Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

Currently, there are two NLRB members sitting by virtue of Senate confirmation, including Member Schaumber, a Republican appointee whose term expires in August.  Members Pearce and Becker are recess appointees appointed by the President in March, 2010.  A procedural maneuver by Senator Harkin to slip Member Becker, the most controversial of the Obama appointees, into a full term was blocked on the Senate floor late last week.  Republican Brian Hayes, who had been nominated by the administration for a full term, failed to receive a recess appointment from the President when he gave such appointments to Democrats Pearce and Becker.  Thus, without additional Board appointments or confirmations, there will be three sitting Democrats and no Republicans on the five-member NLRB by September 1, as well as a new General Counsel appointed by the White House.  Meisburg's resignation is also likely to fuel speculation that some sort of deal can be worked out between Democrats and Republicans to re-staff the full Board and the General Counsel's office at the same time. From the employer's perspective, such an agreement is hoped for but difficult to envision.

The employer community is expecting a shift in Board policy, rules and decisions toward the interests of labor. The fact that at or about the time of the recess appointments the Board hired an outside expert in the field of "rulemaking" has lead to enormous speculation that the NLRB intends to actively change its rules going forward. Many have also recognized that the Board does not have to undertake a formal process to change many of its current rules relating to elections.
 
The General Counsel can heavily influence the agenda and timing of cases that come before the full Board. There are a host of cases that can be lined up for decision, many of which can serve to overturn Bush era precedents unpopular with organized labor. One can expect the Board to revisit issues relating to the definitions of supervisors and independent contractors; whether employees have the right to call for an election after voluntary card check recognition; whether temporary employees can be organized; the use of email; whether non-union employees have Weingarten rights; pre-recognition bargaining; bannering; cessation of dues checkoff after contract expiration; whether "salts" must have a genuine interest in the job, and many more issues.

Even without the Employee Free Choice Act, the passage of which now appears unlikely, these developments should create greater opportunities for labor and a more challenging environment for business.

Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the employer’s email system, including union-related communications.  Register Guard established that employers may prohibit this type of email even if the employer permits employees to send personal messages via email, such as an announcement of someone’s birthday, as long as the employer did not discriminate between union and nonunion communications of a similar nature.   

In Oakwood, the Board broadly defined a “supervisor” under the National Labor Relations Act (“NLRA”) as a person who assigns work to other employees using independent judgment and discretion.  Supervisors are not protected under the NLRA and can be ordered to assist the employer in its anti-union activities or discharged for assisting a union.  The Board stated that an individual’s judgment is independent where it is not dictated or controlled by instructions, such as employer policies or rules. 

Should the Board revisit the holding of either case, the result will most likely be employee- and union-friendly. 

In her Register Guard dissent, Board Member Liebman (now Chairman) would have found that “banning all nonwork-related ‘solicitations’ is presumptively unlawful absent special circumstances.”  When considering Register Guard on remand from the D.C. Circuit, the Board may now follow Liebman’s lead.  It will likely hold that the employer cannot preclude employees from using the email system for union-related matters. 

• What can employers do?  Employers should try to prohibit union-related solicitations by strictly prohibiting any personal use of their email systems.  Circuit courts may uphold such a policy even if Register Guard is reversed along Liebman’s interpretive lines.

In the Oakwood dissent, Liebman wrote that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks. If Oakwood is revisited, the Board will likely interpret “supervisor” less broadly.  This would make it more difficult for employers to classify lead persons who assign duties on a daily basis as supervisors.  Thus, in a union organizing drive, lead persons would be part of the bargaining unit and could advocate unionization to the workers they oversee. 

• What can employers do?  To ensure that lead persons can be classified as supervisors, employers should make sure that they do more than merely assign tasks (e.g. evaluate employees for raises, hire subordinates, make effective recommendations for hire, or authorize time off or overtime).