The Acting General Counsel for the National Labor Relations Board (NLRB) issued athird report on employee use of social media.

A federal court for the District of Columbia ruled yesterday that the National Labor Relations Board’s (NLRB) new election rule is invalid. The court held that the NLRB did not properly adopt the controversial new rule, sometimes referred to as the “ambush election rule.”

The court found that the NLRB lacked the necessary quorum when it voted on the rule. Under federal law, a vote is valid if there is a quorum of at least three members voting on the rule. At the time the rule was adopted, the five-member board had three members, and only two of the three members voted on the rule. One member, Brian Hayes, expressed his opposition in a public hearing but did not actually participate in the vote. 

In response to the court’s decision, the NLRB announced that it suspended the implementation of the new rule and elections will proceed under the old rule.

According to the NLRB, about 150 election petitions were filed under the new rule. Many of those petitions resulted in election agreements and several have gone to hearing. The NLRB will contact all parties involved in the 150 cases and “provide them the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.” 

The Court of Appeals for the D.C. Circuit granted the request of the National Association of Manufacturers (NAM) to temporarily stop the National Labor Relations Board (NLRB) from enacting its notice-posting rule.

A federal district court just ruled that the new National Labor Relations Act posting requirement is unlawful. At the present time, it is unclear what the effect of this ruling is on the April 30 posting deadline. HR Informant will be updating you as soon as possible on the effect of this ruling for California employers.

Last year, the National Labor Relations Board (NLRB) promulgated a rule requiring most private sector employers to post a notice informing employees of their rights under the NLRA. The rule was set to take effect on April 30, 2012. 

The U.S. Chamber of Commerce challenged the rule as an unlawful exercise of the NLRB’s authority.

A federal district court in South Carolina agreed, ruling that the NLRB exceeded its authority in violation of the federal Administrative Procedure Act (APA): “The court finds that the Board lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful under the APA … .” 

The National Labor Relations Act (NLRA) posting deadline of April 30 is looming. This deadline has not changed even though there is a court case pending that is seeking to strike down this posting requirement.  

Employers must comply with the deadline unless the court rules otherwise. At this point, the court has not ruled and therefore the deadline stands.

Effective April 30, most private-sector employers must post the new notice issued by the NLRB entitled, “Employee Rights Under the National Labor Relations Act.” Certain industries, such as agriculture, airlines and railroads, as well as some small businesses, are exempt from the NLRA notice requirement.

HR Allen is now selling a convenient all-in-one State and Federal Employment Notices poster with all federal notices for 2012, including the mandatory NLRA notice.

In 2011, the National Labor Relations Board (NLRB) increased its oversight activity relating to employer disciplinary actions for social media postings made by employees. HR Watchdog blogged frequently in 2011 on the NLRB’s activity in this area. 

Yesterday, the NLRB’s General Counsel issued its second report describing 14 social media cases reviewed by its office. The NLRB’s first report on 14 other social media cases was released in August, 2011. 

The purpose of this second report, as stated by the NLRB, is to provide further guidance to labor and employment law practitioners and HR professionals — many of whom grapple with how to handle employees who use social media to air workplace complaints or simply bad-mouth the company. 

Seven of these 14 cases involve questions about an employer’s social media policies. Five of the social media policies were found to be overly broad and unlawful. 

The problem occurs when a social media is written so broadly that it prohibits employees from discussing wages or working conditions. Employees, in both union and nonunion workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities, including discussing working conditions, pay or other work-related issues. 

If those discussions occur using social media accounts (such as an employee’s Facebook or Twitter account), the discussions may be protected under the NLRA.

The NLRB also stated that it intends to develop a practice of tracking all social media cases and developing a consistent approach. The Acting General counsel asked all regional offices to send cases which they believe to be meritorious to the NLRB’s Division of Advice in Washington, D.C.

The NLRB noted that its report represents its “interpretation” of the NLRA as it applies to social media communications and that some of these decisions are currently pending before the Board. The Board’s eventual determinations in those pending cases will provide further guidance as the law develops.

Days after a U.S. District Court judge for the D.C. Circuit suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. As announced in a press release, the Board:

The National Labor Relations Board (NLRB) voted today to proceed with a controversial election rule despite strong dissent from one member of the board. In a 2-1 vote, Chairman Mark Pearce and Board Member Craig Becker voted to advance the proposal while member Mark Hayes voted no. 

Rumors swirled earlier this week that Hayes might resign or refuse to participate in the vote, leaving the NLRB without the quorum it needs to make major rule changes. However, Hayes said that he did not intend to resign even though he strongly opposes the rule.

Yesterday, Pearce made changes to the proposed rule. Only the revised proposal was approved today, but this revised proposal retains significant portions of the original proposal — portions that remain troubling to businesses. The NLRB vote advanced changes that would eliminate most pre-election challenges and move them to after the workers’ vote and would limit litigation surrounding union elections. Pre-election appeals would no longer be allowed which would speed up the election process.

The NLRB will now draft a final rule which will have to be voted on again. Board Member Becker’s appointment expires at the end of the year, which will bring the NLRB down to two members and without a necessary quorum. The NLRB will have to try and get this rule through to a vote prior that time.

Several provisions of the original proposal were not up for vote today, including provisions that would have: (1) required employers to provide the union with email addresses of employees, (2) required parties to identify issues and describe evidence soon after an election petition is filed, no later than the start of the hearing and prior to any other evidence being accepted; and (3) required that hearings be set for seven days after service of the notice of hearing. These items are still up for consideration for later action.

In dissent, Hayes argued that the NLRB should not proceed with the vote given the significance of the proposed changes.

“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.