Why Everyone in HR Needs to Know About "Protected Concerted Activity"

There are many HR people who are unfamiliar with labor law, especially here in the Southeast. But recent events dealing with the National Labor Relations Board (NLRB) make it clear that everyone in HR, and management for that matter, needs to know something about it. The Democrat controlled (read Labor controlled) NLRB is in a made rush toward the end of the year to make as many decisions as possible why Craig Becker is still in place. (His recess appointment on the board ends with the new Congress).

One broadly ballyhooed activity of the NLRB was its investigation regarding Facebook postings as a "protected concerted activity." But more about that in a minute. First, to understand their statements you must know what "protected concerted activity" is and how it impacts a company. Directly from the NLRB website comes this definition.

The National Labor Relations Act (NLRA) protects employees’ rights to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits. Some examples of such activities include:

a) 2 or more employees addressing their employer about improving their working conditions and pay;
b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other.

The NLRA also protects any individual employee’s right to engage in union support, membership, and activities.
The NLRA protects an individual employee’s right not to engage in union activities or in other protected, concerted activities.

You will notice the sections I highlighted. "Protected concerted activity" is not restricted to companies which are already populated with unions. In fact, employers violating these rights often prompt employees to seek union support. This law is also why it is illegal for companies to have policies that forbid employees from discussing their pay with other employees. Such a policy can be construed as prohibiting employees from discussing pay or other work-related issues with each other, a direct violation of the NLRA.

Now back to the Facebook blowup. This deals with the actions of a Connecticut company in dealing with a worker in a disciplinary situation. She was already a union member and in this disciplinary situation, or at least one she perceived as disciplinary, she requested union representation. She was denied that representation (probably not a good thing because of the Weingarten rule.) Later that day she went home, and from her home computer, posted disparaging remarks about the supervisor on her Facebook page. Other employees, who were Facebook "friends", added to the remarks and supported her on her page. Two weeks later she was fired for violating the company's Blogging policy. A complaint was filled and the NLRB investigated. The result of their investigation was stated as:

"the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."

As blogger/attorney Daniel Schwartz, at Connecticut Employment Law Blog states, "Employers are increasingly looking at and monitoring social media usage. The NLRB's complaint makes it clear that it intends to challenge employers who over-reach." He indicates that a hearing for the case is scheduled on January 25, 2011.

So what is the upshot of this? First you need to make sure your policy is not one of those overreaching policies. As one union blog stated "This is a big step forward for workers, who don’t necessarily have to fear being fired for discussing their work on Facebook with coworkers on their own time. But the key phrase here is “with coworkers” – there may be a danger of an employer taking disciplinary action if an employee takes to Facebook about their work, but doesn’t involve coworkers in the discussion." You need to make sure your policy does not step on an employee's right to engage in protected concerted activity.

Secondly, be very careful before taking action against an employee for Facebook, or any other social media site, activity. Make sure you understand the players and the issues involved. INVESTIGATE before you REACT.

Third, train your supervisors and and managers on this. 

As a last note, I did read that the supervisor was still free to sue the employee for defamation of character. We will see.

These Will Make You Go "Hmm": Great HR Posts

There is a ton of stuff in the blogsphere to read. There is NO way you can keep up on it all and get your job done. So that is why I try to help and pass on to you some great things I read. Here is a list of posts that will make you think. And who knows you may learn something in the process.

• First up is The Employee With The Achilles Heel written by Kimberly D. Urban at her blog site Kim's HR Potpourri. This post is one that all of us can identify with. My story was similar to hers. Great employee who could not make it to work.
• Next up is What If We Kill Incentives? Laura Schroeder, writing at the Compensation Cafe, discusses what has to be in place if we take away monetary incentives. Her real-life example comes from time spent in Russia.
• Some of you have probably seen the NLRB activity on employee Facebook activity. I have even considered writing on it myself. I may no after having seen Jon Hyman's post WIRTW #152. It is his usual collection of excellent articles, but the first group focuses on Facebook Firing. So if  you want to be caught up on this controversy read this series. It DOES HAVE AN IMPACT ON YOU! Ignore it to your own peril.
• Another selection from the Compensation Cafe is on The Importance of "Why" written by Derek Irvine. Derek talks about the importance of meaning and purpose on the job.
• Lastly, there is the entire series of posts offering strategic advice to SHRM and how things can be improved for the association and the profession. This is found at Voice of HR. My reaction to most of these posts has been "Damn, I wish I had written that!" (I did write a post as well, though it has not yet been published. But it will pale in comparison to most of these.)

So there is your list of thought provoking, stimulating stuff to read today or this weekend. I will defy you to tell me these did not make you go "HMMM".

The Clock Is Ticking: NLRB Speeds On Decisions

A newsletter I received today from the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., was entitled NLRB Issues Numerous Controversial Anti-Business Decisions. The newsletter detailed a number of decisions that the current board has quickly made. According to the authors "In one day, August 27, the current NLRB majority, consisting of Chairman Wilma Liebman and Board Members Mark Pearce and Craig Becker, issued over 30 major decisions..."


The newsletter further states "...there are many that, under questionable and closely contested facts, expand interpretations of 'protected concerted activity.' The result is a clear pattern where the Board exercises increased scrutiny of employer conduct when a union loses a representation election."

One of the reasons they are rushing through these decisions is that Craig Becker, former Chief Counsel for the SEIU, is a recess appointment. You can read more on him here An Union Update: Craig Becker and the NLRB. But what that means is that they are rushing through as many decisions as possible before his term is up at the end of the year. They know he will not be in that position come January, and will have not chance of getting reappointed, since he could not get confirmed by the Senate this year. With the changes likely to happen in the mid-term election his chances will become "slim to none" with the emphasis on the "none."

So in the meantime they are cranking out as many "union friendly" decisions as possible. Well here, let me make it easy and offer them this form they can use.

This will make their job just a bit easier.

NLRB Is Set to Rule in Favor of Unions Not Employees

I know most of you have to stiffle a yawn when you see a post about unions. Well you shouldn't! It is important stuff under the actions of the current administration. But I will try to keep this relatively brief. First a little background. The National Labor Relations Board (NLRB) is made up of 5 appointed members, 3 from the political party in power and the other 2 from the other party. Today that means the the NLRB is composed of 3 Democrat party appointees and 2 Republican. The actual number seated will depend on resignations, tenure of appointment (as in a recess appointment), and difficulty of getting appointees through the Senate approval process. During the Bush administration the Senate Democrats blocked a number of appointments so that NLRB was usually small in numbers. But they still decided on a number of cases.

One of these cases was that of Dana Corp. The issue at hand dealt with voluntary recognition of a union by management and whether employees had the right to contest that voluntary recognition by calling for a secret ballot election to decertify the union accepted by the company. The Bush-era NLRB said "yes" employees have that right and they altered the "bar to an election" that prohibited an election within one year of voluntary recognition. They said that EMPLOYEES may petition for an election. You can read the decision from the NLRB by clicking here for the write up.

This is a decision that  I personally agree with. In the world of union organizing the signing of authorization cards can be subject to acts of intimidation and people may be inclined to sign in order to save their kneecaps. Thus presentation of a bunch of cards with signatures may not accurately reflect the true feelings of the employees. Giving them a chance to vote on the union status will give you a more accurate test.

And that is the way things stand today. However, because the Bush-era NLRB was understaffed a Federal court declared that decisions made by that board were invalid and ordered the current NLRB to revisit those  (nearly 800) decisions. One of the first ones up is Dana Corp. And the early indications are that they will reverse the decision. They will declare that the voluntary recognition bar must stand and that if a union and management agree on the majority status of a union, and deem them to be the official representative of the employees, the employees will have no say in the process. For a great analysis of this and a story of personal experience in this read Jon Hyman's Card Check is Dead...Long Live Card Check.

What I find telling about this is that the NLRB is NOT about protecting the rights of employees, it is ALL about protecting the union organization. They are not interested in employees getting what is good for them, they are interested in protecting the status of the union, who through possible intimidation may be able to convince an employer that their employees would like to have that union. The unions know, as does the union-friendly NLRB, that if these situations are put to the test of an election they may lose because the true desire of the employees is expressed on the ballot and not on the authorization card. So the best way to prevent that is to take away the secret ballot election, much like EFCA was proposing.

So there you have it. The NLRB's first major decision will be one that is pro-union but ANTI-EMPLOYEE. So much for having your rights protected....

An Union Update: Craig Becker and the NLRB

I know many of you have to stiffle a yawn when you see the word "union" in a blog title. Well you shouldn't. It is IMPORTANT, especially at this time with this current administration. Of course if you feel that being unionized is good for business then don't even bother to read further. But if you are in the other camp, as am I, then read on.

Craig Becker, who was the chief counsel for the SEIU (Service Employees International Union), was given a recess appointment to the National Labor Relations Board, despite the fact that the Senate had voted overwhelmingly against his appointment. (52-33) Well, he is in and now in a position to help make signifcant rulings on hundreds of cases that had found to have been made incorrectly because of a lack of a quorum on the board.

If you think that now, as a member of the NLRB, he will make unbiased decisions then you need to probably rethink that stance. To give you a bit more background on Mr. Becker I point you to Michelle Malkin's blog post on him, Summer of corruption: Obama’s Big Labor ethics loophole. Lest you think this is a "fan" piece I will warn you right now it is not. But she points out information about Becker that I find to be rather telling. Here is bit more information on this subject from the WSJ.

So read up and understand why you need to be concerned about EFCA or EFCA like decisions that may come out of the NLRB.

Backdoor Cardcheck: Is This A Precursor to NLRB Actions?

In what is being called "backdoor cardcheck" by opponents and "fairness" by proponents the National Mediation Board instituted a change in the union representation election process that will make it easier for unions to organize airlines under the Railway Labor Act. Currently in a representation election under the RLA people in the proposed bargaining unit who do not vote in the election are counted as a "NO" vote. That 75 year precedent has now been reversed and the now Democratic party controlled NMB says that only votes cast will be counted thus making it easier to win representation if the union is more effective in mobilizing voters. (Under the National Labor Relations Act, which governs non-railroad/airline union activity, that is the way elections are held.)

The controversy comes from two actions of the NMB. First, this method of election has stood for 75 years, surviving two Supreme Court tests. Yet as soon as the NMB has a majority of Democrat Party members, the method is changed. The chair, Elizabeth Dougherty, a Republican, cast a dissenting vote, saying the actions where not reasonably explained. Many Republican Senators and anit-union employers and employee organizations protest that the NMB does not have the legal authority to make this change and they have filed legal challenges.

The other area of controversy comes from the fact that the same change was not made for the decertification election process. So the actions seem very biased in favor of those that want unions and against those that would like to get rid of a union. This difference of action has smacked of political pay back for the unions that gave so much money to the Democrat Party and the Obama administration.

The reason this is important to pay attention to is that the National Labor Relations Board (NLRB), which controls labor decisions in the private sector, is also now controled by the Democrat Party. Might we also expect political payback "tainted" decisions from them? Many surmise that we will see a slew of such decisions with the reversal of previous decisions, an announcement that has already been made. So if you are in the private sector, being aware of NLRB decisions and actions will be very important for you to pay attention to. You may see decisions the will:

• May the Employee Free Choice Act unnecessary, thus taking a controversial bill out of the limelight.
• May make employers provide "union type" rights to non-union employees, such as the right to have a representative in a disciplinary process.
• May shorten the time companies will be allowed to campaign against union representation.

The vote in the Senate on the legality of the changes made in the Railway Labor Act by the National Mediation Board will be a telling one. If it is made on strict party lines the changes will be upheld. If Senators vote on the merits of overturning a 75 year rule then the vote may be different. Pary line votes will then empower the NLRB to make similar decisions and dealing with union activity in the private sector will become much more problematic.

Stay tuned.

Carnival of HR: Mid-April Edition

Well some how I missed it.. But upon finding it I wanted to point it out to you. The "Not So Corporate HR Carnival" was published at the ImSoCorporate blog site. The topics of the 30 blogs posted cover the gamut from social media to workplace humor and songs about work. In between are posts on 360 reviews, leadership, myths of productivity, technology, compensation and labor.

It is this last post, by Mike Vandervort, that I want you to pay attention to. I was going to do a post on this as well but Mike says it so well I would just be redundant. BUT THIS POST HAS SIGNIFICANT INFORMATION IN IT. SO READ IT! Here is the special link to Life Under the New National Labor Relations Board. This new "life" will not be fun, it will not be easy and it may be expensive if you do not heed the warnings contained here in.

Strategy Alert: Too Few Workers and Union Activity

Here are some strategic tidbits to start your week off. First, I am sure you heard that Craig Becker was given a recess appointment to the National Labor Relations Board. If you are not sure why this is important read my post NLRB Nominees: Loading the Dice in Favor of Labor Unions. If you consider yourself strategic you would have already been planning for this, but in case you haven't been paying attention here is what you might plan for. With Becker and Pearce both getting appointed you can now expect a much more union friendly environment. There have already been indications that this Democrat (read Union) controlled board will overturn many previous decisions of the board under the Bush administration. One possible ruling may be having the Weingarten Rule reinstated for non-union workers. Weingarten established the right of representation for workers who feel they will be disciplined. Employers who refuse to allow this representation may be charged with an unfair labor practice, even if no union is present, and may be required by the NLRB to reinstate the workers and pay back pay. Having this right may encourage workers to review the other "benefits" of having union representation. (If you would like a history on this back and forth decision see this 2004 article from Law at Work.) 

The second strategic point is farther off in the distance, but you need to plan for it now. The Dukakis Center at Northeastern University just released a report projecting a significant labor shortage by 2018. A couple of highlights from the report include:

• By 2018, with an expected return to healthy economic growth but no change in current labor force participation rates or immigration rates, there will likely be more jobs than people to fill them.
• If the baby boom generation retires from the labor force at the same rate and age as current older workers, the baby bust generation that follows will likely be too small to fill many of the projected new jobs.
• There could be at least 5 million potential job vacancies in the United States, nearly half of them (2.4 million) in social sector jobs in education, health care, government and nonprofit organizations.
• The loss in total output could limit the growth of needed services and cost the economy as much as $3 trillion over the five-year period beginning in 2018.

The report, called After the Recovery: Help Needed, reports that some of this shortage may be offset by enticing Baby Boomers to stay in what they call "encore" jobs. These are mostly medical, social service and education positions that not only provide income but also provide personal fulfillment to the baby boomers. This frees up younger workers to fill other positions.

Obviously if you are in healthcare right now you need to pay heed to these numbers. 2018 is not that far away. But everyone needs to pay attention to this. Issues include:

1. What jobs do we have that we may be unable to find workers for?
2. How will changing technology alter the job picture for us?
3. What is the composition of our current workforce? What is the expected loss to us?
4. What possible training will we need to do and what will be the expense?
5. How will we do this training?
6. Who or where do we need to team with to insure a future supply of workers?
7. What effect will this have on our recruitment structure and compensation structure?

These are just some of the issues. So ask yourself am I being strategic?

Update of Union Activity

With all the talk about Healthcare one would think that no other legislative activity is going on in Washington. Alas, we could not be so lucky. There is still plenty of activity going on. So here is an update on various activities that are taking place.

1. The folks at the Labor Relations Institute published this blog post with a great run down on what is happening with the Employee Free Choice Act. EFCA Update They point out that EFCA has become a shorthand statement for aggressive union tactics and warn of recess appointments of NLRB nominees Becker and Pearce. (They have to be recess appointees because they are so union biased their appointments are being blocked by the Senate.)
2. The folks at CrediblyConnect that Unions Don't Have EFCA (Yet), But Have Won Other Victories That Make It Easier to Organize Employees . These include changes in the rules that had required Unions to reveal how and where they spent their members money. Secretary Solis made changes that now allow the Unions to not disclose their finances.
3. @OhioLaborLawyer on Twitter pointed out that unions are not happy with some Democrats and plan to punish them at the polls. Read Unions taking on Dems who don't toe labor line that was published in The Hill.
4. Attorney Eric B. Meyer linked to an article in S.C. Politics Today about South Carolina taking the bull by the horns and protecting the state from EFCA legislation in  Secret union ballots gets OK in Senate.
5. Lastly, also from The Hill, we have Police, firefighter unions see chance to expand collective bargaining rights which discusses in roads, outside of EFCA, that public safety unions are making.

Regardless if you are currently dealing with unions or not you need to read this stuff. With changes at the Department of Labor, the NLRB, and in legislation  you may at some point soon be dealing with union activity. And the more preparation and information you have the better off you will be.

Unions and Government: A Troublesome Combination

I received a newsletter this morning from The Heritage Foundation. It was entitled Morning Bell: Big Labor Is Bankrupting Our Country.  It was an eye opener in some areas. (In the spirit of openess, The Heritage Foundation is a conservative think tank. So if you want to discount this information it is up to you. But I would pay attention to the facts.) Here are some of the facts they listed in the newsletter (and some comments by me):

1. Last month when the White House released its visitor log for the first six months of the Obama presidency, one name appeared far more often than any other: Service Employee International Union (SEIU) President Andrew Stern. (Wow, the MOST frequent visitor? Expecting something or trying to organize the White House housekeeping staff?)
2. The SEIU spent $60.7 million to elect Barack Obama president. (Stern has made it clear that he expects reciprocity. I don't think he is getting to use the Lincoln bedroom in exchange for this $60 million.)
3. Quoting a Hertiage scholar “The overall unionization rate between January and September 2009 stood at 12.4%, unchanged from last year. However, this difference masks a large difference between unions in the private and public sectors. Union membership has fallen to 7.3% of private sector workers ..... But it is a completely different story in the public sector: 37.6% of government employees belong to unions, up almost a percentage point since last year. Those 7.9 million unionized government employees are 51% of all union members nationwide.” (So the governments are such poor employers that almost 38% of workers feel they need a union to protect them. Yet they tell us in the private sector how to run our businesses. Yet only 7.3% of private sector workers have sought union protection. Hey lawmakers, "wake up and smell the coffee!"

The newsletter goes on to explain why unions target governments. Easier campaigns, more dues making it easier to influence or pressure politicians who need to get elected or re-elected. I will let you read this. The conclusion they reach is that all of this makes government more expensive and may push us to the brink of bankruptcy as a government. Is this a valid conclusion? Well took a look at how unions have helped the car industry, the steel industry, and the airline industry (anyone remember Eastern). You can draw your own conclusions.

With the changes in the NLRB, proposed legislation (EFCA and RESPECT) and executive changes removing union financing transparency unions stand a chance of regaining their "power" through political pressure and intimidation. The question is "At what cost?" to us as taxpayers, employers, employees and consumers. A truly troublesome combination.

NLRB Nominees: Loading the Dice in Favor of Labor Unions

How would you like to play a game where everytime you threw the dice you were unlikely to win because you had been given a pair of "loaded" dice? (click for the meaning of this idiom.) You probably would not want to play anymore. But what if you had no chance? What if it was the only game in town? And what if your previous wins with the non-loaded dice were going to be set aside because you were not playing under the new rules?

Well that is the scenario that is being set up with the new nominees for the National Labor Relations Board. The NLRB is made up of 5 members. Three of them generally are generally appointees of the party controlling the White House. So in this case that would be three Democratic nominees and two Republican nominees. Currently there are only two appointed members serving. One was a Bush nominee and one was a Clinton nominee. The Clinton nominee, Wilma Liebman was Obama's  for the position of Chair of the NLRB. The Bush appointee is Peter Schaumber. The remaining two Democrat nominees are Mark Pearce and Craig Becker. Craig Becker in particular has become a lighting rod for controversy. A Republican nominees has yet to be named.

To help understand why this controversy exists let us compare the backgrounds of the current members and nominees.

• Peter Schaumber: Prior to his appointment as a member of the Board, Mr. Schaumber practiced as a labor arbitrator serving on a number of industry panels and through national arbitration rosters. Mr. Schaumber began his legal career as an Assistant Corporation Counsel for the District of Columbia. Subsequently, he was appointed Assistant United States Attorney for the District of Columbia and served in that office's Criminal and Civil Divisions. Upon leaving the United States Attorney's Office, he became Senior Trial Attorney and Associate Director of a Law Department Division in the Office of the Comptroller of the Currency. Upon leaving government service, Mr. Schaumber entered private law practice in Washington, D.C. and was director of his firm's Litigation Department. His practice included a wide range of trial and appellate civil litigation
• Wilma Liebman: Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.
  From 1994-1996, Ms. Liebman served as Special Assistant to the Director of FMCS. In this role, she was a key member of the Mediator Task Force on the Future of FMCS, an 18-member employee group charged with articulating a vision and recommendations to lead the Agency into the 21st century. Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. She served as Legal Counsel to the International Brotherhood of Teamsters for nine years and as staff attorney with the NLRB from 1974 to 1980.
  
• Mark Pearce: Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. In 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law.
  
• Craig Becker: Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
  

The emphases in each bio are mine. The one current Republican nominee was an arbitrator. Arbitrators are known for carefully guarding their reputations for being unbiased so they can decide cases without bias. Pearce has practiced UNION side law his entire career. Liebman, did work for the Federal Mediation and Concilliation Service, which is a plus, but was an attorney for TWO different unions. And Becker is CURRENTLY on the payroll of arguably the most powerful union in the country, the SEIU, as well as acting as council for the AFL-CIO. Becker is well known for writing many papers indicating that UNION will always win if he has anything to do with it. (Follow these links to Shopfloor and the National Right To Work committee to see business' view of Becker.)
 
Republican Senators are adamently opposed to Becker's appointment, and Senator John McCain in particular has moved to oppose his appointment. Political wrangling may end up seeing Becker's nomination being used as a bargaining chip in the final determination of various labor friendly bills currently pending in Congress. The appointment of this board as it stands will potentially have as much an effect on the labor picture in the U.S. as the passage of any bill such as EFCA or RESPECT. The opportunity for this potential board to over turn 8 years of NLRB decisions will significantly alter the labor picture for companies of all shapes and sizes both union and non-union alike.
 
So stay tuned Bunky! The road may get rough.