While the potential adoption of the Employee Free Choice Act (H.R. 1409, S. 560), which is currently pending in Congress, has generated the most media attention, a much less publicized but equally compelling change looming over the labor law horizon is the change in the composition of the National Labor Relations Board (NLRB or the Board). In addition to the appointment of Wilma Liebman as Board Chairman, President Barack Obama will fill three additional Board vacancies. The newly constituted Board will represent a philosophy and viewpoint that is decidedly pro-labor. As a result, employers can expect significant modifications of NLRB rulings that in the past have been favorable to employers. This memorandum reviews some of the key NLRB decisions that the newly constituted Board may undertake to reverse, explains the potential impact of those changes and suggests responsive action for employers.

Employees’ Use of Company E-Mail

Current Law

In Register Guard, 351 NLRB No. 70 (2007), the Board concluded that employees have no statutory right to use their employers’ e-mail systems for engaging in statutorily protected organizational activities. The Board determined that the use of company e-mail did not constitute traditional solicitation, which requires that employers’ property rights give way to employees’ Section 7 rights. Thus, employers could legally prohibit employees from using a company e-mail system for nonwork-related purposes, including union organizing, if the enforcement was nondiscriminatory.

The Board defined unlawful discrimination as “disparate treatment of activities or communications of a similar character because of their union or other Section 7 protected status.” Although the employer allowed employees to access the e-mail system for personal purposes, its prohibition against union solicitation was not discriminatory because it equally prohibited solicitation for other organizations, except for a companysponsored solicitation for United Way.

Likely Change

In their dissent, Members Liebman and Dennis Walsh concluded that where an employer provides employees access to e-mail for regular, routine use in their employment, it is presumptively unlawful to ban all nonwork-related solicitations, absent extenuating circumstances. An employer can rebut this presumption only by demonstrating that the use of company e-mail interfered with the efficient operation of the system.

The dissent also took issue with the majority’s definition of unlawful discrimination. They stated that discriminatory enforcement occurs when it interferes with employees’ Section 7 rights, regardless of the employer’s motive. Thus, if an employer wants to differentiate between permitted and prohibited use of employer equipment or media, it must demonstrate some legitimate business reasons and the justification must outweigh the interference with Section 7 rights.

The Liebman Board may therefore overrule Register Guard to prohibit employers from restricting employees’ use of company e-mail systems for Section 7 activities when the employees have access to the e-mail for routine workplace communication. This may enable employees to use a company’s e-mail system freely for organizational purposes.

Suggested Response

Although it is difficult to predict the extent to which the Liebman Board may overrule or modify Register Guard, employers should review e-mail policies now to ensure that sufficient restrictions are in place to preclude employees’ use of e-mail for organizational purposes. Employers, therefore, may consider the following:

  • Review and update e-mail policies and require employees to sign an acknowledgment that email and Internet use is subject to monitoring and that there is no expectation of privacy in e-mail communications.
  • Instruct employees that they are not permitted to use the e-mail system to solicit for commercial ventures, political causes, and/or groups or clubs.
  • If employees may use e-mail and Internet for some personal use, clearly define the limits of that use and enforce the policy in a nondiscriminatory manner.
  • Ban “extensive” use or permit “occasional” use that does not impede productivity or work.

If the Liebman Board, however, adopts the dissent’s approach in Register Guard, employees may have the presumptive right to use company e-mail for such communications even if company policy prohibits solicitation generally, absent extenuating circumstances. The employer may restrict employees’ use of company e-mail by allowing such use only during nonwork time.

Nonunion Employee Representation Rights

Current Law

In IBM Corp., 341 NLRB No. 148 (2004), the Board held that nonunionized employees do not have a right to have a co-worker present at an investigatory interview that may result in disciplinary action. In so holding, the Board overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 676 (2000), which had extended this right to nonunionized employees. The Board concluded that “the right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.”

Likely Change

The Liebman Board may return to the holding of Epilepsy Foundation and extend the right to representation to both union and nonunion employees. If so, employers will have to modify their disciplinary processes to incorporate these expanded employee rights, and train managers and supervisors in the implementation of these rights.

Suggested Action

If the Liebman Board overrules IBM Corp., employers should be aware of the following:

  • All employees, with the exception of management and supervisory personnel, have the statutory right to request the presence of a co-worker at an investigatory interview.
  • Any meeting with the employer that the employee believes may result in disciplinary action constitutes an “investigatory interview.” These interviews would not include general discussions, such as administering instructions, training, or corrections of work technique.
  • An employer need not offer representation, but must comply when the employee makes such a request.
  • Representation rights do not apply to disciplinary meetings where the employer has made a final decision and the meeting serves only to inform the employee of the decision.
  • The employer need not postpone the interview indefinitely because the coworker requested by the employee is not available, if another qualified employee is available.
  • The employer may cancel the meeting and impose discipline.

Definition of Supervisor

The National Labor Relations Act (NLRA or the Act) excludes supervisors from the definition of employees entitled to protection under the Act. It provides a three-part test for determining supervisory status. Employees meet the statutory definition of a supervisor if: (1) they have the authority to exercise one of the 12 listed supervisory functions with regard to employees (hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, discipline, responsibly to direct, adjust grievances or effectively to recommend such action); (2) the exercise of that authority is not merely routine or clerical, but requires the exercise of independent judgment and discretion; and (3) that authority is held and exercised in the interest of the employer.

In NLRB v. Kentucky River Community Care, 532 U.S. 506 (2001), the Supreme Court rejected the Board’s conclusion that technical and professional employees, such as nurses, did not meet the statutory definition of a supervisor because they did not exercise independent judgment when directing lesser-skilled employees. In response, the Board clarified the legal standard of a supervisor in Oakwood Healthcare, Inc., 248 NLRB No. 37 (2006), and two companion decisions issued the same day.

The Board in Oakwood held: (1) the authority to “assign” requires the power to order an employee to work in a specific place or time, and includes the authority to assign significant overall duties; (2) the term “responsibly to direct” requires the individual to be accountable for the performance of the tasks they assign to others; (3) the exercise of “independent judgment” requires the alleged supervisor to act or recommend action free from the control of others, which must involve discretion that goes beyond routine or clerical. With respect to part-time or rotating supervisors, the Board held that employees who spend a regular and substantial portion of their time performing supervisory duties constitute supervisors.

Members Liebman and Walsh strongly dissented from the majority holding in Oakwood. They argued that the legislative intent was to exclude minor supervisory employees from the definition of supervisor.

Likely Change

A stricter definition of supervisory status could arise either from a reconsideration of the Oakwood ruling by a newly constituted Board, or by the passage of the RESPECT Act (Re- Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act, H.R. 1644, S. 969). The RESPECT Act would remove the terms “assign” and “responsibly to direct” from Section 2(11) of the NLRA. Until the Board or federal law modifies the definition of supervisor, however, employers should take steps to ensure employees’ supervisory status. Thus, individuals currently designated as supervisors must possess the authority and bear the requisite responsibility and accountability contemplated by the Oakwood decision.

Suggested Action

Employers should consider the following:

  • Prepare a detailed job description for each supervisory position, describing the supervisory duties and the extent of discretion afforded to the designated supervisor in assigning work and responsibly directing his or her subordinates.
  • Have individuals designated as supervisors participate in supervisory/ management training programs. Record their attendance and retain the record.
  • Involve the designated supervisor in the employee grievance/disciplinary process, wherever possible, and empower the supervisor to resolve any such grievances.
  • Empower individuals designated as supervisors, wherever feasible, to oversee and account for an entire work unit or department as opposed to “one-on-one task direction.”

Current Law

On July 22, 2008, the Office of the General Counsel of the NLRB issued 6608-10, Guideline Memorandum “Concerning Unfair Labor Practice Charges Involving Political Advocacy.” The General Counsel’s guideline contains instructions for processing unfair labor practice charges involving political advocacy activities by employees. It also provides guidance to employers on when disciplinary actions for these activities may be appropriate.

The guideline resulted from a series of unfair labor practice charges filed against employers in late 2006. Employers had disciplined employees who left work or were absent without permission to participate in demonstrations protesting proposed changes in immigration regulations. The major issue for employers was whether the employees who had participated in those demonstrations engaged in legally protected activity. Examples of previous work-related political advocacy include protests over mandatory employee drug testing, hospital staffing levels and, in one case, the issuance of visas for foreign workers where the employees based their protest upon a belief that the influx of foreign employees would threaten job security. Conversely, complaints to governmental bodies that do not involve working conditions are not protected under the NLRA. For example, nursing employees who complained about the quality of patient care did not engage in Section 7 protected activity.

In summary, the guideline concludes that:

  • Nondisruptive political advocacy related to a specifically identified employment concern that takes place during the employee’s own time and in nonwork areas is protected.
  • On-duty political advocacy related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules.
  • Leaving or stopping work to engage in political advocacy for or against a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally applied work rules.

With respect to leaving or stopping work, the key element is consistent enforcement of the attendance rules, as well as consistent application of the disciplinary penalties for unexcused absences. As long as employers treat absences to attend political rallies or demonstrations during scheduled work hours in the same manner as any other unexcused absence, the employee’s conduct will likely be unprotected and thus subject to disciplinary action.

Likely Change

We can expect the Liebman Board to adopt an expanded view of the type of conduct that will constitute protected and concerted activity, bringing a wider range of employee activity under that protective umbrella. Accordingly, the Board may regard on-thejob protests that include brief interruptions of work over matters such as employers’ immigration policies as “protected.”

Suggested Approach

For the present, employers should continue to enforce their published attendance rules consistently and apply those rules whenever employees leave or stop work to attend political rallies or demonstrations. Similarly, employers can and should continue to enforce their current policies limiting or restricting solicitation activity.