Report: It's Not Your Father's NLRB Anymore

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August 20, 2012 by   - () Leave a Comment

Attorney Michael Boldt

Editor's Note: The following article on employee and labor relations was written by Michael Boldt, a partner with the Indianapolis law form of Ice Miller LLP and appeared today on the Inside INdiana Business website. Though written for a Hoosier audience, it has application across the U.S. For more information about the National Relations Labor Board, contact Boldt at (317) 236-2327 or, or another member of Ice Miller's Labor and Employment Group. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

Experienced labor relations and human resources practitioners are having a hard time recognizing today's National Labor Relations Board (NLRB)—it is certainly not the board of their early careers. The board has transformed itself from a staid, traditional agency, content to enforce the National Labor Relations Act (Act) behind closed doors, into a very activist, publicity-hungry agency engaged in outreach that borders on marketing.

Under President Obama, the board has taken unprecedented steps to publicize its mission and its decisions. The board has been particularly active trying to make itself relevant, publicly highlighting decisions applying the act to cases involving employees using social media such as Facebook to discuss workplace issues. The board has also engaged in rule-making at a virtually unprecedented pace, publishing rules to speed up the process for employees to vote on union representation and to require all employers to post notices advising employees of their rights under the act.

So far, the board's new "quickie" elections and the notice-posting rules have not gone into effect because courts have issued injunctions to stop them. While the board appeals the courts' decisions in those injunction cases, it continues to take unprecedented steps to expand its influence and relevance.

The latest unprecedented move, launched in June 2012, is the creation of a page on the board's website proclaiming the rights of employees not represented by unions to engage in activity protected by the act. The page was announced in a press release issued by the board on June 18, 2012. It is an interactive page that includes a map-like depiction of the United States and U.S. territories with live links to stories about cases investigated by the board involving employees who are not represented by any union. The stories highlight activity that the board says is protected by the National Labor Relations Act despite the fact that the employees are not represented by a union.

The stories are about employees in various industries and circumstances. They include: construction industry employees who were fired for refusing to work in a rainstorm; a supervisor who was fired for refusing to identify employees who had signed a petition protesting management behavior; hotel housekeeping staff fired for writing letters protesting a wage cut; a vegetable packing plant employee fired for rising safety concerns with the employer and with a safety agency; a customer service representative fired for discussing sharing her salary information with a supervisor; a worker fired for a Facebook posting critical of her supervisor to which other employees replied; and more.

The creation of the Web page could be a reaction to the court decision preventing the employee rights notice-posting rule to go into effect. It may be the board's way of saying, "If we can't require employers to post a notice of employee rights in their non-union workplaces, we will export the information directly to their employees' home computers!"

Many of the stories on the Web page involve activity that has long been considered protected. To that extent the information is nothing new — it is just information that, for the most part, only lawyers that practice before the board were aware of. Now, the board is engaging in proactive outreach to "get the word out." Of course, it remains to be seen whether any employees will look for or find the Web page.

Borrowing from the now-extinct Oldsmobile advertising campaign of a few years ago—it's not your father's NLRB anymore!





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