Labor Law Update for Employers Who Are Not Unionized: Anticipated Changes Under the Obama NLRB
By: RICHARD A. ROSS
July 2010
Like many governmental agencies, the National Labor Relations Board (NLRB or Board), which enforces the National Labor Relations Act (NLRA), has become quite politicized. The five members who serve on the Board are appointed by the President and confirmed by the Senate. During the Bush Administration, the Board consisted of three Republicans and two Democrats. The Bush Board changed or modified many prior Board decisions, resulting in an obvious pro-employer tilt.
With three vacancies on the Board, President Obama recently used his recess appointment authority to appoint two pro-labor individuals to the Board. These two will serve on the Board until Congress adjourns or they are confirmed by the Senate. President Obama appointed Brian Hayes as the fifth member. The Board now has a 3-2 majority of Democrat appointees. Given the individuals President Obama has appointed, it is anticipated that the Obama Board will reverse or modify many of the decisions of the Bush Board. This article addresses two of those decisions that, if reversed, could significantly affect employers that currently have no union representation.
Using Email For Union Organizing
In the ever-changing work environment, using email to communicate has become as common as using the telephone. During the Bush presidency, one case involving the use of emails for union organizing made its way to the Board. In its first decision on the issue, the Bush Board held, in Register Guard, 351 NLRB 1110 (2007), that employers could prohibit employees from using email for non-job related solicitations without violating the NLRA. Thus, the Bush Board held that employers could prohibit use of email for solicitations and communications regarding union-related matters. The Board explained that the ruling was consistent with a long line of Board cases limiting the use of employer-owned equipment, such as the telephone system, for union solicitations.
In the decision, however, then Board member Wilma Liebman, wrote a strong dissent. Liebman is now Chair of the NLRB, having been appointed to that position by President Obama. The decision was appealed to the District of Columbia Court of Appeals, which upheld the email rule but reversed a different portion of the decision. Given Chair Liebman’s dissent and recent public comments, it seems quite likely that the Obama Board may modify or even reverse this decision. At the very least, if a case involving email comes before the Obama Board, we can expect new law to emerge.
The Right to Have a Co-Worker Present During an Interview That Could Lead to Discipline
Since the Supreme Court’s decision in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), employees who are represented by a union are entitled to have a co-worker or shop steward present during an investigatory interview that could lead to discipline. These so-called Weingarten Rights were limited to unionized employees until the early 1980s, when the NLRB expanded those rights to non-unionized employees. The Board has flip-flopped several times on this issue over the years, with the latest ruling in IBM Corp., 341 NLRB 1288 (2004), by the Bush Board. In this ruling the NLRB again limited the right to Weingarten Rights to unionized workers.
Again, then Board member Liebman issued a strong dissent in IBM Corp., criticizing the majority for an obvious political decision. In her dissent, Liebman stated, “. . . today’s decision itself is unlikely to have an enduring place in American labor law.” Obviously, this is another decision that is very likely to be overturned by the Obama Board.
Should the Obama Board modify or reverse either of the above cases, we will provide an update and any new employer obligations.
Takeaway
Recent changes in members of the National Labor Relations Board may affect both union and non-union employers.