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NLRB: Back in Business

By Allen Smith  7/31/2013
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“For the first time in more than a decade, the National Labor Relations Board (NLRB) will be fully confirmed and fully functional,” Sen. Tom Harkin, D-Iowa, said July 30, 2013, after the Senate confirmed five nominees to the NLRB.

In the first term of the Obama administration, the board had been in hot pursuit of employer regulations on a number of fronts, including confidentiality in wages, discipline and investigations; electronic communications; complaint policies; class-action waivers; dress codes; access rules; social media restrictions; and at-will disclaimers. The board’s activism was the target of opposition by big business, which welcomed a D.C. Circuit determination that President Barack Obama’s recess appointments of two board members were not valid, casting a cloud over all the decisions the board made in 2012. That case (Noel Canning) remains to be decided by the Supreme Court.

This year, Congress still opposed confirmation of two recess appointments, Sharon Block and Richard Griffin Jr., who Obama renominated for the board. Finally, as part of a Senate deal with Republicans, Obama recently withdrew the nomination of Block and Griffin and nominated two new members for the board.

And the Approved Nominees Are …

The board members—three Democrats and two Republicans-—are:

  • Mark Gaston Pearce, for the term expiring Aug. 27, 2018.
  • Kent Yoshiho Hirozawa for the term expiring Aug. 27, 2016.
  • Nancy Jean Schiffer for the term expiring Dec. 16, 2014.
  • Harry Johnson III for the term expiring Aug. 27, 2015.
  • Philip Andrew Miscimarra for the term expiring Dec. 16, 2017.

“These five nominees bring diverse backgrounds and qualifications to the board, and I am confident that each will serve the board well,” Harkin remarked.

Pearce has served on the board since 2010, and has been chairman since 2011. He also previously worked in the Buffalo, N.Y., regional office of the NLRB.

Hirozawa joined the NLRB staff in 2010, serving as a field attorney.

Schiffer, a Democrat like Pearce and Hirozawa, was general counsel for the AFL-CIO, and also has worked for the United Auto Workers and served as a staff attorney in the NLRB’s Detroit regional office.

Johnson, a Republican, is a partner at a Los Angeles law office, Arent Fox, and practices labor and employment law.

Miscimarra, also a Republican, is a partner in a Chicago law office, Morgan Lewis, where he also practices labor and employment law.

New Chapter

“The time has come to start a new chapter for the NLRB,” Harkin remarked. “It’s time to ratchet down the political rhetoric that has recently haunted this agency, and let the dedicated public servants who work there do their jobs.”

AFL-CIO President Richard Trumka issued a blunter statement, saying, “It is grossly unfair that Republican intransigence prevented two superb and highly qualified NLRB members, Dick Griffin and Sharon Block, from continuing to serve the American people. However, the new NLRB members, Nancy Schiffer and Kent Hirozawa, also bring impeccable qualifications and experience to the board.”

Pearce chimed in, saying, “I am grateful for the service of Richard Griffin and Sharon Block, who have so ably served as members of the board” in the capacity of recess appointments. “Now, our newly confirmed board looks forward to joining all the dedicated public servants who work for the American people at our headquarters and in NLRB offices throughout the country. Together, we will continue to do the work that is necessary to enforce the law, so that business owners and employees can prosper and improve the lives of their families, their communities and our country.”

What Might Be in Store

Steven Bernstein, an attorney at Fisher & Phillips in Tampa, predicted that the newly convened board will challenge the following in employee handbooks:

  • Vague or ambiguous language.
  • Advance authorization before engaging in the conduct at issue.
  • Broad categories of prohibited or required conduct.
  • Any language purporting to restrict internal wage or disciplinary discussion.
  • Use of generic terms such as “unprofessional,” “misleading” or “inappropriate.”
  • Language compelling all employees to confine their concerns to management.
  • Blanket confidentiality provisions within the context of internal investigations.
  • At-will disclaimers precluding modification by anyone at any time.
  • Access rules reserving managerial discretion or requiring advance approval.
  • Solicitation restrictions extending beyond working time and working areas.

Employers also should be prepared for the full board to dust off its quickie election rulemaking, which has been enjoined, and to cut the union campaign period from 38 to 21 days, making organizing easier and giving employers a smaller window of opportunity to campaign against unions, if they so choose.

The board may steal a page from the National Mediation Board, which oversees labor relations in the rail and airline industries, and permit electronic, off-site voting, which is riper for abuse, Bernstein said in a July 31, 2013, interview.

Controversial decisions during the Bush administration may be overturned now as well. For the past several years, employers have had the benefit of the Register-Guard board ruling, which lets businesses ban the use of company e-mail systems to solicit on behalf of a union. That ruling might be overturned, he predicted.

The board also might overturn a doctrine prohibiting unions from organizing temporary employees within the same business unit as employees, which Bernstein said “could put employers in an awkward situation.”

Weingarten rights, which currently enable union members to have a representative or another employee with them in meetings with management, also might be extended to nonunion members as they were in the Carter and Clinton administrations. This could be another way the board asserts its influence in the increasing percentage of nonunion workforces (only 7 percent of the private workforce is unionized), much the same way the board’s social media pronouncements in nonunion settings have extended its reach.

Organized labor’s influence and membership have receded partly because labor has not formulated a message to resonate with today’s workers, according to Bernstein. Unions win most union elections, but they are filing fewer election petitions than 20 years ago. Bernstein placed the blame on unions not reacting quickly enough to new American immigrants, the shift toward an increasingly female workforce, and the move away from an industrial to a service economy.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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