President Obama Nominates Two New Members to NLRB

On July 16, 2013, as part of a deal to avoid changes to Senate rules on filibusters, President Obama nominated Nancy Schiffer and Kent Hirozawa to serve as members of the National Labor Relations Board (NLRB). At the same time, President Obama withdrew his earlier nominations of two individuals whose recess appointments are the subject of the Noel Canning litigation discussed below. Schiffer was most recently an associate general counsel at the AFL-CIO, and before that, she worked as deputy general counsel to the United Auto Workers. Hirozawa has served as chief counsel to NLRB Chairman Mark Gaston Pearce since 2010, and before that, he worked at a New York law firm that represents employees and unions.

President Obama previously nominated Philip Miscimarra and Harry Johnson to serve as members of the NLRB. Both Miscimarra and Johnson are currently partners at law firms that represent the interests of management. If Schiffer, Hirozawa, Miscimarra and Johnson are confirmed by the Senate, they will join NLRB Chairman Pearce and form a fully-constituted, five-member NLRB.

Supreme Court Will Review NLRB Recess Appointments

In January 2013, the United States Court of Appeals for the District of Columbia Circuit issued a decision in Noel Canning v. NLRB in which it determined that President Obama's January 2012 recess appointments to the NLRB "were invalid from their inception." Since then, the Third and Fourth Circuits joined the District of Columbia Circuit in holding that the Senate was not in recess at the time of the President's recess appointments. As a result, the NLRB only had two valid members during 2012, which is less than the quorum of three needed to issue decisions and orders.

After the D.C. Circuit's decision, the NLRB continued to issue decisions and appealed to the U.S. Supreme Court. In late June, the Court announced that it would review the Noel Canning decision, and many predict the Supreme Court's decision will bring finality and clarity to the confusion created by the challenged recess appointments. In particular, since the NLRB has issued more than 900 decisions since the January 2012 recess appointments, including nearly 300 since the Noel Canning decision, the Supreme Court's decision will likely determine the validity of those decisions, as well as whether they must be re-reviewed by a properly-constituted NLRB.

NLRB General Counsel Provides Guidance on Confidential Workplace Investigations

Both union and non-union employers often mandate that employees keep workplace investigations and complaints confidential. In August 2012, however, the NLRB found that a blanket rule requiring that employees keep investigations and complaints confidential was unlawful under the National Labor Relations Act (NLRA) because an employer's interest in protecting the integrity of its investigations was not sufficient to justify the resulting limits on employees' rights to discuss their terms and conditions of employment. This decision created consternation among many employers who feared that it would inhibit their ability to conduct effective workplace investigations.

In a recent advice memorandum, the NLRB's Office of General Counsel affirmed that blanket policies that bar employees from discussing ongoing workplace investigations and complaints are unlawful, but it also clarified the NLRB's position on employers' confidential workplace investigations policies. In doing so, it reviewed a policy that stated:

"[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

The NLRB's Office of General Counsel found that, while the policy's first sentence listed legitimate goals, the policy's remaining blanket confidentiality mandates violated employees' rights to discuss their terms and conditions of employment. So the Office of General Counsel suggested replacing the last two sentences with the following language that would make the employer's policy lawful under the NLRA:

"[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

As a result, employers that are concerned about their policies on the confidentiality of workplace investigations now have language they can include in those policies to help ensure they will not be found unlawful.

NLRB Upholds Facebook Firing, But Continues Scrutiny of Social Media

In a recent advice memorandum, the NLRB's Office of General Counsel found that an employer did not act unlawfully by firing an employee for making profanity-laced comments about the company in a private group message on Facebook. The General Counsel concluded that the employee's conduct was not protected by the NLRA because her statements were simply "boasting and griping." In the group post, the employee stated that she had told a supervisor to "back the freak off" and typed "F**K…FIRE ME …Make my day," in addition to using other profane language and insulting the company.

The General Counsel considered this conduct in light of a 2012 NLRB decision (Hoodview Vending Co., 359 NLRB No. 36) finding that discussions between coworkers over things like wages, work schedules and job security, even if out of a purely personal concern with no intent to induce group action, involved subjects of such mutual workplace concern that they inherently constituted concerted activity. The General Counsel found the employee's conduct was not protected under this standard, as it did not involve "shared concerns about terms and conditions of employment" and noted that "[t]he [NLRB]'s test for concert is whether the activity is engaged in ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself.'"

This guidance is a positive development for employers, but it also shows that the NLRB is continuing to scrutinize employee conduct on social media related to their terms and conditions of employment, and that such conduct could be protected even if it doesn't address group action.

NLRB Finds Unlawful Rule Barring Union Officials From Using Company Email

The NLRB recently issued a decision finding that an employer's notice warning union representatives that they were spending too much time using the company's email system violated federal labor law. The employer's informational notice to employees said the amount of time union representatives spent on emails during working hours was unacceptably high, and one representative was disciplined following the notice. The NLRB found the notice was "facially discriminatory" because it "placed limitations only on email messages sent by union representatives and related to union business" and was "promulgated in response to email use by union representatives." Significantly, however, the NLRB also found that the employer's policy restricting the use of company electronic media to business purposes only, with limited exceptions for personal use, was lawful. It was the application of that policy, in which the employer singled out union-related messages for more restrictive treatment, that was unlawful.