On June 14, 2013, the Fourth Circuit Court struck down the National Labor Relations Board’s rule that would have required six million private employers to hang posters about workers’ right to unionize or to face penalties for anti-union bias for refusing. The court noted that even the National Mobilization Against Sweatshops, a worker-advocacy group, admitted that very few workers learn about their rights through postings. The NLRB has rarely engaged in rulemaking in its seventy-seven years of existence, but the Fourth Circuit’s ruling makes clear that when it does, it may be acting outside of its legal authority. The Court explained that the part of the National Labor Relations Act that gives the Board power to issue rules, Section 6, does not allow the issuance of this type of rule because the NLRB is supposed to be a reactive agency. Accordingly, the court found that the posting rule is outside of the bounds of the law.
In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB released its first decision to examine protected, concerted activity involving Facebook. By a 3-1 vote, the Board held that the non-union employer committed an unfair labor practice by discharging five employees for responding to another employee’s criticism of their work performance on Facebook. The majority of the Board found that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the “water cooler.” “Although the employees’ mode of communicating their workplace concerns might be novel,” the Board concluded this activity was for “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act (“NLRA”). The discharged employees received full reinstatement and backpay.
EXTINGUISHING THE COMMON MISCONCEPTION THAT THE NLRA/NLRB ONLY ADDRESS UNIONIZATION AND COLLECTIVE BARGAINING ISSUES
In 2012, the NLRB’s General Counsel’s office has been keeping employers with non-unionized workforces on their toes by expanding the reach of Section 7 of the National Labor Relations Act (“NLRA”) to non-unionized workers to address issues ranging from at-will agreements to social media policies to employer property rights and employee access. As a result of this infringement into the non-unionized workforce, we are seeing an increase in challenges to employer handbook policies under the NLRA. The first step for employers to protect themselves is to ensure that their policies are complaint with the recent rulings under the NLRA.
The “unlawful” workplace policies addressed by the NLRB’s General Counsel’s office in 2012 include: