The National Labor Relations Board (NLRB) recently released information regarding its activities during Fiscal Year 2012. The NLRB issued 341 decisions in contested cases for the year, including 277 in unfair labor practice cases and 64 in representation cases. The Board’s activities also included new rules involving several controversial areas. Most notably, the Board finalized the so-called Speedy Election rule, which is currently suspended due to pending court challenges.
The Board’s decisions varied greatly by subject matter from mandatory arbitration provisions to social media activity. In D.R. Horton, the Board invalidated arbitration agreements prohibiting employees from joining together in any forum to pursue claims against the employer. The Board also issued its first social media case, finding the particular Facebook posts not protected in that case. This is likely to be an area of growth for the Board in 2013 and one employers should review regularly. Additionally, the NLRB applied the Specialty Healthcare standards for unit determination in several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.
These decisions, as well as rule making by the Board, are likely to undergo additional challenge due to the composition of the Board. In January, three new members (Griffin, Block, and Flynn), were appointed as recess appointments by President Obama. These appointments have been challenged on the basis of whether the appointments were, in fact, during a valid recess.
Both organized and non-union employers must ensure compliance with the applicable provisions of the National Labor Relations Act (NLRA). Many non-union employers mistakenly believe they are immune from NLRA provisions. Additionally, many employers fail to appreciate they may be susceptible to an organizing campaign. It is important for all employers to consult with their labor counsel to ensure compliance.
By: Justin A. Morocco