5 Ways the NLRB is Redefining Rules Between Employers & Employees

For your reference: here are five ways in which recent National Labor Relations Board rulings continue to reshape the relationship between employers and employees (and how we do business in general). This post follows our update on recent NLRB social media rulings and includes a number of other related law firm updates below:

1. Unions May In Fact Use Company Email for Unionizing

“On July 26, 2011 the NLRB unanimously found that union representatives may have a right to correspond with employees on their corporately purchased email accounts to solicit union activity.” [From NLRB Grants Use of Company Email for Union Purposes by Dinsmore & Shohl LLP]

2. Non-Union Employees May Complain About Work Issues on Television

Within reason, that is: “The National Labor Relations Board (‘NLRB’) ruled last month that an employer’s termination of non-unionized employees who had appeared on a television newscast wearing their uniforms while making disparaging statements about the employer violated the National Labor Relations Act (‘NLRA’). [From Fenwick Employment Brief – August 16, 2011 by Fenwick & West LLP]

3. It’s Cool, Bring in the Giant Inflatable Rats

AKA it appears to be a banner year for banners:

“Employers and their attorneys … have argued successfully that these inflatable rats constitute “signal” pickets which are subject to the same secondary boycott rules as live pickets. The advantage of such a position is that the inflatable rats therefore have to conform to secondary boycott rules, including a requirement that they be placed in front of or near gates reserved for the picketed company, as well as a requirement that they can only appear when the picketed company is present at the jobsite. All this was recently changed by the Board…” [From NLRB Rules Inflatable Rats May No Longer Constitute Signal Pickets by Williams Kastner]

“Since September 2010, the Board has decided in several cases that “bannering,” a union practice of displaying a large banner outside of a secondary employer’s location, does not violate this secondary activity prohibition in the NLRA. This past spring, the Board extended its reasoning to cover other types of bannering as well, such as the display of large inflatable rats or similar balloons. This month, a majority of the Board again reaffirmed the broad, although not unlimited, protection for bannering under the NLRA and First Amendment.” [From Recent NLRB Decision Reinforces that Most “Bannering” Does Not Violate the NLRA by Franczek Radelet P.C.]

4. All Employees Have Rights – Post ‘Em!

“Under a new rule just finalized by the National Labor Relations Board (Board), most private-sector employers must now notify employees of their rights under the National Labor Relations Act by posting a notice. This ruling applies to both unionized and non-unionized businesses, and exempts only a few small groups, such as the USPS. Failure to post this notice—in the physical facilities and, in some instances, on the company’s website—will constitute an unfair labor practice violation and subject the employer to penalties imposed by the Board…” [From New NLRB Rule Targets Private Sector Employers by Siegel O’Connor]

5. Factory Unionized? Think Veeery Carefully Before You Open Your Non-Unionized Factory 

“Simply put, it is because the South Carolina workers chose to decertify the IAM that the NLRB now seeks to prohibit them from continuing to build 787 aircraft. Had they kept their union cards, the government would allow them to earn a living.” [From NLRB in Battle Against S.C. Boeing Workers by Dinsmore & Shohl LLP]

“At this time, the Boeing Case could and most likely will, continue into the foreseeable future. Given the current high national unemployment rate and the future of a billion dollar factory at stake, this case is seen by some as an attack on job creation by the current administration.” [From Client Alert on NLRB Complaint against Boeing Company for Unlawfully Transferring Work to a Non-Union Facility by John R. LaBar]


Additional NLRB legal analysis & commentary recently published on JD Supra:

“In 2010, organized labor condemned the bipartisan vote in the United States Senate that killed the Employee Free Choice Act. … Where the current administration has failed to persuade Congress to adopt its legislative agenda, time and again, it has waived its regulatory wand and enacted the failed ‘legislation’ as ‘regulation.’ Magically, it becomes the law of the land.” [From Employee Free Choice Act Becoming Law by Dinsmore & Shohl LLP]

“But of all the federal agencies, the National Labor Relations Board (NLRB or Board) has probably done more lately than any other to raise its public profile and attempt to reshape the law.” [From Obama NLRB: Boldly Going Where No Board Has Gone Before by Warner Norcross & Judd]

“These comments are submitted on behalf of the Coalition for a Democratic Workplace (“CDW” or the “Coalition”). CDW encompasses hundreds of employer associations, individual employers and other organizations that collectively represent millions of businesses of all sizes. They employ tens of millions of individuals working in every industry and every region of the United States. These employers and employees have a profound interest in the Board’s Proposed Rule, which the Coalition believes is contrary to many provisions, policies and purposes of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (“NLRA” or “Act”) and inconsistent with the free speech protection afforded by the United States Constitution…” [From Comments on NLRB’s Proposed Rule Regarding Union Elections (RIN 3124-AA08) by Morgan Lewis]

Also see our recent reading list: Social Media and the Law – Employee Dos and Don’ts from the NLRB.


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