The National Labor Relations Board Under President Obama
by Josh Viau

Although Congress failed to pass the Employee Free Choice Act (“EFCA”), a key issue during President Obama’s campaign, the changes in the National Labor Relations Board (NLRB) since he took office are providing another avenue for implementing pro-union policies. When President Obama took office, the lack of confirmed nominations had reduced the five-member Board to only two members, Wilma B. Liebman (appointed as Chair by President Obama) and Member Peter Schaumber. In April 2009, President Obama nominated Craig Becker, Mark Gaston Pearce and Brian Hayes to fill the vacancies. Pearce and Becker were appointed by recess appointment on March 27, 2010, and Congress confirmed Pearce’s recess appointment and Hayes’ nomination on June 22, 2010. Schaumber’s term ended in August 2010, leaving the Board with only four members, three of whom are considered pro-union. The Obama Board’s actions thus far have suggested a policy shift that favors labor and could result in EFCA-like changes to established election procedures. The Board's policies have shifted in ways that impact both unionized and non-unionized employers.

Who Are the New Board Members?

Craig Becker: Becker practiced and taught labor law for 28 years prior to his appointment to the Board. Notably, he was Professor of Law at UCLA School of law and Associate General Counsel for the Service Employees International Union and the AFL-CIO.

Mark Gaston Pearce: Pearce was a founding member of Buffalo, New York based Creighton, Pearce, Johnsen & Giroux prior to joining the Board. He focused his practice on union-side labor and employment litigation matters in state and federal court. In 2008, he was appointed to the New York State Industrial Board of Appeals.

Brian Hayes: Hayes worked in private practice for 25 years as a management-side labor and employment lawyer. Prior to his appointment to the Board, Hayes served as a Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions. He is the sole member of the Board who comes from a management-side background.
Notable Activities of the “Obama Board”

Not surprisingly, the Board’s recent activity includes a number of noteworthy complaints and proposed rule changes. In the brief time they have been together, the Board has proven to be sympathetic to union positions.

Proposed “Quickie Election” Rules

On June 21, 2011, the Board proposed changes to the procedure for unions to petition for, and hold votes on, union representation that would allow for “quickie” elections. The proposed changes would give employers significantly less time to respond to election petitions and inform employees about their position on the election, which was also one of the key tenets of EFCA.

Under the current rules, a union must file a petition with the NLRB for a secret-ballot election to decide the issue of union representation. Employers often first learn of efforts to unionize upon receiving an election petition, at which point the union has likely engaged in significant campaigning. Under the current rules, employers routinely have 30-40 days before the election is held to communicate their thoughts and concerns about the union. The proposed rules could cut that time to 10-21 days, making it difficult for employers to counteract pre-petition organizing activity, which has often been ongoing for months or years. In other words, employers will not have an opportunity to “catch up” with the union’s organizing efforts.

Although it is not yet certain, it is likely that the Board will adopt these new procedures as a final rule this Fall.
Suing states over secret ballot amendments

On May 6, 2011, the NLRB's Acting General Counsel filed a complaint in federal court seeking to overturn an Arizona constitutional amendment banning the use of the card-check process in union elections. The NLRB alleges that the Arizona measure directly conflicts with the National Labor Relations Act and is therefore preempted. Specifically, the complaint stated that by “guarantee[ing]” the right of employees to conduct a secret ballot election, Arizona effectively deprives employees of the opportunity for voluntarily recognition based upon presentation of union authorization cards signed by a majority of employees. Under the National Labor Relations Act, employees are allowed to pursue either course of action. Arizona is among a handful of states that adopted measures to counteract EFCA's provisions requiring broader recognition of unions based upon card-checks.

Boeing Case

In April 2011, the NLRB lodged a complaint against the Boeing Company for opening a new facility in South Carolina, a right to work state. The Complaint alleges that Boeing set up a nonunion production facility in South Carolina in retaliation against striking union workers in Washington. Boeing initially planned to build seven 787s a month at its Washington facility, but to meet demand, decided to increase production by three planes a month. Boeing claims that the decision to move the production to South Carolina was a sound business decision because diversifying its operations makes it less vulnerable to disruptions in productivity.

The NLRB survived a motion to dismiss filed by Boeing in June. If the NLRB prevails, Boeing could be forced to make all of its new jets in Washington. The case could have wide-ranging impact on a company’s ability to choose where to do business.

Social Media Cases

On April 12, 2011, the NLRB’s Acting General Counsel issued a memorandum requiring all regional offices to submit future disputes involving social media to the Division of Advice, the group within the NLRB tasked with issuing opinions on novel areas of labor law. The Acting General Counsel cited the lack of precedent from the Board as his motivation for the memorandum. A review of recent decisions from different regions indicates that the directive was likely motivated by conflicting decisions. In October 2010, for instance, the NLRB’s Connecticut Regional Office issued a complaint against an employer for terminating an employee for making disparaging posts about a supervisor on Facebook. In contrast, in 2009, the NLRB refused to issue a complaint based upon an employer’s adoption of a social media policy that prohibited disparaging comments about the company and management. Recently, in July 2011, the Division of Advice dismissed a complaint against Wal-Mart brought by an employee who allegedly complained of management “tyranny” on Facebook.

On August 18, 2011, in an apparent attempt to clarify the Board’s position, the General Counsel issued a report detailing the agency’s efforts to pursue actions against employers with overly broad social media policies. The report details the Board’s position that many employers’ social media policies unlawfully deter employees from engaging in concerted protected activity online. This position impacts both unionized and non-unionized employers. Some examples of the provisions that were found to be unlawful include prohibitions on “disparaging remarks when discussing the company or supervisors,” “offensive conduct,” and “statements that lack truthfulness or that might damage the reputation or goodwill” of the company. Given the NLRB’s position, employers should carefully craft their social media policies in a manner that does not run afoul of the NLRA.

If you have any questions about the Board’s recent activity or any other labor and employment matters, please feel free to contact an Elarbee Thompson attorney.