Friday, January 27, 2012

NLRB makes providing jobs more difficult

This morning I attending one in a series of Workplace Regulation Seminars sponsored by the Toledo Regional Chamber of Commerce. James Yates, of Eastman and Smith, was the presenter with an overview of recent National Labor Relations Board actions and their impact on employers and the workplace.

The session, New Year - New NLRB Rules on Social Media and Union Organizing, was eye-opening. I've followed the shenanigans going on at the NLRB with claimed recess appointments as well as the U.S. Chamber's opposition to those appointments. But since I don't have employees, I've not paid as much attention to the various rules and regulations. Today's session brought me up to speed - and it's pretty scary. Let's just say that the NLRB is making it more difficult to provide the jobs so desparately needed in today's economy.

One of the most important facts I learned today is that the NLRB, unlike federal agencies and departments, is just a board. The name should have been a clue, but understanding the difference is critical.

Like the U.S. Supreme Court, this board has no authority under law to create regulations or rules. They speak, as does SCOTUS, through their decisions on cases brought before them. While their decisions become 'case law,' providing guidance to others in similar circumstances, they cannot create something new to impose upon Americans.

That, however, hasn't stopped them.

One of the negative aspects of a board that is packed with leftists is that they refuse to accept the limits on their authority - choosing, instead, to exercise rule making and hoping it will stand.

A case in point is their dictate that employers display a new Employee Rights Poster. This was originally supposed to be required last year, but thanks to a lawsuit the implementation date has been pushed back several times and is now April 30, 2012. Oh - and if you have employees who speak anything other than English, you must display the poster in one of the 24 languages whose translation they've provided.

Not surprisingly, industry groups sued over the rule. The U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business are all trying to block the implementation.

Included among the points they make in the lawsuit, Yates explained, are these:

* Nowhere does the National Labor Relations Act give the board the authority to coerce employers to post such notifications;

* The rule arbitrarily and capriciously excludes from the mandatory notice a description of an employee's fundamental right to be free from compulsory union membership or dues; and

* It violates federal law by failing to property assess the significant economic impact the rule would have on small businesses.

Additionally, as many comments on the proposed rule pointed out, there has been nothing - no study, or finding, or collection of data - that indicates a need for the regulations. So why impose a costly mandate, one for which you really have no authority, when there is no demonstrated need to let employees know they can form a union?

Good question. But since the NLRB doesn't care about their lack of authority to mandate a new regulation, what makes anyone think they're going to worry about a need for such a mandate?

Yates provided overviews of some of the other NLRB actions, including the complaint against Boeing to block the opening of their production facility in South Carolina. That a supposedly impartial NLRB was used as a negotiation tool to intimidate (through government threat of law) Boeing is clear to just about anyone who bothers to learn about the issue. The problem, though, is that the complaint was dropped as soon as the union got their way. What are the implications for employers who find themselves in similar circumstances? Unfortunately, since the NLRB didn't rule, I expect we will see similar strong-arm tactics from unions in the future. After all, with a board dominated by union people, it's not likely that they will prevent the NLRB from being used to coerce employers into agreeing to union negotiation demands.

So much for an unbiased, impartial board who is supposed to ensure all sides are following the National Labor Relations Act.

Some other interesting rulings Yates informed us of:

* The 'rat' case. Yes, a large, inflatable rat displayed outside a secondary employer is not the same as picketing and is allowed, as this Daily Caller article and source of the below photo explains.

Current law says that unions cannot picket a secondary employer - in this case, a hospital that was using a contractor with whom the union had a beef. But, with the NLRB ruling that such displays are not 'picketing,' unions are now free to place large, ominous rats right at the doors of your company.

As Yates explained, the ruling decided that this large, ugly, scary, toothy, evil-looking creature in a blow-up format is not frightening to families, children and patients at the hospital and that its presence would have no effect on the visitors to the hospital.

But, I wondered, if there was no effect on the people going into or coming out of the hospital, why display the rat at all? What would its purpose be if it had no effect?!?

Apparently, that's a bit of logic beyond the comprehension of the NLRB.

Yates also detailed some rulings regarding social media that employers need to be aware of - especially because they will require changes to employer policies. Additionally, these rulings impact most all employers, even those without a union in their company.

The current standard for allowable - as in not able to fire over - speech is that it must be protected (relating to employment, working conditions, wages, etc...) and it must be concerted (meaning not just related solely to the person making the comments, but related to one or more employees in the same class).

So if, for instance, an employee gets on TV and, as part of an interview over a strike or walk-out, relates lies about his employer's failure to comply with regulations having nothing to do with employment, that's okay. You, as the employer, cannot fire the individual who just told lies about non-existent illegal activity at your company because he was doing it as part of his protected and concerted actions. Never mind that most people won't know it's a lie or that your company's reputation has just been, perhaps irreparably, harmed. You can't do anything about it, so long as the employee really didn't have 'actual malice' in mind when making the comments. As anyone who's ever been slandered or libeled can tell you, proving 'actual malice' is nearly impossible.

But it gets worse, as Labor and Employment Law Update explains:

In this case the NLRB majority agreed that Parexel International did not terminate the employment of Theresa Neuschafer for protected concerted activities under Section 7 of the National Labor Relations Act (NLRA). (Section 7 of the NLRA expressly prohibits an employer from retaliating against an employee for engaging in protected concerted activities.)

Generally, employees have received protection under the NLRA when they were retaliated against for internally criticizing a term or condition of their employment to their coworkers or a member of management.

The employee in this case was found to have discussed alleged pay raises and purported preferential treatment towards South Africans by the management of Parexel, Int’l (Neuschafer was not South African). The NLRB concluded that the company wanted to prevent Neuschafer from engaging in such discussions with her coworkers in the future. Such action, according to the NLRB’s majority, served as an unlawful preemptive strike against protected concerted activity.

The NLRB reasoned that because an employer violates the NLRA by threatening to terminate an employee in order to prevent her from exercising Section 7 rights, it follows that an employer similarly violates the law by terminating the employee in order to be certain that she does not exercise her rights in the future. In so finding, the NLRB majority expanded the theories on which the agency may hold employers liable, stating that an employer violates the NLRA when it fires an employee “to be certain that she does not exercise her Section 7 rights.”

Even though the employee had not engaged in protected and concerted activity, she might decide to do so in the future and, if she had done so, the company would have been prevented from firing her.

So, because she might, sometime, in the future, maybe, engage in some activity that would be protected, she can't be fired now for her non-protected comments.

How's THAT for certainty in the workplace!

I guess the lesson the NLRB wants employees to know is that as long as they couch their defamatory, negative, harmful, disparaging, disloyal, derogatory comments in sentences about the terms and conditions of their employment, they will win any wrongful termination complaints when they get fired for doing so.

Other things of note from Yates' presentation:

* The NLRB is likely to find that small units are 'appropriate.' In the past, the NLRB had held to the position that fragmentation within a single employer doesn't help collective bargaining - it undermines it. Many fights over unionization deal with the composition of the 'appropriate' unit. For instance, if you have a manufacturing facility with 50 plant employees (no supervisors), it's likely that the 'appropriate' composition of the potential union group is all 50 employees. Past practice would say that the 10 people in the warehouse or the five people in shipping are not part of two separate units.

However, with private sector union membership in such decline, the NLRB is looking for ways to help unions, so determining that 10 warehouse workers can be their own bargaining unit is one way to do so. The unions get their foot in the door; they don't have to convince all employees - just a small number of them - to join; and the battles begin.

And just to make it more difficult, employers now have to show "overwhelming" support against the smaller unit in order to prevent such action.

* 'Liking' a Facebook post of a fellow employee who comments about terms and conditions of employment on their wall may be enough to constitute the 'concerted' standard.

* Personnel policies will probably have to be revised, Yates advised, to reflect these changes:

- You can no longer prohibit disparagement of the company, unless you expressly exempt online discussions that are permissible under Sect. 7 of the NLRA (protected and concerted).

- Policies that prohibit the use of your company's name, logo or service marks outside of the normal course of business without prior permission are unlawful.

- Policies prohibiting representations about the company, including comments to the media, without prior approval of the company are unlawful.

- Broad prohibitions against disclosing confidential, sensitive or non-public information are unlawful, though prohibiting disclosure of proprietary or legally confidential information (like health data) is still allowed to be part of your policy.

- You can't even require that social networking communications be 'professional' or 'appropriate.'

- And you cannot require employees to expressly state that their comments are their own personal opinions and not those of their employer.

- Comments or posts that would violate policies against harassment or hostility in the workplace on account of protected classes are ones that employers can still restrict.

- Dissemination of product launch or release dates, including pending reorganizations, mergers or acquisitions can still be prohibited in your policies.

These are just the NLRB and social networking issues employers have to be aware of. Add to them all the OSHA, EEOC, FMLA and ADA requirements and you've only just begun. There are rules and regulations from the Federal EPA, the State EPA; licenses and permits; Workers' Comp and unemployment; health insurance, pension and benefits laws; and you've not even gotten to the actual production of the service or product you're trying to sell.

Given just these, and there are myriads more, what individual in their right mind would want to start a business today? Or stay in business when you have these sorts of headaches to deal with?

It boggles the mind - and most people making the rules (or trying to make rules when they have no authority to do so) have no clue what their 'little provision' means in the real world to the people trying to provide jobs for their neighbors and communities.

***Side Note: Eastman & Smith will host a day-long seminar, A Proactive Approach to Labor and Employment Law Issues, on Feb. 7 from 9-3 at the Grand Plaza Hotel. Registration begins at 8:30 and there is a $10 fee for registration and lunch. Further information is available here.

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