By John D. Davis
The Board: Looking Ahead
Currently, the five-member National Labor Relations Board consists of only three members: two Democrats and one Republican. The two vacant seats will be filled by President Trump, giving Republicans majority control of the Board. Additionally, President Trump has appointed the Republican member of the NLRB as Acting Chairman. So, it is fair to assume we will have a Board that will be friendlier in general to employers when it comes to NLRA issues. This does not mean, however, that employers should expect immediate relief from what some would consider overreaching decisions by a Board controlled by President Obama’s appointees. Here are three areas of interest in which we think the pendulum will start to swing back toward center.
Will the Term “Protected Concerted Activity” Be Scaled Back?
Recently, the National Labor Relations Board (the Board) seems to be focusing more on violations of the National Labor Relations Act (the Act or NLRA) involving non-unionized employees. That’s right, non-union employees as well as employees represented by a union are protected by the Act. Under Section 7 of the Act, employees have a right to engage in “concerted activities for the purpose of … mutual aid or protection” or “protected concerted activity.” Protected concerted activity involves two or more employees taking action for their mutual aid or protection regarding terms and conditions of their employment. The Board’s concept of the type of conduct protected by Section 7 is broader than you might expect.
For example, an employee at a used car dealership complained to his manager about how sales commissions were being calculated. Later, the owner asked the employee to come to a meeting in the sales manager’s office. During the meeting, the employee lost his temper and began yelling at the owner calling him a “f##king mother f##ker,” a “f##king crook” and an “a##hole.” He also told the owner he was “stupid” and stood up during the meeting, pushed his chair aside and warned the owner that if he was fired, the owner would “regret it.” The employee was terminated by the owner for his conduct at the meeting. After reviewing the facts, the Board concluded that the employee’s conduct was protected by Section 7 of the Act and it was against the law for the owner to fire him.
In a similar case, an employee of a catering company became upset because he thought a supervisor had been disrespectful of his co-workers. The employee posted on Facebook that the supervisor was “a nasty mother f##ker,” a “loser,” and said “f##k his mother and his entire f##king family.” When the posting was brought to the attention of the employer, the employee was fired. The Board found that the employee’s Facebook posting was not so egregious as to lose protection under Section 7 of the Act. The Board ordered the employer to reinstate the employee and pay him full back pay.
Employers must be very careful how they deal with situations that could involve an employee engaged in protected concerted activity under the National Labor Relations Act. However, chances are we will not see the extreme examples of conduct being considered “protected” once Trump appointees start to take control of the NLRB.
Easing Back on Social Media
For many employers, social media issues proved to be a harsh introduction to the NLRA and the Board a few years ago. Under President Obama’s administration, employers were hammered over social media policies that at first (and second and third) glance seemed reasonable. Employers were also left to interpret a sometimes contradictory memo on social media policies issued by the General Counsel’s office in 2012. We anticipate a more reasonable approach to social media policies in the future that balances legitimate business concerns and employee rights under the NLRA. To be safe, employers can always adopt social media policies that have gained approval by the Board in the past, such as Walmart’s social media policy which was referenced in the General Counsel’s 2012 memo.
Examining the Joint Employment Doctrine
Another issue making headlines at the Board has been the joint employment doctrine. Under recent Board decisions, a company that may only have potential control over a group of employees (without ever exercising that control) could be found to be an “employer.” Why does this matter? It is simple — it could subject those companies to certain obligations and actual liability under the NLRA for actions taken by another company that in fact exercises control over the employees. We anticipate the pendulum swinging back to require actual exercise of control to some degree over a group of employees before “joint employment” comes into play in the NLRA context, a view that is more consistent with joint employment doctrine in other areas of the law.