Press Release: Do Not Hang Controversial NLRB Poster

April 17, 2012

FOR IMMEDIATE RELEASE

 

Employers: Do Not Hang The Controversial NLRB Poster

The National Labor Relations Board created a rule that requires employers to post a notice in conspicuous places informing employees of their right to form, join, or organize a labor union. The penalties for not complying with the rule are severe. This requirement has been widely criticized by employers and challenged in various courts.

Today the Court of Appeals for the District of Columbia granted an injunction against the poster requirement. Oral argument on whether the NLRB had the authority to create the rule will not occur until at least September with a decision being rendered in late 2012.

So for the few employers who have already hung the poster, you are free to take it down. And for the rest of you who were waiting until the last minute on April 30, 2012 to hang the poster, you do not need to hang it.

Press Release: District Court Overrules NLRB Poster Requirement

 

April 16, 2012

FOR IMMEDIATE RELEASE

 

District Court Overrules NLRB Poster Requirement

The National Labor Relations Board created a rule that requires employers to post a notice informing employees of their right to form, join, or organize a labor union. The penalties for not complying with the rule are severe. The effective date of this rule – meaning the date when posters must be hung – is April 30, 2012. This requirement has been widely criticized by employers and challenged in various courts.

The District Court in the District of Columbia was the first court to rule on the NLRB’s poster requirement. That court said that while the NLRB had the authority to create the rule, it did not have the authority to carry out the enforcement aspects of the rule. So District of Columbia employers should still post the notice but there are no penalties if they do not post the notice. The South Carolina District Court was the second court to rule on the NLRB’s poster requirement. The South Carolina court held that the NLRB did not even have the authority to create the rule in the first place. So South Carolina employers are not required to post the notice. No other courts have ruled on this, yet.

What are employers in Ohio supposed to do?

Opinions are mixed on how employers outside of the District of Columbia and South Carolina should act. Some experts believe that the South Carolina holding can be utilized as a defense for employers who do not post the notice on April 30, 2012. More conservative experts believe that employers should comply with the posting requirement until a court in their specific state rules otherwise.

There are many reasons why non-union employers do not want to hang the poster. Because of these, I am instructing my Ohio clients that based on the South Carolina case it appears that they do not need to hang the poster. I expect more guidance from either the NLRB or additional court holdings in the coming days and will update you as developments occur.

 

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.LEGAL (5342).

How are Union Representation Elections Conducted?

A union representation election occurs after a union organizing drive, after a union files an RC Petition, and both the union and employer campaign for the employees’ votes. Representation elections are conducted by secret ballot on the employer’s property, although some elections have been done by mail-in ballots.

The election is overseen by the NLRB and scheduled to occur when the greatest number of employees have the opportunity to vote. Elections are regularly held during shift changes so incoming and outgoing employees can both vote. When an employer operates three or more shifts per day, an election period will be held during each shift, even though this means some people will vote in the middle of the night.

Election formats are consistent in just about every election conducted by the NLRB. An NLRB field agent sets up a voting booth in a discrete location away from the general public and high-traffic areas. No one from management or the union is allowed to hang around the voting booth, and in fact, employers should ensure that the union personnel does not remain on company property during the voting.

Management and the union each select an employee to act as an observer. The observer’s responsibility is twofold. First, the observer makes sure that only appropriate employees vote by either knowing the voter personally or confirming the voter is who he says he is before allowing the voter to vote. Each observer can challenge the vote of someone whom they believe should not be voting. Challenged votes are set aside and only counted under certain circumstances at the end of the voting period. Second, the observer is tasked with ensuring that the other side does not engage in election misconduct like campaigning at the voting booth.

The NLRB takes impartiality and secrecy very serious, so voting occurs inside an election booth that the Board Agent brings with her to the voting site. These booths are enclosed on all four sides, and provide a greater level of privacy than the voting booths I use to case political votes in Central Ohio.

The voting period usually occurs in one or two hour segments. After the last voting period ends, the Board Agent literally counts the votes in open and all members or management, employees, and union personnel are invited to listen and watch as the votes are counted. Only if the number of challenged votes could change the outcome of the election will the challenged votes be counted. For example, if 100 employees voted and the employer won 73 votes to 20 votes with 7 challenged votes, those 7 votes will not be counted because they would not affect the outcome of the election.

When an employer wins an election, the union must wait one year before filing another RC Petition and getting another representation election. When a union wins a representation election, bargaining for a first contract typically begins within a few weeks of the election. Of course, both the union and the employer are free to formally object to the election and its results, under certain circumstances, with the NLRB, which may result in another election if the winning side’s election activity greatly tainted the election results.

NLRB Governs Social Media

As appearing in the Human Resource of Central Ohio (HRACO) monthly newsletter

 

NLRB Governs Social Media of Both Union and Non-Union Companies

In last month’s HRACO newsletter, I gave a brief overview of the many changes occurring at the National Labor Relations Board and the new rules that the Board implemented covering both union and non-union companies. If you have not read it, go back and read it now. The changes are coming fast and furious and affect almost every private employer. One change I did not cover was the Board’s governance of social media use by employees. Social media is so important that it gets its own article in this month’s newsletter.

Why Does The NLRB Care About Social Media

The National Labor Relations Act applies to both non-union employees and those represented by labor unions. This 1935 law was originally designed to protect employees’ rights to organize unions, engage in labor strikes, and bargain collectively in manufacturing settings.

One hallmark of the Act is that employers cannot stifle an employee’s ability to discuss wages, hours, and other terms and conditions of employment. Thus, employers cannot implement policies – including modern day social media policies – that could reasonably be understood by employees to prohibit them from discussing their terms and conditions of employment.

Because of the newness of social media, employers do not have much guidance from courts as to what an appropriate social media policy should include. The NLRB is filling this void and quickly shaping the future of social media in the workplace. Employers who created or updated their social media policies even as recently as a year ago should review them again to ensure they still comply with the evolving NLRB guidance.

Since you probably haven’t reviewed your social media policy since it was drafted, here’s a little encouragement to review it for compliance. Over the past year, employers – both unionized and non-union – have lost the overwhelming majority of social media cases decided by the NLRB. These losses have culminated in monetary fines, reinstatement of terminated employees, payment of lost wages, and public criticism of corporate policies.

The penalty is even greater for non-union companies. For example, if employees of a non-union employer attempt to organize a union but lose a representation election, the Board can use the employer’s “illegal” social media policy to overturn the election result and order a new election even if the social media policy was not at issue in the election.

Do I have your attention?

What The NLRB Says Employers Can And Cannot Include In Social Media Policies

While the nuances of each company’s social media policy will vary because the policies are tailor-made for individual companies, here is a guideline of what the National Labor Relations Board believes is permissible and impermissible when it comes to social media policies.

SOCIAL MEDIA POLICIES SHOULD NOT

SOCIAL MEDIA POLICIES CAN

Broadly prohibit employees from posting comments that embarrass, harass, disparage, or defame the company, or that demonstrate inappropriate, insubordinate, disrespectful, unprofessional, offensive, rude, or discourteous behavior Prohibit posts that violate the employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.
Prohibit employees from posting pictures of themselves with identifying information about the employer, i.e. uniform or logo Require adherence to securities regulations, health privacy rules, confidentiality of trade secrets, and similar laws
Prohibit posting comments about the employer and their terms and conditions of employment. Prohibit vulgar, obscene, threatening, intimidating, or harassing comments
Include broad adjectives like appropriate or inappropriate, professional or unprofessional, disparaging, or disrespectful. Prohibit from disclosing confidential and/or proprietary information like launch dates, pending reorganizations, and personal health information
Require employees to, in every post, expressly state that their comments are their personal opinions, and not those of their employer Prohibit posting comments on behalf of employer if policy states the purpose is to allow employer to have a consistent, controlled company message.
Broadly prohibit employees from depicting the employer, its name, property, logo, trademark, service mark, copyrighted name, or from identifying themselves as the employer’s employees. Require employees to post disclaimers that the views expressed in their posts are their own when a post involves the endorsement or promotion of the employer’s products or services.

Confused yet?

How Effective Are Savings Clauses In Social Media Policies

In three words: not very effective. However, the editors want me to explain my answers – kind of like showing my work on a math problem in grade school.

Simply including words like, “Nothing in this policy is designed or intended to restrict an employee’s right to engage in protected activity under the NLRA” or “Nothing in this policy is intended to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities” do not magically transform a social media policy that violates the National Labor Relations Act into one that does not violate the Act.

What Are The Bullet Point Takeaways

Employers should treat social media posts as they would a verbal comment.

Be precise and give examples when drafting social media policies.

All supervisors and human resource personnel must be trained on how to deal with social media.

Consult with counsel, if necessary, before drafting social media policies or disciplining for social media activity.

 

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342