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CHICAGO--In 2012, only 11.3 percent of employees belonged to a union, down from 27 percent in 1980 and 38 percent in 1950. Because of these low participation figures, the National Labor Relations Board (NLRB) is no longer primarily focused on union elections or collective bargaining, Michael J. Lotito, an attorney with Littler Mendelson in San Francisco, told the audience during a Tuesday concurrent session at the Society for Human Resource Management (SHRM) Annual Conference & Exposition. “The NLRB is now applying the National Labor Relations Act in a nonunion environment,” he said.
Labor Board in Chaos
The NLRB is made up of five members, but there are currently two vacancies. Additionally, a federal appellate court in the District of Columbia, in the Noel Canning case, held that the “recess” appointments of two of the three sitting members were unconstitutional because they were not actually recess appointments as contemplated by the Constitution and so required Senate approval. A 2010 Supreme Court case ruled that the labor board may not act without a three-member quorum.
The board has requested Supreme Court review of the Noel Canning decision, but the high court has not yet decided whether to hear the case. Because of the decision, the validity of hundreds of orders issued since Jan. 14, 2012, has been called into question, and the board’s ability to act in pending and future cases is imperiled, Lotito said. In addition, the term of the board’s chair expires on Aug. 13, 2013. In July, the Senate will consider the two pending board nominations. But on Aug. 14, “we will have a nonfunctioning board,” Lotito said.
The NLRB’s regional offices will continue to investigate charges and process election petitions, and Noel Canning will not immediately change how the current board, acting general counsel, administrative law judges and regional directors interpret and apply the law, Lotito said. But, he added, “I’ve been doing this for a long time, and we’ve never had a mess like we do now.”
Social Media Policies
Against the backdrop of this confusing situation, the NLRB has taken on a new role—that of monitor of employer activity in response to employee social media posts. Since 2006, thousands of employees have been terminated for their social media conduct, Lotito said. The NLRB first became involved in November 2010, when it filed its first complaint regarding social media. In June 2011, the NLRB reported at least one social media case in every regional office. In August 2011, the general counsel issued a report summarizing 14 social media cases, and in January 2012 issued a second report summarizing 14 additional cases. In the third general counsel’s report, issued in May 2012, the board, for the first time, found a social media policy unlawful in its entirety.
The theory behind all of this NLRB activity is that disciplining employees for their social media conduct may violate section 7 of the National Labor Relations Act, which gives employees—both unionized and nonunionized—the right to engage in “concerted activities” for the purpose of “mutual aid or protection.”
According to the NLRB, this means employees have a statutory right to take action to improve working conditions; discuss dissatisfaction with working conditions with one another; discuss wage rates, bonuses and benefits with one another; complain about favoritism, policies, or other terms and conditions of employment; and criticize management’s actions affecting their conditions of employment.
In determining whether an employer’s discipline in response to an employee’s social media post violates the law, the NLRB will examine whether the post “references, involves or concerns” wages, hours, benefits, working conditions, or other terms and conditions of employment, Lotito said. The board will also investigate whether the post is “concerted”—in other words, does it show that employees are working together to advance the common good?
“No one’s handbook would pass NLRB muster,” Lotito said. He suggested that session participants go back to their organizations and try to refine their social media policies to comply more fully with NLRB directives. He suggested that the policy language be narrowly tailored to meet business objectives and that it contain examples of prohibited conduct that clearly would not be protected.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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