of six introductory statements before each witness interview. One
of the six statements was a confidentiality statement instructing the witness
that he or she was prohibited from discussing matters related to the
investigation until the investigation was complete. The Board determined that
the employer failed to establish that its interest in protecting the integrity
of the at-issue investigation outweighed the employees' Section 7 rights
because the employer developed a "blanket approach" of reading this statement
before every interview. The Board explained that it is the employer's burden to
determine - on a case-by-case basis - whether the circumstances of each specific
investigation are such that (1) witnesses need protection, (2) evidence is in
danger of being destroyed, (3) testimony is in danger of being fabricated, or
(4) there is a need to prevent a cover up. Only when one of these concerns is
present will the employer's interest in protecting the integrity of the
investigation outweigh the employees' Section 7 rights.
As a result of this decision, it would be prudent for all
employers - union and non-union - to review their investigation policies,
procedures, and forms to ensure that they cannot be interpreted as creating a
blanket prohibition against employee discussion of workplace
investigations. We suggest that any written policy regarding the
confidentiality of investigations be removed from your records or modified to
explain that the employer may, at its own discretion, designate an
investigation as confidential based on legitimate business needs.
Consider each case individually and where you believe that one of the
conditions noted above exists, you may implement the policy and tell employees
as much. Confidentiality may still be invoked, but employers will need to
be more discerning about its use. The Banner Estrella case has
been appealed by the Medical Center to the U.S. Court of Appeals for the D.C.
b. Employers Required To Bargain over
Disciplinary Decisions Where No Grievance Procedure Exists
In a decision that resolved the last of the outstanding
two-member cases returned following New Process Steel, the Board found
that where there is no collectively-bargained grievance-arbitration system in
place, employers generally must give the union notice and an opportunity to
bargain before imposing employee discipline such as a discharge or
suspension. The Board was careful to note in Alan Ritchey, Inc.,
359 NLRB No. 40 (2012), that its decision would apply only in those situations
where a union has recently been certified as a bargaining representative, and
where the parties have not yet reached agreement on a first collective
bargaining agreement or an interim grievance-arbitration process.
The Board held that employee discipline is a term and
condition of employment, and a mandatory subject of bargaining. The Board
noted, however, that employee discipline warrants special consideration. The
Board's decision only applies to "discretionary" disciplinary action that will
impact the terms and conditions of employment, typically suspension, demotion
and discharge. Discipline is discretionary if management retains the
right to determine the appropriate level of discipline within its sole
discretion, and the discipline is not part of a no fault disciplinary or other
lockstep progressive disciplinary policy.
The Board also held that an employer need not negotiate
to agreement or impasse under these circumstances, but instead, must provide
the union with notice of its intention to issue discipline, the nature of the
discipline, the information leading to the decision, and offer the union the
opportunity to bargain in good faith before issuing the disciplinary
action. If there is no agreement, then the bargaining obligation
continues after imposition of the discipline. The Board also carved out
an exception and held that the notice and opportunity to bargain prerequisite
is not necessary in exigent circumstances, such as where an employee's presence
in the workplace presents serious and imminent danger to the employer's
business or other employees.
The Board also held that, because this issue was not
previously decided, its decision would be prospective in nature.
c. Elimination of Key Bargaining Tool by
Requiring Employers to Collect Union Dues after Expiration of Agreement
In accordance with its decision in Bethlehem Steel,
136 NLRB 1500 (1962), the Board has long held that an employer's obligation to
collect union dues from employee wages terminates upon the expiration of a
collective bargaining agreement. In December, the Board reversed that 50
year old precedent! The Board held in WKYC-TV, 359 NLRB No. 30
(2012), that an employer may not unilaterally discontinue dues check off
provisions after the expiration of collective bargaining agreements. The Board
stated that its decision to reverse its longstanding precedent was prompted by
concerns raised by the Ninth Circuit Court of Appeals in an unrelated case that
had been ongoing for over 15 years.
Now, like most other terms and conditions of employment,
employers must maintain the status quo upon the termination of a collective
bargaining agreement with regard to dues check off provisions. This
"status quo" must be maintained until either a new agreement or bargaining
impasse has been reached.
In reaching its decision, the Board emphasized the
general rule that employers must maintain the status quo with respect to
mandatory subjects of bargaining upon the expiration of a collective bargaining
agreement. The Board concluded that there was no basis to exclude a dues
check off provision, which is also considered a mandatory subject of
bargaining. The Board reached this decision despite the fact that other
exceptions exist, and that for 50 years, dues check off provisions were deemed
to fit within those exceptions.
While the Board was careful to note that its decision in WKYC-TV
would apply prospectively, this decision will have a significant impact on
employers in the context of collective bargaining. Suspending a dues
check off provision was a significant weapon in the employer's arsenal that has
now been silenced unless and until the Board's decision is reversed by a
federal appellate court.
d. Employers Required to Compensate Employees
Who Pay Extra Taxes on Backpay Awards
In Latino Express, Inc., 359 NLRB No. 44 (2012),
the Board began by noting that it was required to periodically revisit and
revise its remedial orders "drawing on enlightenment" obtained through
experience. The Board went on to hold that employers will be required to
compensate employees for any extra income taxes they have had to pay as a
result of receiving a backpay award spanning more than one year in a lump
sum. The Board also held that it will require an employer ordered to pay
back wages to file with the Social Security Administration a report allocating
the back wages to the years in which they were or would have been earned.
The Board noted that the additional reimbursement and
reporting requirements better serve the remedial purposes of the Act by
ensuring those who suffer discrimination are truly made whole for their
losses. While the Board's decision in Latino Express involved
employees discharged due to alleged anti-union animus, the Board expressly
stated that the additional remedial requirements would apply to all violations
that result in a make whole remedy.
e. Protection of Union Political Spending
In United Nurses & Allied Professionals (Kent
Hospital), 359 NLRB No. 42 (2012), the Board (with Member Hayes dissenting)
appeared to significantly narrow the scope of the U.S. Supreme Court decision
in Communication Workers v. Beck, 487 U.S. 735 (1988). The Court
in Beck held that the Act does not permit a union, over the objection of
nonmember employees, to expend funds collected from employees under a
union-security (or "union shop") provision on activities unrelated to
collective bargaining, contract administration, and grievance adjustment.
Under Beck, lobbying expenses incurred by the union were not chargeable
to non-union members in the bargaining unit who objected.
However, in Kent Hospital, the Board held that
lobbying expenses are chargeable to objectors, to the extent that they are
germane to collective bargaining, contract administration, or grievance
adjustment. How lobbying could be germane to any of these activities is unclear
to us, but the Board has paved the way for unions to charge these expenses to
nonmember objectors despite the seemingly clear holding in Beck.
(The Board itself was apparently unclear on how lobbying could be germane to
these activities, and invited input from interested parties on how it should
define and apply the "germaneness" standard in the context of lobbying.)
f. The Board Finds Certain Arbitration
Early in 2012, the Board ruled that arbitration
agreements that require employees to pursue individual claims violate the
Act. In D.R. Horton, Inc., 357 NLRB No. 184 (2012), the Board
examined an employer policy that required mandatory arbitration of employee
claims on an individual basis, and specifically prohibited class or collective
actions. The Board held that such a policy or agreement prohibits employees
from engaging in concerted activity in violation of the Act. The Board
noted that its decision does not require class arbitration, as long as the
policy or agreement leaves open a judicial forum for class or collective
Relying on D.R. Horton, a Board Administrative Law
Judge ("ALJ") similarly concluded that a policy requiring all employees to
pursue individual claims, rather than collective actions, and that prohibited
employees from discussing their claims violated the Act. In 24 Hour
Fitness USA, Inc., (Case-20-CA-035419) (2012), the ALJ concluded that, even
though the policy at issue afforded employees the opportunity to "opt out" of
the arbitration requirement, it was nonetheless unlawful. The ALJ
directed the employer to rescind the policy. Stay tuned, as D.R.
Horton has been appealed to the U.S. Court of Appeals for the Fifth
g. The Board Requires Employers to Disclose
Witness Statements to the Union
In Piedmont Gardens, 359 NLRB No. 46 (2012), the
Board reversed 34 years of precedent by holding that the employer will now be
required to provide a union representing an employee with witness statements
obtained during an investigation of employee misconduct. Overruling the
1978 Anheuser-Busch doctrine, the Board now requires a "balancing test"
between the union's need for the information (weighed heavily by the Board) and
the employer's legitimate and substantial confidentiality interest (weighed not
so heavily by the Board). The present Board is apparently not as
concerned about the potential for intimidation, coercion, and retaliation that
might flow from disclosure of witness statements to the union as was the Anheuser-Busch
Board. And in another dramatic change related to union requests for
information, in Iron Tiger Logistics, Inc., 359 NLRB No. 13 (2012), the
Board held that employers must respond promptly to union requests for
information, even when the information requested may ultimately be irrelevant
to the union's representation of employees!
The Board Continues its Social Media Agenda
year, we discussed with you the Board's aggressive social media agenda.
Unfortunately, the Board's rigorous review of cases involving discipline for
social media activity continued in 2012. In addition, the Board was very
active in reviewing employer social media policies, and in the vast majority of
cases found that those policies violated the Act. While the news was not
all bad, the Board's social media cases have signaled a disturbing trend for
The Board's Acting General Counsel ("AGC"), Lafe Solomon,
may be credited with starting the social media blitz. The AGC followed up
his first social media summary with two new social media reports in 2012.
Unfortunately, the Board has seemed to agree with its AGC's negative views of
employer social media policies in most cases. Below is a summary of the
key decisions involving social media and a summary of the AGC's guidance in
a. Discharge over Facebook Page Found Lawful
Last year we reported on an ALJ decision involving an
employee who was discharged for posts he made on his Facebook page. On
September 28, 2012, the Board affirmed the ALJ's decision in Knauz Motors,
Inc., 358 NLRB No. 164 (2012). Knauz Motors discharged an employee
because of certain Facebook posts made by the employee. The first included
"mocking and sarcastic" pictures and comments about a sales event. Apparently,
the employee was dissatisfied with the food selection for the event, which
included hot dogs and water. The ALJ found that since the food choices could
impact the employee's commissions, which were a term and condition of his
employment, the pictures and mocking comments constituted "concerted protected
activity" under the Act, and were therefore protected.
The ALJ and the Board took a different view of the second
set of Facebook posts, which contained pictures and comments making fun of an
accident at a related dealership. The accident involved a 13-year-old boy who
was behind the wheel of a vehicle that crashed into a retaining pond. The
employee posted pictures of the accident and made some inappropriate comments.
The Board affirmed the ALJ's conclusion that these posts did not constitute
concerted protected activity, because there no was connection to the employee's
terms and conditions of employment. Ultimately, the ALJ and the Board held that
the employee's discharge was not a violation of the Act because he was
terminated for the non-protected posts, and not the posts regarding the sales
The Board also agreed with the ALJ that some of the
employer's policies were overly broad in violation of the Act, including the
employer's Courtesy Policy. The Courtesy Policy provided:
Courtesy is the responsibility of every
employee. Everyone is expected to be courteous, polite and friendly to our
customers, vendors and suppliers as well as to their fellow employees. No one
should be disrespectful or use profanity or any other language which injures
the image of the Dealership.
The Board (believe it or not) held that the prohibition
on "disrespectful" conduct and "language which injures the image or reputation
of the Dealership" could be reasonably construed by employees to prohibit
protected activity, and therefore was deemed unlawful.
b. Discharge over Facebook Page Found
Last year, we also reported on an ALJs decision in Hispanics
United of Buffalo, Inc., 359 NLRB No. 37 (2012). Hispanics United
was the first ALJ decision regarding employee terminations for social media
posts. In December 2012, the Board made Hispanics United its
second decision examining protected, concerted activity involving Facebook
(following Knauz Motors). The Board held that the employer, a
small nonprofit organization in upstate New York, violated the Act when it
discharged five employees for criticizing another employee on Facebook.
The Board majority stated that it was relying on established precedent to find
that the activity was for employee "mutual aid or protection" within the
meaning of Section 7 of the Act.
The employees who were discharged were discussing another
employee who had often criticized the job performance of others. One of
those employees initiated a discussion of the criticism online, and several
other employees vented in a thread. The employees that responded
essentially stated that the criticism was unfair because of staffing and other
concerns. The employee who was the target of the thread complained to the
Agency's executive director, and after an investigation, the employees who
engaged in the discussion were terminated for violating Hispanics United's
The Board stated that to determine whether Section 7
rights are implicated, an employer must consider whether a mutual aid objective
is "implicitly manifest from the surrounding circumstances." Such a vague
and ambiguous standard will no doubt lead to more headaches for employers as
they attempt to discern the meaning of the Board's pronouncements in this
c. The AGC Social Media Reports
In July 2011, the Board's Office of General Counsel
("OGC") issued three Advice Memorandums directing the dismissal of charges, and
issued a social media report, summarizing its actions on several charges
involving social media. Six months later, in January 2012, the AGC issued
a second social media report, which highlighted how quickly the issues
surrounding social media in the workplace were developing.
According to the second report, the following common
policy provisions may be unlawful because they "chill" employees' rights under
Section 7 of the Act:
In May 2012, the AGC issued his third report on social
media. The third report summarizes the AGC's view on seven social media policies'
compliance with Sections 7 and 8 of the Act. The AGC made clear that
policies that are ambiguous as to their application to Section 7 activity, and
policies that contain no limiting language or context to clarify that the
policy will not interfere with Section 7 rights, will be deemed unlawful.
According to the third report by the AGC, the following social media policy
provisions could "chill" employees' rights and are unlawful under the Act:
The third report also expressed the AGC's view that
"disclaimer" provisions that state that policies will be administered in
compliance with Section 7 do not necessarily save an otherwise unlawful
The AGC did provide some guidance in the third report,
and stated that the inclusion of examples of prohibited conduct could help
clarify ambiguities. In addition, certain disclaimer provisions may save
an otherwise overly broad policy. The following social media policy
provisions were found to be lawful:
The third report also provided a sample social media
policy that is lawful in the opinion of the AGC.
Importantly, Section 7 applies to all employers covered
by the Act regardless of whether an employer's employees are represented by a
union, and in September, the Board issued two decisions finding certain
anti-disparagement policies to be unlawfully overbroad. These cases, and
others, demonstrate that the Board seems to agree with the AGC's view of social
media issues. Therefore, for the foreseeable future, the AGC's guidance
in this area should be given careful consideration.
The Board's Assault on Other Employer
As detailed above, the Board has embarked on a crusade against allegedly
overbroad social media policies. The AGC's social media reports also cast a
negative light on a host of employer policy provisions, many of which are not
specific to social media. This expansion beyond the realm of social media
is a trend that we will be following in 2013. Below is a brief review of
two key policies that have already come under fire.
a. Confidentiality Policies
The AGC's social media reports took a dim view of
employer confidentiality policies. As noted above, the AGC found that a
policy prohibiting employees from disclosing information of a confidential,
sensitive, or non-public nature concerning the employer to anyone without prior
approval was unlawful. Certainly, many employers have such
policies. In the opinion of the AGC, such policies are overly broad and
could be interpreted as prohibiting employees from discussing the terms and
conditions of employment. In order to decrease this perceived ambiguity,
confidentiality policies should provide context and should clarify what
information is confidential in order to avoid running afoul of the Act. In
addition, a disclaimer may help an otherwise overly broad policy (i.e., a
statement indicating that the policy is not intended to prohibit employees from
sharing information with each other concerning their own wages, hours, and
conditions of employment).
b. At Will Employment Disclaimers
On October 31, 2012, the OGC issued two Advice
Memorandums addressing at-will provisions in employee handbooks. In both cases,
the OGC concluded that the specific at-will provisions could not reasonably be
interpreted to restrict protected activity and, therefore, were permissible
under federal labor law.
The OGC's guidance followed a controversial decision
earlier this year from an ALJ, which held that an at-will disclaimer adopted by
an American Red Cross regional unit was unlawfully overbroad to the extent it
conveyed that at-will status could never be changed. The Red Cross required
employees to sign an acknowledgement that stated, "I further agree that the
at-will employment relationship cannot be amended, modified, or altered in any
way." The ALJ found the language to be unlawful because it implied any
concerted effort undertaken by employees to alter the at-will status would be
futile. The ALJ's ruling generated significant attention and raised concerns
that more challenges to the at-will language commonly included in employee
handbooks would follow. The OGC's recent advice memos, however, provided
welcome guidance and served to allay these concerns.
2011, 2012 was a busy year for the Board. Given the outcome of the
election in November, we expect that trend to certainly continue in 2013, as
will the Board's decidedly pro union agenda.
While the Board issued a flurry of decisions in 2012,
because of the challenges to President Obama's recess appointments, many of
those decisions are, as of this writing, in legal jeopardy. In addition,
many of the Board's controversial decisions have been appealed to the federal
courts. How the courts will handle the Board's 2012 decisions is an issue
to follow next year as well.
We will, of course, keep you up-to-date on these
important issues and other developments throughout the year on our blog!
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