On July 22, 2008, in response to a spate of unfair labor practice charges involving employees disciplined after participating in demonstrations organized to protest immigration legislation, NLRB Geneeral Counsel Ronald Meisburg released a new Guideline Memorandum to aid employees, unions, and employers in determining what kind of political activity is protected by the “mutual aid or protection” clause of Section 7 of the National Labor Relations Act. The General Counsel noted that “[a]s a matter of enforcement policy under the Act, we do not want to equate political disputes with labor disputes, or promote the use of strikes and similar activity for resolving what are essentially political questions.”Section 7 of the Act protects an employee’s rights to engage in concerted activity for “mutual aid or protection.” The Board and the Supreme Court have interpreted this clause as protecting employees when they engage in political activity “in support of employees of employers other than their own” or seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.”

The test that the Board uses to determine if employee political activity is protected is “whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” Thus, if the subject of an employee’s advocacy is directly related to employee working conditions, that advocacy has met a threshold requirement for Section 7 protection. Based on this criteria, the demonstrations against proposed immigration legislation that would require prospective employees to obtain certain clearances before working in this country and would mandate prospective employers to verify each employee’s paperwork seemingly fall under the “mutual aid or protection” clause.

Political activity that is not related to employee working conditions is not protected under the “mutual aid or protection” clause. Examples of unprotected political advocacy include complaints to governmental bodies that do not involve working conditions, and distribution of leaflets calling for the election of certain candidates without reference to any particular employment-related issues or that promote the creation of a workers’ party generally.

Political advocacy that concerns employee working conditions may still be unprotected if the means employed to carry out that advocacy are improper. Once the subject of the activity is determined to be employment related, it must be determined whether the means employed are protected. Political advocacy concerning a specifically identified employment condition is protected if it is not disruptive of work operations and occurs during non-work time and in non-work areas.

An employer may impose lawful and neutrally-applied work rules to restrict employment related political advocacy that occurs on-duty or to discipline employees who leave or stop work to engage in employment related political advocacy.

On May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Board’s application of the holding in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (”Register-Guard“). In Register-Guard, the Board determined that an employer who prohibited the use of the employer’s email system for non-job-related solicitations did not violate section 8(a)(1) of the National Labor Relations Act (”the Act”) when it applied this rule to Section 7 activity. The Board majority held that an employer’s email system is company property that employees have no statutory right to use.

After Register-Guard, Regional Officers were directed to submit discrimination cases involving company property to the Division of Advice. The Division of Advice reached the following determinations:

• An employer did not violate the Act by enforcing a rule that barred union officials from sending emails to company managers outside of the facility. The union used the company’s email system to send broadly distributed emails to company managers outside the facility. The Division determined that the company’s rule was lawful because it concerned how the union was permitted to use the employer’s email system and did not otherwise prohibit the union from engaging in protected communications.
• An employer’s rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity. The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no email solicitation rule.
• A rule that was re-promulgated after union organizing activities began at the employer’s site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer’s email system. Prior to sending the email, the employee checked with the employer’s IT director to determine what is considered abuse of the employer’s computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy. The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminately enforced the rule against union activity.
• An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer’s Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer’s computers in violation of its policy. The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer’s email policy allowed reasonable personal use of the employer’s computer and the employer permitted employees’ use of the internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
• An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer’s stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down, and the employer later turned the bulletin board into a management only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer’s conduct and the actions themselves were directly in response to the union activity.

These decisions make clear that, after Register-Guard, the Board will not find an employer’s use of facially valid rules lawful when the facts demonstrate that the employer discriminatorily enforced the rules to prohibit protected activity, or when the employer’s actions are motivated by anti-union animus.

On February 26, 2008, the National Labor Relations Board proposed a rule that would allow a new type of “consent” election procedure for a Board-conducted election.

The new rule would permit an employer and a labor organization to file a petition jointly for certification consenting to an election. In contrast to the other voluntary and non-voluntary election procedures, which require at least a 30 percent showing of employee interest, this proposed rule requires no showing of interest among employees.

The petition would provide the election date, place and hours; a description of the parties’ agreed-upon appropriate bargaining unit; the payroll period for voting eligibility; and the full names and addresses of employees eligible to vote in the election. The proposed election date must be within 28 days from the petition filing date. If the petition lacks any necessary information, the regional director will advise the parties and request that the petition be corrected.

Within three days of the docketing of the petition, the regional director will advise the parties of his or her approval of the petition. Absent “extraordinary circumstances,” the parties’ agreement as to date, place and time of the election will be approved. Within three days of docketing, the regional director will also send to the employer official NLRB notices to post in conspicuous places informing employees of the joint petition for certification and the date, place and time of election. The employer must also post copies of the Board’s official Notice of Election in conspicuous places at least three full working days prior to the day of the election.

Unfair labor practice charges would not block the election, but would be handled in conjunction with any post-election proceedings. All election and post-election issues would be resolved by the regional director, with no appeal to the Board.

All written comments must be received by the Board on or before March 27, 2008. Comments should be sent to the Office of the Executive Secretary, National Labor Relations Board, 1099 14th Street, NW, Room 11600, Washington, DC 20570-0001.

On January 25, 2008, President Bush submitted three nominations for open seats on the National Labor Relations Board, including Republicans Robert J. Battista and Gerard Morales, and Democrat Dennis P. Walsh.

Battista, a former NLRB chairman, completed his five-year term on December 16, 2007. Prior to being appointed to the Board, Battista was a labor and employment management-side lawyer at a law firm in Detroit. If confirmed, Battista will serve for the remainder of a five-year term expiring on December 16, 2009. The president has also designated Battista to serve as chairman upon confirmation.

Morales is currently a management-side lawyer at the law firm of Snell & Wilmer L.L.P. in Arizona. Morales previously served as a field attorney with the Board and has written several articles concerning labor law in the United States and Mexico. The president has nominated Morales to serve a five-year term expiring on December 16, 2012.

Walsh is a former Board member who served as a recess appointee under President Bush from January 17, 2006 through December 31, 2007. Prior to being temporarily appointed by President Bush, Walsh served as a recess appointee from December 30, 2000 to December 20, 2001 under former President Clinton. Walsh has an extensive history of government service. Prior to being a Board Member, Walsh served as special assistant to Board Member Wilma Liebman, and chief counsel to Board Member Margaret Browning. If confirmed, Walsh will serve for the remainder of a five-year term expiring on August 27, 2008, and an additional five-year term expiring on August 27, 2013.

Bush’s recent appointments have already garnered some negative criticism. Senator Edward M. Kennedy posted the following statement on his Web site: “It’s unbelievable that President Bush would renominate Mr. Battista to the Board, after he led the most anti-worker, anti-labor, anti-union Board in its history.” Kennedy also stated that the President’s nominations demonstrate the Administration’s “hostility to fairness and justice in the workplace.”

AFL-CIO President John Sweeney stated that President Bush’s nominations to the Board were a “blatant attempt to keep a labor board with unbalanced, anti-worker bias, and they would be poisonous to America’s working families.”

The three nominations have been sent to the Senate for confirmation. It is unclear at this point how quickly the Senate will act, especially considering that President Bush’s previous nominees, Dennis P. Walsh and Peter J. Kirsanow, were awaiting confirmation for over two years. In the same announcement, President Bush also withdrew his prior nomination of Kirsanow to the Board.

On December 27, 2007, the NLRB’s general counsel issued a Guideline Memorandum regarding the handling of unfair labor practice charges where the charging party alleges an unlawful lawsuit was filed.

In Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 748-49 (1983), the Supreme Court held that the Board may find a violation of the NLRA where a lawsuit was filed with a retaliatory purpose and the lawsuit resulted in a judgment adverse to the plaintiff, was withdrawn or otherwise shown to be without merit. In BE&K Construction Co., 536 U.S. 516, 532-37 (2002), the Supreme Court revised the Bill Johnson’s standard by finding that the Board could no longer rely upon the fact that a lawsuit was ultimately unsuccessful, but instead must determine whether the lawsuit was reasonable from the perspective of the plaintiff at the time the lawsuit was filed. In addition, the Supreme Court in BE&K rejected the Board’s policy of finding a retaliatory motive in a reasonably based lawsuit if it attacked protected conduct.

In September 2007, the Board issued its decision in BE&K on remand by the Supreme Court. See BE&K Constr. Co., 351 NLRB No. 29 (Sept. 29, 2007). The Board held that the filing and maintenance of a reasonably based lawsuit does not violate the NLRA, regardless of whether the lawsuit is ongoing or concluded, or whether it was filed with a retaliatory motive. In determining reasonableness, the Board adopted the Supreme Court’s antitrust standard, which states that a lawsuit is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” The Board further found that the NLRA only prohibits lawsuits that are “both objectively and subjectively baseless,” but it did not define “subjectively baseless.”

In his Guideline Memorandum, the general counsel described several “guiding principles” in determining whether a lawsuit is reasonably based:

• Claims that are novel and unsupported by existing precedent may nevertheless be reasonably-based if they raise a “reasonable argument for the extension of existing law” or involve an unsettled area of the law.
• The Board’s inquiry into factual or legal claims or theories is generally limited to whether they are frivolous or plainly foreclosed.
• Survival of a motion for summary judgment generally indicates that a lawsuit should be deemed reasonably-based.
• A lawsuit can be considered reasonably based even where it is dismissed on summary judgment, particularly where it involves an unsettled area of the law.

The general counsel’s Guideline Memorandum also provides direction to the Board Regions for processing of Bill Johnson’s charges. First, the region must initially investigate whether the challenged lawsuit is reasonably based. If the lawsuit is found to be reasonably based, the charge should be dismissed unless it is withdrawn first. If the lawsuit is found to be baseless, the region should then investigate the evidence that the lawsuit was brought with a retaliatory motive, including evidence that that lawsuit attacked protected conduct, is causally related to protected activity or was filed to impose the costs of litigation without regard to its outcome. After such investigation, the region must submit a reasoned analysis to the Division of Advice.

In a 3-2 decision issued on the final day of outgoing Chairman Robert Battista’s term, the NLRB determined that an employer may lawfully prohibit employees from using its email system for union business as long as the policy is not discriminatorily enforced against union-related emails. In The Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007), the Board considered the legality of an employer policy that prohibited use of company email for non-job-related solicitations. In accordance with this policy, an employee was reprimanded on two different occasions for three emails about union activities she sent to employees at their company email addresses. The general counsel provided evidence that employees were permitted to use the employer’s email system to send personal emails. The Board determined that the employer’s policy did not constitute an unfair labor practice under Section 8(a)(1) of the NLRA, and ruled that an employee has no statutory right to use an employer’s email system to further union activities.

In reaching its decision, the Board relied on past cases involving employer property rights. Although the issue of whether an employer’s email system may be used for Section 7 communications is an issue of first impression, the Board determined that an email system is similar to other employer-owned property such as bulletin boards, telephones and televisions. Thus, the Board applied the principle that applies to these other forms of property, which is that there is no statutory right to use an employer’s equipment or media as long as the restrictions an employer places on the use of its property are nondiscriminatory.

However, the Board also noted that there was not any contention that the employees here rarely or never saw each other in person or only communicated with each other by electronic means. The Board thus stated that its decision did not address circumstances in which there was no means of communication among employees at work other than email, raising the possibility that a different rule might apply under those circumstances.

Modifying its previous rulings, the Board determined that an employer’s enforcement of a policy restricting use of its email system or other property is only discriminatory if “the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.” Thus, the fact that union solicitation is barred and other non-work-related activities are permitted is not enough to establish that a restriction or its enforcement is discriminatory. It must be shown that the restriction or its enforcement results in “disparate treatment of activities or communications of a similar character because of their union status.”

On December 20, 2007, four days after the expiration of the term of Chairman Robert Battista (R), the four remaining NLRB members took steps to ensure continuous operation of the NLRB in anticipation of the expiration of two other Board members’ recess appointments on December 31, 2007. The Board temporarily delegated authority on all court litigation matters that otherwise would require Board authorization to General Counsel Ronald Meisburg. This delegation will give the general counsel full and final authority to initiate and prosecute injunction proceedings under Section 10(j), and to enforce or defend Board orders and decisions under Sections 10(e) and (f) of the National Labor Relations Act (NLRA).

The Board also temporarily delegated its decision-making authority to members Wilma Liebman (D), Peter Schaumber (R) and Peter Kirsanow (R) so that Liebman and Schaumber, as a quorum of the three-member group, will be permitted to issue decisions and orders in unfair labor practice and representation cases. The recess appointments of Kirsanow and Dennis Walsh (D) expired with the adjournment of the Senate at the end of year.

The Board acted pursuant to NLRA section 3(b), which permits it to delegate its authority to any three members and stipulates that two members of this group constitutes a quorum. The Board also relied on a March 4, 2003, opinion issued by the U.S. Department of Justice Office of Legal Counsel that concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The temporary delegations will be revoked when the Board returns to at least three members.

In a 3-2 decision, the Board recently clarified a long-held principle in backpay cases. In St. George Warehouse, 351 NLRB No. 42 (Sept. 30, 2007), the Board reaffirmed that an employer bears the ultimate burden of persuasion if it alleges that an employee failed to mitigate damages by making reasonable efforts to seek interim employment. However, the Board determined that the employer and the General Counsel shared the burden of production with regard to this issue.

An employer is required to “make whole” a wrongfully discharged employee by paying what he or she would have earned normally during the period of the employer’s discriminatory action, less earnings from other employment held during that period. Under the “willful loss of earnings” affirmative defense, an employer may limit its liability by showing that the employee failed to make reasonable efforts to seek and sustain interim employment.

Prior to this decision, an employer was required to demonstrate by a preponderance of the evidence that a former employee failed to make a good faith effort to seek employment. This burden was satisfied if the employer could produce facts sufficient to show that substantially equivalent jobs were available in the former employee’s relevant geographic area, and that the former employee failed to make reasonable efforts to apply for those available jobs.

St. George Warehouse shifts part of the burden of production to the General Counsel. The employer must still produce evidence that there were substantially equivalent jobs within the relevant geographic area, but then the burden of production shifts to the General Counsel to show that the former employee took reasonable steps to seek those available jobs. The Board reasoned that the General Counsel, as the advocate for the discriminatee, was more likely to have information concerning the former employee’s job seeking activities. In their dissenting opinion, Members Liebman and Walsh declared that the majority had departed from over 45 years of established precedent in relieving the wrongdoer-employer of its burden of production.

The National Labor Relations Board (NLRB) will face a critical shortage of Board members if Congress fails to confirm at least two presidential nominees before adjourning in December. The five-member Board, currently composed of three Republican and two Democratic members, serves staggered five-year terms. The term of current Chairman Robert Battista expires on December 16. Two other Board members, Democrat Dennis Walsh and Republican Peter Kirsanow, are presidential recess appointees who may only serve until the sine die adjournment of Congress in mid-December. Both Walsh, a former Clinton nominee renominated in April 2005 by President Bush, and Kirsanow, initially nominated by President Bush in November 2005, are awaiting Senate confirmation. The NLRB, which had 207 cases pending as of September 30, may experience significant delays in case processing if the impending Board vacancies are not filled.