NLRB Issues Wide-Ranging Summer Decisions

Guidance implicates employers’ policies that include public spaces and social media use

Labor standard revisions — many of them favorable to employers — continue to trickle out of the National Labor Relations Board under the Trump administration. With board decisions and memos dealing with matters from social media use to union elections, the NLRB has issued new guidance in recent months with bigger changes in the months to come.

Public Spaces

On June 14, the board gave employers the ability to ban union representatives from public spaces they own. In University of Pittsburgh Medical Center Presbyterian Shadyside, the board voted 3-1 to undo the “public space” exception that required employers to let union organizers use their property that’s open to the public, like cafeterias or restaurants, provided the organizers aren’t being disruptive. 

Mark Nelson, shareholder and vice chair of Polsinelli’s traditional labor relations practice in Denver, does a lot of work for health care institutions where the public space access issue tends to emerge. “It’s an issue I’ve dealt with often with clients who are either trying to get their policies in order” or are in the midst of a union election campaign, Nelson said.

The common scenario is that union reps will go into the cafeteria wearing union apparel, get a meal, and sit down and talk to hospital employees to persuade them to support the union, Nelson said.

Employers can now determine what activities or access they will allow non-employees to have on their private property as long as employers don’t discriminate between certain non-employees, including union reps. The new rule, which reverses 37 years of NLRB precedent, had employers reviewing their public space policies to assert that control without running afoul of the National Labor Relations Act, Nelson said. “I’ve been doing that for a number of clients of late for that very reason.”

Majority Support Rules

More recently, the NLRB handed down a decision that makes it easier for an employer to break off negotiations with a union when it can show the union lost majority support among its employees.

In Johnson Controls, decided July 3, the board set up a new process to follow when the employer receives evidence, often through a petition, that a majority of its employees no longer favor the union and the collective bargaining agreement is near its expiration date. Within 90 days of the CBA expiration, the employer can then announce it will no longer recognize the union once the contract expires and pull out of future CBA talks in what’s called an “anticipatory withdrawal.”

Under the previous framework, the union would then file an unfair labor charge against the employer and produce evidence that it does enjoy majority support. When the counts were close, the NLRB would often favor the evidence that came “last in time” — almost always the union — in what was a “convoluted and messy” set of rules, Nelson said.

The National Labor Relations Board has recently handed down impactful decisions that implicate employers public space policies among others. / LAW WEEK FILE

Now the union’s recourse, under Johnson Controls, is to petition for another secret ballot election and within 45 days of the CBA expiration. Nelson said this process provides more certainty and “makes a heck of a lot more sense.”

“This board seems more cognizant of the rights of employees to choose to discontinue having a union represent them,” Nelson said.

Social Media Use

Employers got more guidance on another NLRA issue they’ve been closely watching — social media use by employees — in a memo by the NLRB General Counsel’s Office. In an advice memorandum issued in August, but released June 14, NLRB Associate General Counsel Jayme Sophir clarified that employers can’t ban employees from criticizing the organization on social media, but they can still ban them from accessing those sites with company-owned devices.

The memo concerned a case in which the company, Coastal Shower Doors, allegedly maintained overbroad prohibitions in its employee handbook. 

These included a ban on employees using cell phones during work hours and accessing social media sites on company electronics, as well as a ban on employees posting “derogatory information” about the company online. The General Counsel’s Office concluded that the cell phone ban was unlawful but the social media policy was only partially so.

Employees who may access the employer’s email system during working time can also access it for protected activity in nonworking hours under the NLRB’s precedent in Purple Communications, according to the memo. But Purple Communications didn’t extend those protections to social media use, the memo said, so Coastal Doors’ social media ban wasn’t unlawful. 

As for the company’s non-disparagement clause, the General Counsel’s Office said that was unlawfully overbroad because “concerted criticism of an employer’s employment and compensation practices is central to rights guaranteed by the NLRA.”

Nelson said social media and device use under NLRB rules continues to be a watchpoint for many employers. 

Rulemaking on the Horizon

The NLRB’s juggernaut joint employer rule is still in the offing, having received almost 29,000 public comments. 

While the agency hasn’t yet determined when that rule will be finalized, it has signaled it will be making rules in other labor areas, such as the employment status of graduate students and “blocking charges” in union elections.

Under the current blocking charge policy, the NLRB may freeze a pending union election if there’s an outstanding unfair labor practice charge against the employer that, if true, could interfere with workers’ free choice in the election. 

Either party can point to a blocking charge to stall a union election while the charge is being adjudicated, but a union might file a charge to buy time before an election that seeks to oust it. 

“It can be an effective tool to slow down or prevent the election from happening,” Nelson said.

The board is looking to revise the blocking charge policy, possibly to allow avenues where the election may proceed even while an unfair labor practice charge is pending. 

— Doug Chartier

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