The National Labor Relations Board: 2014 Year In Review

David J. Santeusanio is a Partner and Brian M. Doyle is an Associate both in our Boston office.

The NLRB's Expansion of Employee Rights Under the National Labor Relations Act Affects Both Union and Non-Union Workplaces

HIGHLIGHTS:

In 2014, the National Labor Relations Board (NLRB) scrutinized employer policies and practices, protected employee use of social media and employers' email systems to organize and engage in protected concerted activity, and issued rules to accelerate union elections. As the NLRB expands employee rights under the National Labor Relations Act (NLRA) in ways that affect both union and non-union workplaces, employers should take steps to minimize risks of unfair labor practices and violations of the NLRA. Employers should be proactive by evaluating their policies - including policies concerning confidentiality, social media and email - to determine whether those policies may restrict employees' exercise of protected rights. In 2014, the National Labor Relations Board (NLRB or Board) scrutinized employer policies and practices, protected employee use of social media and employers' email systems to organize and engage in protected concerted activity, and issued rules to accelerate union elections. This alert reviews the significant labor law developments of 2014, and offers a brief summary of several decisions and practical steps for employers to identify and navigate potential National Labor Relations Act (NLRA) issues. Because the NLRA applies to both union and non-union workplaces, these Board decisions and labor law developments affect almost all employers. (For a review of the Board's activity in 2013, see Holland & Knight's alert, " NLRB 2013 Year in Review and 2014 Initiatives," Feb. 10, 2014.)

Current Composition of the Board

Throughout 2014, the Board operated as a fully constituted, five-member Board. Member Nancy Schiffer's term expired on Dec. 16, 2014. In December 2014, before control of the Senate changed to the Republicans, the Senate confirmed Lauren McFerran to the Board seat being vacated by member Schiffer. Member McFerran is formerly the chief labor counsel for the Senate Health, Education, Labor and Pension Committee under former Chairman Tom Harkin (D-Iowa). The Board is now comprised of three members with pro-union backgrounds and two members from the private sector with backgrounds representing management in labor disputes.

Impact of the U.S. Supreme Court's Noel Canning Decision

On June 26, 2014, the U.S. Supreme Court affirmed the D.C. Circuit Court's opinion in National Labor Relations Board v. Noel Canning. In short, the Supreme Court concluded that the President Obama's January 2012 appointment of three members to the Board was unconstitutional because it violated the Recess and Appointments Clause of the Constitution, and the ruling called into question the Board's decisions made after the January 2012 appointments. (For a review of the Supreme Court's decision, see Holland & Knight's alert, " The Supreme Court's Noel Canning Decision and the NLRB's Response," July 16, 2014.)

Following the Noel Canning decision, the Board began addressing its decisions that were affected by the Supreme Court's ruling. For example, on Dec. 16, 2014, the Board revisited the unfair labor practices charge brought against Noel Canning, which was the subject of the Board's February 2012 decision and order that ultimately led to the Supreme Court's decision. The now constitutionally appointed Board summarily adopted the previous Board's February 2012 order. Ultimately, the Supreme Court decision will likely have little impact on employers confronted with decisions that were rendered invalid by the Noel Canning decision, as the Board is likely to continue ratifying or adopting those decisions affected by the Supreme Court's decision.

Use of Employer Email for Union Organizing

The Board continues to protect employees' use of employers' email systems as a tool for union organizing and other protected concerted activity under Section 7 of the NLRA.

In Purple Communications, Inc., the Board reversed its 2007 Register Guard decision and significantly expanded the right of employees to use their employer's email systems for union organizing and other protected concerted activities. In Register Guard, the Board concluded that an employer may completely prohibit employees from using the company email system for noncompany-related purposes (including union organizing and engaging in otherwise protected activity), so long as the ban was not applied in a discriminatory way. In Purple Communications, the Board explicitly overruled Register Guard. The Board observed that the workplace is "uniquely appropriate" and "the natural gathering place" for employees to communicate about labor organizing, and the use of email is a common form of communication that has dramatically expanded since its Register Guard decision.

The Board concluded that employees who have rightful access to their employer's email system in the course of their work are presumed to have a right to use the email for union organizing, discussions about terms and conditions of employment, and other statutorily protected communications during nonworking time. The Board attempted to strike a balance between "accommodat[ing] employees' Section 7 rights" with "employers' legitimate interests" and will allow employers to rebut this presumption, including a total ban on nonwork use of email, "by demonstrating that special circumstances make the ban necessary to maintain production or discipline." The Board then went on to state that, because limitations on employee communications should be no more restrictive than necessary to protect the employer's interests, it "will be a rare case where special circumstances justify a total ban on non-work email use by employees." The Board also stated that employers will be required to articulate the specific legitimate interest at issue and demonstrate how that interest supports the restriction on the use of email.

Although the Purple Communications decision addressed only email use, the Board suggested that its analysis could be expanded to "[o]ther interactive electronic communications, like instant messaging or texting." The decision was also limited to email use by employees during nonwork hours. Consequently, employers may continue to restrict the use of its email system during working hours. (For a more in-depth review of this decision, see Holland & Knight's alert, " NLRB Expands Employees' Right to Use Employers' Email for Union Organizing," Dec. 16, 2014.)

Social Media and Employee Insubordination

The Board continues to protect employees' use of social media to organize and engage in protected concerted activity. In one case, the Board provided guidance by identifying the type of online conduct that crosses the line from protected concerted activity to advocating insubordination, which falls outside the protections of the NLRA.

In Three D, LLC (Triple Play), the Board concluded that a restaurant had violated the NLRA when it terminated an employee for making a Facebook post that was critical of the restaurant. 361 NLRB No. 31 (Aug. 22, 2014). A former employee of the Triple Play Sports Bar was upset that Triple Play had miscalculated her income tax withholdings, resulting in her unexpectedly owing taxes to the state. She posted a "status update" on Facebook criticizing the owners of Triple Play. In response to her post, other people, including current employees and customers, posted derogatory comments about Triple Play and its owners. One current employee, a waitress, posted that she also owed taxes and called the owners of Triple Play a derogatory name. Another employee, a cook, merely hit the "Like" button on "status update." Triple Play learned of the Facebook posts and fired the waitress and the cook. The Board ruled that Triple Play violated the NLRA. The waitress' comment, despite its use of profanity, constituted protected, concerted activity because it was a complaint about the terms and conditions...