HR Professionals Get Update on Labor Board, As Practitioner Forecasts Another Active Year

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Lawrence E. Dubé  

Last year was an active and eventful one for the National Labor Relations Board, a labor law practitioner told Society of Human Resource Management members March 5 at SHRM's Employment Law & Legislative Conference, but he predicted the recess appointment of three new board members and a docket of important cases may make 2012 just as eventful.

Paul Salvatore, a partner in Proskauer in New York City, gave attendees an update on the NLRB, an agency he warned has been changing “almost by the week” as it makes “seismic shifts” in interpretations of federal labor law.

Salvatore polled his audience and determined that most of the SHRM members at the session work for nonunion employers. But he reminded them that the National Labor Relations Act applies not only to union-management relations but also to a company's treatment of workers who are not represented by a union.

Salvatore, who serves as co-chair of Proskauer's global labor and employment law department, said 2011 was marked by NLRB's announcement of a number of important decisions and by the board's adoption of controversial regulations requiring employers to post notices of employee labor law rights (62 BTM 273, 8/30/11), and a rule that would change agency procedures in representation cases under the NLRA (63 BTM 1, 1/3/12).

Business groups are challenging both regulations, Salvatore explained, but he reminded the audience that both rules are set to go into effect April 30 unless the courts or Congress intervene.

‘Concerted' Activity Under NLRA a Key Issue

Salvatore said employers have been understandably concerned about NLRB decisions and regulatory actions he described as “tipping the playing field in a union-friendly way.”But he warned that human resources managers should pay special attention to developments under the NLRA involving the protected concerted activities of employees, including nonunion workers.

Cases involving employee comments on social media and legal challenges to employer personnel-policy statements are two areas in which Salvatore said the NLRA is being “blown out” into the nonunion workplace. The legal principles at stake in such cases are not novel, he said, but he warned that NLRB's Acting General Counsel Lafe E. Solomon has been moving aggressively.

Salvatore said the area is a “minefield you could unknowingly walk into” with a poorly drafted policy on the use of social media or employee conduct.

Predicting that “2012 is shaping up to be just as active as 2011 was,” Salvatore warned the audience to pay close attention to the NLRB. The acting general counsel's highly publicized 2011 complaint against Boeing Co. has been settled, Salvatore said, but he cited the case as “an example of how ‘out there' this juggernaut is.”

By Lawrence E. Dubé