For nearly 35 years, employers in pre-arbitration discovery with a union have not been required to disclose witness statements obtained during internal workplace investigations.  However, consistent with its unabashedly pro-union year-end theme of overturning longstanding precedent, the National Labor Relations Board (“NLRB” or "Board") in American Baptist Homes of the West, d/b/a Piedmont Gardens abandoned this bright-line rule in favor of a fact-specific balancing test.  The balancing test will be applied to all information requests made after December 15, 2012.

Under Section 8(a)(5) of the National Labor Relations Act (“NLRA”), an employer must furnish a union with relevant information necessary to the union’s performance of its duties, including for grievance or arbitration purposes.  Under a rule established in its 1978 Anheuser-Busch decision, the Board had consistently applied a blanket exemption from disclosure for witness statements obtained during internal investigations of employee misconduct, reasoning that such an exemption was necessary to avoid coercion and intimidation and to encourage cooperation in internal investigations.

Finding its logic “flawed,” the Board in Piedmont Gardens explicitly rejected the Anheuser-Busch rule.  In its place, the Board held that the production of witness statements should be subject to the same standard as other union information requests and that any attempts to withhold disclosure should be analyzed using the test developed by the U.S. Supreme Court in Detroit Edison Co. v. NLRB.  Under this test, where requested witness statements may contain relevant information, an employer may refuse to produce them only if it can show that a legitimate and substantial confidentiality interest outweighs the union’s need for the information.  Additionally, in order to assert a valid confidentiality defense, an employer must raise its concerns to the union in a “timely manner” and offer an accommodation regarding the information requested before refusing to disclose the statement.

Essentially, a longstanding bright-line rule has been replaced with a test that will force employers to make a case-by-case prediction of how the Board will apply a subjective balancing of interests.  This unclear standard is almost certain to extend the grievance process as parties engage in lengthy proceedings to resolve confidentiality claims.  Lone dissenting member Brian Hayes expressed these very concerns, and he also noted that the production of witness statements is inconsistent with existing guidance from the Equal Employment Opportunity Commission regarding confidentiality in connection with an investigation of an employee’s harassment complaint.

When this decision is combined with the NLRB’s Banner Health decision (previously reported here), which found that an employer’s rule requiring confidentiality during an internal investigation was an unfair labor practice, the effect is a major shift in the law that impedes an employer’s ability to conduct effective and meaningful internal investigations.  In light of these decisions, employers should reassess their current investigatory practices, including whether to continue to produce witness statements, and if so, how best to protect employees from legitimate confidentiality concerns regarding the disclosure of those statements.

The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers.  We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement.  Two days after issuing that decision, the NLRB issued a decision in Alan Ritchey, Inc., holding that an employer must bargain with a union under certain circumstances prior to imposing discretionary discipline on an employee who is represented by a union.

This new rule will apply only in the absence of a binding agreement between the employer and the union to address discipline, such as a grievance-arbitration procedure.  Therefore, as the NLRB explained, this obligation to bargain over employee discipline will typically arise only after a union is newly certified, but before the parties have agreed to a first contract.

In Alan Ritchey, Inc., after the union was certified and while negotiations were being conducted for a first contract, the employer continued to rely on its pre-existing five-step progressive disciplinary system set forth in its employee handbook to discipline several employees for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards.  Pursuant to the handbook, the employer reserved the right to exercise discretion in the enforcement of policies, and the employer admittedly exercised this discretion in setting the levels of discipline with regard to the employees in this case.  For example, when imposing discipline for failing to meet performance standards, three employees were treated leniently because of extenuating circumstances -- one employee’s husband died, another worked in a low volume area, and another was unable to work consecutive days in the same position.

The Union filed unfair labor practice charges to challenge these disciplinary actions, taking the position that it should have first been notified and given an opportunity to bargain.  The NLRB agreed.  It held that even though the employer’s existing discipline system represents the status quo that can and must be continued during bargaining for a first contract, the employer was not privileged to exercise any discretion with regard to that discipline system without negotiating with the union.  Rather, the employer was required to provide the union with notice and an opportunity to bargain each time it seeks to exercise any discretion with regard to employee discipline.  Recognizing that it had never articulated this requirement before, the NLRB opted to apply the rule only prospectively.

The NLRB set forth a few limiting principles in laying out this rule:

• First, the employer will only be required to provide the union with notice and an opportunity to bargain prior to implementing the discipline where it seeks to impose a suspension, demotion, or discharge.  For lesser forms of discipline, such as warnings and counselings, there is still a bargaining obligation, but the employer can delay providing the notice and opportunity to bargain until after the implementation of the discipline.
• Second, where there is an obligation to provide pre-implementation notice and opportunity to bargain, the employer need not bargain to agreement or impasse at this stage.  The employer need only provide sufficient notice, and provide responses to union information requests, if any.  If the parties cannot reach an agreement, the discipline can be imposed, and the bargaining obligation continues after imposition (albeit with the possibility that the discipline may have to be rescinded or altered).
• Third, no prior notice is required where “exigent circumstances” exist.  The NLRB defines this as a reasonable, good faith belief that “the employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.”  This includes situations where the employer believes the employee is engaging in unlawful conduct, is posing a significant risk of imposing legal liability on the employer, or threatens safety, health, or security inside or outside the workplace.

In its decision, the NLRB expressed its view that this new bargaining obligation will not “unduly burden” employers.  It is difficult to agree with this assessment.  This new obligation presents a significant impediment to an employer's ability to manage its workforce while bargaining for an initial contract.  Although the employer need not complete bargaining regarding the discipline before imposing the proposed discipline, the obligation to provide meaningful notice and to respond to union information requests prior to imposing the proposed discipline will certainly create significant delays in the disciplinary process.

The National Labor Relations Board ("NLRB") recently re-examined the issue of whether an employer's obligation to check off union dues from employees' wages terminates upon the expiration of a collective bargaining agreement that contains a dues checkoff provision.  This issue was seemingly resolved more than 50 years ago, in the NLRB's Bethlehem Steel decision.  However, on December 12, 2012, in its WKYC-TV, Inc. decision, the NLRB reversed its 50 year-old precedent and held that an employer's obligation to check off union dues continues after the expiration of a collective bargaining agreement that establishes such an arrangement.

In its 1962 Bethlehem Steel decision, the NLRB considered the issue of whether the employer had violated its obligation to negotiate in good faith by unilaterally refusing to honor the union security clause and the union dues checkoff provisions contained in an expired collective bargaining agreement.  Although the NLRB found that both union security and dues checkoff provisions are mandatory subjects of bargaining, the NLRB held in Bethlehem Steel that the employer did not violate the National Labor Relations Act ("NLRA") by unilaterally refusing to honor the union security clause and discontinuing union dues deductions from employees' pay checks.  The NLRB determined that the language of Section 8(a)(3) of the NLRA, which permits employers and unions to make an "agreement" to require union membership as a condition of employment, means that parties cannot enforce a union security provision after the collective bargaining agreement containing such a provision has expired.  The NLRB further reasoned that dues checkoff provisions are intended to implement union security clauses, and that an employer's obligation to continue deducting union dues from employees' pay checks ceases upon the expiration of the collective bargaining agreement.

According to the three NLRB members who comprised the majority in the WKYC-TV decision, the reasoning contained in the Bethlehem Steel decision is flawed.  The three-member majority disagreed with the premise that dues checkoff provisions are intended to implement union security clauses, and stated that "union-security and dues-checkoff arrangements can, and often do, exist independently of one another."  The three-member majority also found that employees cannot be required to authorize union dues deductions as a condition of employment even if the collective bargaining agreement contains a union security clause that requires them to be a member of the union.  Although employees generally choose to sign authorizations allowing the dues deductions as a matter of convenience, employees retain the option of transmitting their union dues directly to the union instead of consenting to automatic deductions.  The three-member majority observed that employees who sign dues checkoff authorizations are free to revoke those authorizations upon the expiration of the collective bargaining agreement if they no longer wish to continue those automatic deductions.

For these reasons, the three-member majority reversed the Bethlehem Steel decision and held that employers are required to honor dues checkoff provisions in an expired collective bargaining agreement until the parties have reached a new agreement or until a valid impasse has been reached that permits unilateral action by the employer.  This new rule will only be applied prospectively, and will not be applied to any pending cases.

Not surprisingly, Member Hayes wrote a strong dissenting opinion.  Member Hayes found no adequate justification for the NLRB to abandon more than 50 years of precedent.  Member Hayes stated that a union security clause operates as a powerful inducement for employees to authorize union dues deductions, and "it is unreasonable to think that employees generally would wish to continue having dues deducted from their pay once their employment no longer depends on it."  Member Hayes also responded to the majority's view that employees can simply revoke their authorizations, stating that "it is unlikely that employees will recall the revocation language in their authorizations, and less likely still that they will understand that their obligation to pay dues as a condition of employment terminated as a matter of law once the contract expired."  Member Hayes also recognized that an employer's ability to cease collecting union dues from employees upon the expiration of a collective bargaining agreement is "a legitimate economic weapon in bargaining for a successor agreement" and accused the three-member majority of deliberately stripping employers of this weapon to provide more leverage to unions in negotiating for successor agreements.

It is not clear at this point whether the NLRB's WKYC-TV decision will be appealed.

Earlier this year, many employers were left scratching their heads after a National Labor Relations Board Administrative Law Judge ruled, in American Red Cross Arizona Blood Services Region, that an employer’s handbook acknowledgment, requiring employees to affirm the at-will nature of their employment, violated the National Labor Relations Act.  The language that was found to be unlawful in Red Cross stated:

I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

The ALJ reasoned that this language required employees to waive their Section 7 rights to engage in protected concerted activity, because by agreeing that their at-will status could never change, they were essentially foregoing their right to make efforts or engage in conduct that could result in union representation and in a collective bargaining agreement.  This waiver, according to the ALJ, would have a chilling effect on employees’ rights, and was therefore unlawful.

The confusion and concern among employers continued, as the Board continued to file and process complaints against employers for employment-at-will policies that appeared to contain the most routine at-will language.  For example, in late February, another Board complaint challenged the following language:

I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either [the Company’s] Executive Vice-President/Chief Operating Officer or [the Company’s] President.

The complaint challenging this language was settled before the Board issued a decision, providing employers no guidance as to whether it was time to revise their handbooks.  Thankfully, the Board has now provided some further guidance, and it appears they have tempered their position.  This “treat,” issued on Halloween, came in the form of two Advice Memoranda (Case 32-CA-086799 and Case 28-CA-084365) issued by the Board’s Division of Advice taking the position that language similar to that above is lawful.  For example, the following language was found acceptable:

No manager, supervisor, or employee of [the Company] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the Company has the authority to make any such agreement and then only in writing.

The memorandum explains that this language is lawful because it is not as absolute as the language in the Red Cross case.  It explicitly permits the president to enter into written employment agreements, thus providing for the possibility of potential modification of the at-will relationship through a collective bargaining agreement.  Additionally, the language is not written in a way that requires employees to waive their rights.

For now, employers should consider reviewing the at-will language in their employee handbooks.  Language that simply describes the at-will status of employees, and states that it can only be altered in writing by an executive should not cause concern for now.  However, if the at-will language is written in more absolute terms, providing that the at-will relationship can never be changed under any circumstances, it may be time to revise that policy.  However, as warned by the Board’s General Counsel at the close of both Advice Memoranda, “the law in this area remains unsettled.”  We will continue to provide updates on this blog as this issue develops.

On October 23, 2012, the National Labor Relations Board held, in a 2-1 decision, that an employer has an obligation under the National Labor Relations Act to respond in a timely manner to a union information request, even if the requested information is ultimately found to be irrelevant to the union's performance of its duties as the employees' collective bargaining representative.

In IronTiger Logistics, Inc., the employer was a unionized trucking company that shared common ownership with another non-union trucking company called TruckMovers.com, Inc.  The union representing IronTiger's employees made a written request to IronTiger that principally sought information regarding the non-union truck drivers employed by TruckMovers.  The information request also sought some information relating to bargaining unit employees, such as the names of the truck drivers for each unit, their destination and mileage, and communications from customers about those units.

IronTiger did not respond to the union's information request until approximately four and a half months later -- after the union had filed an unfair labor practice charge over IronTiger's failure to provide a response to the information request.  In its response, IronTiger did not provide any of the requested information, but instead stated its belief that all of the requested information was irrelevant.

The Administrative Law Judge who presided over the unfair labor practice hearing agreed with IronTiger that the information requested by the union was irrelevant to the union's performance of its duties as the employees' collective bargaining representative.  In addition, there was no dispute regarding the adequacy of IronTiger's response explaining why the requested information was irrelevant.  However, the ALJ nevertheless held that IronTiger's failure to respond in some manner to the irrelevant information request for approximately four and a half months constituted a refusal to bargain in good faith in violation of Section 8(a)(5) of the Act.

The two-member majority of the Board agreed with the ALJ's analysis, and held that employers have an obligation under the Act to respond within a reasonable time to union information requests, regardless of whether those requests are deemed to be irrelevant.  Member Hayes wrote a dissenting opinion, in which he reasoned:  "Ultimately, requested information is either legally relevant to a union's representative duties, or it is not.  If it is not relevant, then the statutory duty to bargain in good faith is not implicated by the request or the employer's failure to respond timely to the request."

Based on the Board's IronTiger decision, employers should make sure to respond within a reasonable time in some manner to all information requests made by a union representing their employees, even if the response is just a brief explanation of the employer's position that the requested information is irrelevant.  If an employer believes that a union information request is overly broad or unduly burdensome, the employer should make a good faith effort to work with the union to narrow the scope of the request.

On September 28, 2012, the National Labor Relations Board handed down its first decision regarding whether an employee’s termination in connection with his postings on Facebook was unlawful.  In its decision, however, the Board dodged the more thorny aspect of the case, which was whether other Facebook postings of the employee that were openly critical of the employer were protected under the Act.

The Board concluded that the employee, a salesman at a BMW dealership, was terminated for posting pictures on Facebook of an unfortunate incident at an adjoining Land Rover dealership, which was also owned by the same employer.  The incident depicted in the employee’s photos was of a Land Rover that had been driven into a pond by a customer’s teenage son and included the caption:  “This is your car.  This is your car on drugs.”  He also wrote on his Facebook page:

This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything.  The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck.  OOOPS!

The Board, affirming the ALJ, concluded that there was nothing protected or concerted about these posts by the employee because they did not concern any terms or conditions of employment and they were posted solely by the employee, apparently as a “lark.”

The Board did not consider whether more controversial postings by the employee on his Facebook page were protected, concerted activity under the Act.  Those postings were critical of the employer’s “Ultimate Driving Event” at the BMW dealership.  Specifically, the employee criticized the low budget food and drink offerings provided to customers -- the 8 oz. bag of chips, the $2.00 cookie plate from Sam’s Club and the hot dog cart where a customer “could attain a over cooked wiener and a stale bunn [sic],” among other criticisms.  Because the Board agreed with the ALJ that the employee had been fired exclusively for the Land Rover postings, which were clearly unprotected, the Board found it unnecessary to determine whether the employee’s other postings were protected.

However, two members of the Board (with Member Hayes dissenting) concluded that the following policy of the employer was unlawful:

Courtesy:  Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

Specifically, the Board found the broad prohibitions of the rule on “disrespectful” conduct and use of “language which injures the image or reputation of the Dealership” implicated protected Section 7 activities, including complaining about working conditions and seeking the support of others in improving them.  The Board noted that there was nothing else in the rule -- or the employee handbook generally -- to suggest that conduct protected by Section 7 of the Act is excluded from the Courtesy rule.  The two-member majority rejected the argument advanced by dissenting member Hayes that the words contained in the rule must not be read “in isolation,” and that the first two sentences inform employees that the rule is intended simply to promote civility in the workplace.

On September 7, the National Labor Relations Board (“Board”) issued its first decision on the lawfulness of an employer’s social media policy under the National Labor Relations Act (“NLRA”).  We have previously reported on three non-binding reports issued by the Board’s Acting General Counsel (“GC”) since August 2011, outlining his views of impermissibly restrictive social media rules.  In Costco Wholesale Corp., the Board has indicated that it may take an approach similar to the GC in scrutinizing employer efforts to control employees’ online speech.

The Costco policy prohibited employees from electronically posting communications that “damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.”  Reversing the administrative law judge’s ruling, a three-member Board panel held that this rule was overly broad in violation of Section 8(a)(1) of the NLRA.  In reaching this conclusion, the Board found that the wording of the policy “clearly encompasse[d] concerted communications” protesting Costco’s treatment of its employees.  The Board further found that in the absence of any accompanying language that “even arguably suggests that protected communications are excluded from the broad parameters of the rule,” employees would reasonably assume the policy prohibited them from engaging in communications critical of Costco or its agents.  Costco was ordered to rescind the policy insofar as it prohibited employees from making on-line statements damaging to the company’s or any person’s reputation.

Costco’s policy also provided that “sensitive information such as . . . payroll . . . information may not be shared, transmitted or stored for personal or public use without prior management approval.”  The provision was deemed unlawful, because the Board determined that employees would reasonably conclude that it prohibited them from discussing their wages and other terms and conditions of employment.  Costco’s argument that the rule should be read to prohibit only the sharing of the “confidential business component of payroll, such as budgeted payroll and expenses and the like” was rejected.  Although the rule also prohibited disclosure of items unrelated to terms and conditions of employment, such as social security and credit card numbers, when read in the context of the entire document, the Board believed that term “payroll information” would reasonably be construed by employees to prohibit protected activity under Section 7 of the NLRA, such as discussing their compensation.

However, that portion of the Costco policy that required employees to use “appropriate business decorum” in communications with others was found to be lawful.  The administrative law judge (affirmed by the Board) agreed that an employer may lawfully establish rules providing for a civil workplace.  The GC’s contention, that the rule could be interpreted by employees as restricting Section 7 activities, was rejected.  Rather, the Board held that the applicable legal standard is whether the rule in question would be construed by employees to restrict Section 7 activity.

Additional cases involving social media issues are likely to be decided by the Board over the next several months.  Until further decisions and guidance are issued, employers should consult with legal counsel in crafting their policies.  Employers would also be well-advised to avoid broad, vague restrictions (e.g., “non-disparagement”) and restrictions that plainly impinge on protected speech (e.g, “no discussion of wages”).  Employers should also include specific examples of prohibited conduct and a “savings clause” or other disclaimer language making clear that the policy is not intended to restrict Section 7 rights.

On July 30, 2012, the National Labor Relations Board (“Board”), in a 2 to 1 decision, held that a hospital violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending.  Section 8(a)(1) of the NLRA forbids employers from interfering with the exercise of an employee's Section 7 rights, such as the right to organize, form, join, or assist a labor union, to bargain collectively, or to engage in other concerted activities for mutual aid or protection.

In Banner Health System, the hospital’s human resources consultant routinely asked employees who made a complaint not to discuss the matter with co-workers while the investigation was ongoing.  It is common for employers to make this type of request to ensure confidentiality and to protect the integrity of their investigation.  What is troubling about this case is that the Board found that an employer’s legitimate interest in protecting the integrity of its investigation is generally insufficient to outweigh an employee’s Section 7 right to discuss workplace concerns with co-workers.  The Board held that before an employer prohibits an employee from discussing an ongoing investigation, the employer must make an individualized assessment and be able to demonstrate that it has a legitimate business reason that outweighs the particular employee’s Section 7 rights.  In undertaking this analysis, the employer must consider whether:  (1) there are witnesses in need of protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up.  An employer’s blanket rule prohibiting employees from discussing ongoing investigations without considering these factors would not meet this requirement.

In light of this recent decision by the Board, employers should be cautious about their communications to employees during the course of a workplace investigation.  In particular, it would be prudent for employers to make an individualized assessment in each case before deciding whether to ask an employee not discuss a matter with co-workers.  In undertaking this analysis, it would be wise to consider the four factors identified by the Board.  If, after considering these factors or any other compelling factors, an employer ultimately decides to ask an employee not to discuss matters under investigation, the employer should document its rationale for making the decision in the event that the decision is later challenged.  In addition, rather than “prohibiting” or “requiring” an employee to maintain confidentiality, it may be wise to express that it is the employer’s “preference” that an employee not discuss the matter with co-workers while the investigation is pending.

On June 8, 2012, the U.S. Court of Appeals for the D.C. Circuit refused to enforce a decision and order of the National Labor Relations Board ("Board") on the ground that the Board had "departed, without giving a reasoned justification, from its precedent . . . ."  Prior to the Board's 2010 decision and order in E.I. Du Pont de Nemours v. NLRB, Board law had, for almost a decade, allowed an employer to make certain unilateral changes in terms and conditions of employment, both during the term of a collective bargaining agreement and after expiration of a collective bargaining agreement, provided that the changes are consistent with an established past practice.  However, in its 2010 Du Pont decision, the Board held that Du Pont's unilateral changes to its health plan constituted unfair labor practices in violation of the National Labor Relations Act ("Act"), despite the undisputed existence of a past practice permitting such changes.  The D.C. Circuit Court of Appeals rejected the Board's change of direction on this subject.

In the Du Pont case, the Board acknowledged that Du Pont had annually and consistently revised the terms of its health plan -- which applied both to union and non-union employees -- each year during an annual enrollment period, under the terms of the plan.  These changes typically included revised coverage terms, changed options, and increased premiums.  The management rights clause in the collective bargaining agreement with the union also encapsulated the employer's right to make these changes.

When Du Pont continued this annual practice of revising its health plan in 2004 following expiration of the collective bargaining agreement, the union filed an unfair labor practice charge, and the Board found that Du Pont had violated Sections 8(a)(5) and 8(a)(1) of the Act by making impermissible unilateral changes in the terms and conditions of employment.  The Board distinguished the employer's past practice of similar annual revisions to the health plan, noting that those prior occasions had occurred during the term of the collective bargaining agreement, not after the expiration of the collective bargaining agreement.  The Board also held that Du Pont could not rely on the expired management rights clause to justify the post-expiration unilateral changes.

In rejecting the Board's holding, the D.C. Circuit Court of Appeals observed that, under the Board's existing precedent, the undisputed existence of a past practice permitting similar changes served to immunize those changes from scrutiny under the Act, regardless of whether the changes were made during the term of a collective bargaining agreement or after the expiration of a collective bargaining agreement.  The Court also noted that this immunity did not turn on the existence of a management rights clause in an unexpired collective bargaining agreement.  The Court stated:

Under the Board's precedent, therefore, Du Pont's making annual changes to [its health plan] became a term and condition of employment the Company could lawfully continue during the annual enrollment period, irrespective of whether negotiations for successor contracts were then on-going.

The Court's refusal to enforce the Board's Du Pont decision signals some judicial impatience with the Board's deviation from existing precedent without providing a well-reasoned justification for the sudden change in policy.

On May 30, the NLRB's Acting General Counsel ("GC") issued a third report on social media cases.  We have addressed the NLRB's treatment of social media cases in several prior blog posts, including a summary of the GC's second report on social media cases.  The focus of this third report is social media policies, and for the first time, the GC has provided the full text of a social media policy that was determined to be lawful under the National Labor Relations Act ("NLRA").  In addition, the report addresses six other cases in which the GC concluded that at least some of the provisions of employers' social media policies were overly broad and unlawful under the NLRA.  The following summary touches on just a few of the highlights contained in the GC's 24-page report.

A number of the provisions of social media policies that were found to be unlawful were restrictions on communicating confidential information.  Where a social media policy simply prohibits the disclosure of confidential information, the GC has determined that such a prohibition is overly broad because it could reasonably be interpreted to prohibit employees from discussing and disclosing information regarding their own and their co-workers' conditions of employment.  For example, the GC indicated in the report that the following provisions were found to be unlawful:

• "Don't release confidential guest, team member or company information. . . ."
• "Make sure someone needs to know.  You should never share confidential information with another team member unless they have the need to know the information to do their job.  If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so.  If you are unsure, talk to your supervisor."
• "Watch what you say.  Don't have conversations regarding confidential information in the Breakroom or in any other open area.  Never discuss confidential information at home or in public areas."
• "Employees are prohibited from posting information regarding [Employer] on any social networking sites . . . that could be deemed material non-public information or any information that is considered confidential or proprietary.  Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules."

The GC also found unlawful a provision of a social medial policy prohibiting "offensive, demeaning, abusive or inappropriate remarks" in social media communications.  According to the GC, this provision "proscribes a broad spectrum of communications that would include protected criticisms of the Employer's labor policies or treatment of employees."  Similarly, the GC found that provisions of an employer's social media policy that cautioned employees not to "pick fights" and to avoid "topics  that may be considered objectionable or inflammatory" when communicating on social media sites were unlawful.  The GC reasoned that discussions about working conditions or unionism have the potential to become heated or controversial, and that "without further clarification of what is 'objectionable or inflammatory,' employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism."

The GC also addressed provisions regarding the "friending" of other employees on social media sites.  In general, the GC has found such provisions to be unlawful because they may be interpreted to restrict concerted activity.  For example, the GC concluded that the following provision was overly broad because it could potentially discourage employees from engaging in discussions and communications with their co-workers:

• "Think carefully about 'friending' co-workers . . . on external social media sites.  Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace."

Provisions restricting the use of company logos or trademarks in an employee's social media posts were also generally found by the GC to be unlawful.  According to the GC, such provisions are overly broad because an employee could reasonably interpret them to prohibit the use of photos or videos of employees engaging in union activities such as holding picket signs with the employer's logo or trademark.

In the report, the GC also addressed again an employer's use of a "savings clause" in a social media policy (which essentially provides that the policy should not be interpreted or applied in a way that would interfere with an employee's rights under the NLRA).  As in previous reports, the GC reiterated that such clauses do not cure other provisions of the policy that are found to be unlawful.

In general, the GC advises employers to include limiting language and definitions in social media policies in order to give context to provisions that might otherwise be overly broad.  For example, instead of simply prohibiting the disclosure of confidential information, an employer should define what is deemed to be confidential information to ensure that an employee could not reasonably interpret the prohibition to apply to information about the employee's terms and conditions or employment.  The GC also suggests that an employer's social media policy should contain specific examples of activities that would be prohibited by the policy.

As a result of this report and the GC's prior reports on social media cases, it is now extremely difficult for employers to create a lawful and meaningful social media policy that adequately protects its own interests with minimal risk that the policy will be found to violate employee rights under the NLRA.  Employers who wish to create a new social media policy or wish to revise their existing policy would be well-advised to consult with their legal counsel.

On May 14, 2012, a federal district court judge invalidated new regulations intended to streamline union representation elections, finding that the National Labor Relations Board lacked a proper three-member quorum when it voted on the controversial final rule in December of 2011.  The final rule, which has commonly been referred to as the "ambush" or ""quickie" election rule, went into effect on April 30, 2012.  The same federal district court judge had previously denied a request for a stay of the final rule, stating that he intended to issue a decision on the merits of the case by May 15.

Judge James Boasberg of the U.S. District Court for the District of Columbia found that the required three members necessary to establish a quorum were not present when the rule was adopted on December 16, 2011 because Member Hayes failed to participate in the final vote.  Hayes had previously voted against initiating the rulemaking process and against proceeding with the final rule.  Because of this prior opposition, the two other members issued the final rule without Member Hayes' participation.

Judge Boasberg rejected the Board's argument that Member Hayes had "effectively indicated his opposition" and that his participation in the final vote was not necessary.  In rejecting this argument, Judge Boasberg cited to an unlikely source:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters -- even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid.

 Judge Boasberg further reasoned that Member Hayes could not be counted toward a quorum particularly because no one on the Board reached out to him to ask for a response, as is the agency's usual practice where a member has failed to vote.  Judge Boasberg stated that if Hayes had affirmatively expressed his intent to abstain or acknowledged receiving notification that the final rule had been circulated, he may have been counted in the quorum; however, because none of those things happened, Judge Boasberg found that Member Hayes failed to "show up -- in any literal or even metaphoric sense."  Because the Board failed to meet the quorum requirement, Judge Boasberg refused to address the plaintiffs' challenge to the final rule on various procedural and substantive grounds.

It remains to be seen whether the newly constituted Board -- complete with three controversial and challenged recess appointees -- will be assembled to take final action on the "quickie" election rule.  In his decision, Judge Boasberg noted that nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if the Board desires to do so.  In addition, an appeal of Judge Boasberg's decision is likely.  If a new vote on the rule is held, it is likely that the rule will once again be challenged.

The Board has announced that, at least for now, all union representation elections based on petitions filed on or after April 30, 2012 will proceed under the old rules.

The U.S. Court of Appeals for the D.C. Circuit issued an Order today granting an injunction precluding the National Labor Relations Board from implementing its notice posting rule, pending appeal of a lower court decision upholding the validity of the rule.  The notice posting rule was scheduled to go into effect on April 30, 2012, but employers will not be required to comply with the rule until the D.C. Circuit Court of Appeals has had the opportunity to determine whether the NLRB exceeded its authority under the National Labor Relations Act by issuing the rule.

In its Order granting the injunction, the D.C. Circuit Court of Appeals noted that the NLRB voluntarily postponed implementation of the notice posting rule during the pendency of the proceedings before the U.S. District Court for the District of Columbia, which seemed to undercut the NLRB's argument that the rule should take effect during the pendency of the appeal.  The D.C. Circuit Court of Appeals also noted that the NLRB indicated an intent to cross-appeal the portion of the District Court's decision that invalidated certain enforcement provisions of the rule, which created some uncertainty regarding the manner in which the rule will be enforced.

Prior to the issuance of this injunction, U.S. District Courts in two separate jurisdictions had issued conflicting decisions regarding the validity of the notice posting rule.  The U.S. District Court for the District of Columbia held in March that the NLRB had the authority to require employers to post the notice, but did not have the authority to issue a blanket rule that failure to post the required notice will be considered an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges in situations where an employer fails to post the required notice.  However, the U.S. District Court for the District of South Carolina held on April 13, 2012 that the NLRB did not even have the authority to require employers to post the notice.  In its Order granting the injunction, the D.C. Circuit Court of Appeals cited the recent U.S. District Court for the District of South Carolina decision.

According to the D.C. Circuit Court of Appeals Order, briefing of the appeal is expected to be completed by June 29, 2012, and oral argument is expected to be scheduled in September 2012.