The National Labor Relations Board has been reduced once again to only three members when NLRB Chairperson Wilma Liebman departed from the Board when her term ended on August 27, 2011.  With the expiration of Liebman’s term and the impending expiration of Member Craig Becker’s recess appointment on December 31, 2011, the NLRB may soon face a return to the gridlock and inaction that plagued the Board between December 2007 and March 2010, when it was reduced to two members.

Although the two-member Board, which included Liebman, issued nearly six hundred decisions between late 2007 and 2010, its actions were summarily invalidated by the Supreme Court in New Process Steel L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010).  The Court held in New Process Steel that the Board must have a quorum of three members in order to fully exercise the Board’s powers.  In response to the decision, President Barack Obama recess-appointed Becker and Member Mark Pearce in July 2010 to return the Board to a full quorum.   With Liebman’s departure, Pearce has been designated as the new Board Chairman.   

Since that time, House and Senate Republicans have been highly critical of the Democratic majority Board’s recent rulemaking and adjudications, most notably a recent rule requiring employers to post notices of employees’ NLRA rights, a proposed rule that would affect the timing and process for union elections, and a NLRB case filed again Boeing, Inc. for allegedly relocating work from Washington State to South Carolina in order to avoid potential future strikes. In upcoming days and weeks, House Republicans are expected to vote on legislation to halt the Boeing case and overturn various Board rulemaking initiatives.

Meanwhile, the possibility of another powerless two-member Board has become increasingly likely, as Republicans are likely to prevent votes on Obama Administration nominees to replace Liebman and Becker and to keep the House of Representatives in pro forma session to avoid additional recess appointments. Although some legal experts have questioned the effect of House pro forma sessions on the Senate, which would actually vote on Board nominations, such a move arguably could prevent the Board from acting indefinitely. A return to two members would not prevent NLRB regional offices from conducting representation elections and handling unfair labor practice cases, but would halt any appeals of those cases to the Board, as well as the Board’s ability to issue final rules.

Liebman, whose term ended on August 27, 2011, was first appointed to the NLRB as a Member by President Bill Clinton in October 1997 and was confirmed the following month. President George W. Bush appointed her to two additional terms in 2002 and 2006. President Obama designated her Chairperson on January 20, 2009. The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. The fifth seat on the Board has been vacant since the expiration of former Member Peter Schaumber’s term in August 2010.   In January 2011, President Obama nominated Terence Flynn, who is currently Hayes’ Chief Counsel, to fill the vacancy created by Schaumber’s departure, but that nomination has not been acted on yet by the Senate. 

 On August 30, 2011, the NLRB will publish a final rule in the Federal Register requiring private employers to post workplace notices of employee NLRA rights. The posting requirement, which takes effect on November 14, 2011 is intended to inform employees - both unionized and non-unionized - of their NLRA rights and is patterned after similar posting requirements under the Fair Labor Standards Act, the Family and Medical Leave Act, and a recent Department of Labor rule requiring posting of NLRA rights by federal contractors. The rule will not apply to non-NLRA employers, including employers of railroad, airline, and agricultural workers. Although already required to post the similar Department of Labor notice, covered federal contractors will also be required to post the NLRB notice.

The final rule requires employers to post an 11-by-17 inch poster in the workplace and it also requires covered employers to post the notice on an internet or intranet site, if personnel rules and policies are customarily posted there. However, employers will not be required to distribute the posting by email, Twitter or other electronic means. The poster will be provided for download on the NLRB website and available at no charge in hard copy form at NLRB regional offices.  The NLRB announced that the posters will available by November 1, 2011.

Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.

An NLRB fact sheet regarding the new posting requirements can be found here.

On August 18, 2011, NLRB Acting General Counsel Lafe Solomon released Memorandum OM 11-74, which reviewed recent case developments concerning the use of social media. With workers increasingly relying on social media to organize or raise concerns about working conditions, and employers increasingly relying on restrictive workplace social media policies in response, the Office of the General Counsel sought to provide guidance concerning use of these popular media, including Facebook, Youtube, and Twitter.

A review of 14 social media cases investigated by the Office of General Counsel that were submitted by NLRB regional offices to the NLRB’s Division of Advice for guidance, the report covered several issues relevant to the modern workplace. The cases under consideration included an examination of whether employee Facebook and Twitter postings were protected concerted activity, whether Facebook or Youtube videos of interviews with non-union workers could be unlawful and coercive, and whether various employer social media policies were lawful.

Nine of the 14 cases referenced in the report concerned Facebook or Twitter posts by employees, considering whether such postings were considered protected or concerted activity. In four of those cases, the NLRB’s Division of Advice concluded that employees engaged in protected concerted activity. In five, the Division found that the communication was not protected. In examining these cases, the Division applied its traditional, non-social media precedents. Whether a communication is protected depends not on whether it is communicated via Facebook versus via leaflet, but whether the employee acted in concert with or on behalf of other employees versus whether she acted only on her own behalf. The former is protected, the latter not.

In one case, the Division concluded four employees engaged in protected concerted activity where they posted on Facebook to defend a co-worker eventually terminated for “poor performance.” Even though the Facebook posting included profanity, the Division noted that this feedback, which was in response to a request from the co-worker prior to her termination meeting with management, “directly implicated terms and conditions of employment” and was “textbook” protected concerted activity. Similarly, in another case, the Division found protected concerted activity  where several restaurant employees complained about their employer’s withholding policies on Facebook and pledged to raise the issue at an upcoming meeting with management.

In contrast, the Division found no concerted activity where employees of another restaurant complained about their employer’s tipping policy on Facebook but never raised the issue with management. In other cases, the Division held that personal criticism of managers, on either Facebook or Twitter, were not protected where such comments expressed frustration but did not seek to engage co-workers in discussion or future meetings to address the concerns. 

Several cases held employer social media policies invalid for various reasons, including  but not limited to, categorical bans on depicting the employer in any media without advance permission or bans on “inappropriate” postings that employees “would not want their manager or supervisor to see.” The Division reasoned that these sweeping prohibitions threatened protected rights under Section 7 of the National Labor Relations Act, including criticism of employer policies or working conditions. The Division, however, upheld an employer media relations and public affairs policy that limiting employee contacts with the press, concluding that the rule was intended to prohibit employees from speaking to reporters on their own behalf, rather than to engage in protected concerted activity.

Finally, the report also addressed union coercion in a case in which union organizers visited a non-union jobsite and questioned the employees about their immigration status. The Division concluded that the videos, which were posted to Facebook and Youtube, were unlawful coercive conduct in violation of Section 8(b)(1)(A) of the NLRA.