Changes for Michigan Employers? New NLRB Appointment for Michigan Regional Office

Changes Ahead.jpgYesterday the National Labor Relations Board (NLRB) through Chairman Mark Gaston Pearce and Acting General Counsel Lafe E. Solomon announced the appointment of Terry A. Morgan as Regional Director in the Detroit Regional Office (Region 7) with a satellite office in Grand Rapids, MI. 

While the appointment of Ms. Morgan's appointment is important for Michigan employers, it has and will be overshadowed by the attention given to President Obama's recent recess appointments to the NLRB (Why Obama’s Recess Appointments to NLRB May Still Be “Good” For EmployersObama's NLRB Appointments: Why the Rush?LXBN TV: Ballard Spahr’s Christopher Willis on Richard Cordray’s Recess Appointment As CFPB Director). 

The appointees are Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block and Republican NLRB lawyer Terence Flynn.

President Obama's appointments returns the NLRB to its full slate of five members for the first time since August 2010. The NLRB previously lost its quorum when the term of Democrat Craig Becker—an earlier recess appointee—expired. Without a quorum, the board cannot rule on cases or create new regulations and this resulted in a backlog of undecided cases.  

Returning to Ms. Morgan, the NLRB press announcement describes her as follows:

Ms. Morgan received her undergraduate and JD degrees from University of Wisconsin in 1981 and 1988 respectively. She began her career in 1988 in the Agency’s Cleveland office (Region 8). She served as a field attorney in both Cleveland and Manhattan (Region 2). In 1997, she was promoted to a supervisory field attorney position in Manhattan where she served until 2004 when she was promoted to a Deputy Assistant General Counsel position in the Division of Operations-Management in 2004. In this position she has had oversight responsibility over a number of regional offices, most recently Baltimore (Region 5) and Cleveland. She will replace Regional Director Stephen Glasser who retired last year.

The NLRB is the federal agency that oversees employees’ rights to organize, supervises union elections, and decides disputes between U.S. private-sector employers and employees.

Hopefully, Ms. Morgan will continue Region 7's practice of releasing, without charge, its publication called "Outreach," which has been a good source of news and events within the Agency, as well as highlights in labor law and practice.  

Social Media and the NLRB: Two Must Read Reports for Employers and HR Professionals

Targeting Social Media.jpg

It is no secret that the NLRB has put employer's social media policies and employee discipline discharges arising out of social media (a/k/a Facebook Firings) in its cross-hairs.

This fact was recently highlighted in another NLRB Press Release (9/7/11) where an administrative law judge found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

Similar to the Buffalo matter, NLRB social media claims generally concern an employee termination related to Facebook postings, blogs, and Tweets, as well as social media policies considered to be overly broad by the NLRB.

Several resources have recently been published that highlight these issues and provide assistance to companies and human resource professionals to avoid ending up in the NLRB’s cross hairs when it comes to social media and the NLRA.

First, the NLRB’s Acting General Counsel recently released a report detailing its investigation into cases involving employer’s social media policies and employee’s use of social media. The NLRB Social Media Report (PDF) is a must read for employers.  

Second, the U.S. Chamber of Commerce released a well-written, comprehensive Report: A Survey of Social Media Issues Before the NLRB (PDF). This should also be a must-read report for human resource professionals and employers. 

The Take-away

The prudent course of action if an employer is considering disciplining or firing an employee for a Facebook posting or other conduct relating to social media is to examine the issue of protected concerted activity under the National Labor Relations, preferably with their labor and employment counsel to avoid ending up as the next NLRB press release. 

The NLRB's Employer Posting Requirements - Hype, Harmful, or Heh?

 

I believe in the dignity of labor, whether with head or hand; that the world owes no man a living but that it owes every man an opportunity to make a living.

John D. Rockefeller

Adding to Mr. Rockefeller's belief, the National Labor Relations Board (NLRB) wants employers to remind their employees that while making a living they also have rights under the National Labor Relations Act (NLRA).  

Specifically, the NLRB recently announced a new rule that requires employers to post a workplace notice advising employees of their rights under the NLRA, which include rights to unionize, collectively bargain, and strike. The new rule applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act and takes effect on November 14, 2011.Here is a link to the NLRB's Q&A regarding the new posting rule.

Soapbox.jpgRhetoric & Reality - A Few Observations 

Not surprisingly, the NLRB's posting rule has generated heated rhetoric from the business community (See National Labor Relations Board is out of Control and NLRB Rule Requiring Posters In Workplace Infuriates Business Groups. It also comes at a time when labor organizations are increasingly critical of President Obama (See Labor's Criticism Of Obama Grows Louder).

Setting aside, however, the competing views on both sides of the union divide, there are two important facts to put this rule in perspective:

First, the rule is enacted at a time when the percentage of private-sector workers belonging to a union is down to 6.9% from the peak of 35% in May 1954. Without adapting to a workplace that has significantly changed since 1954 or otherwise offering employees a compelling reason to organize, it is nothing short of delusional to think that the NLRB's posting requirement will reverse this trend.

Second, James Carville (he is credited with being a cornerstone of President Bill Clinton's successful Presidential Campaign) famously noted that “If You Say Three Things, You Don’t Say Anything.”

With this in mind, the posting required by the NLRB - an 11 by 17 inch poster - advising employees of their rights under the NLRA will likely blend into the sea of verbiage of other posting requirements already found in most workplaces.

For example, the U.S. Department of Labor identifies 11 different employment related laws that must be posted in various workplaces. See U.S. Department of Labor Workplace Poster Requirements. Additionally, employers are required to post notices from the EEOC describing federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. This is in addition to state required posters, such as MIOSHA. 

Conclusion

Employers shouldn't like the NLRB's new posting rule. But I would be much more concerned about the impact of the NLRB's proposed revisions to the union election process than the posting requirement. This is because the revision to the election process essentially threatens to impair an employers’ ability to mount a successful campaign to educate workers about the realities of union representation or counter inaccurate or misleading union claims. But that is just me and I'm getting off my soapbox for a long Labor Day Weekend.