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NLRB Declines to Revisit Employee Use of Company Email Systems . . .

Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now, as the Board, in Purple Communications, Inc., 361 NLRB No. 43 (2014), declined the NLRB’s General Counsel’s invitation to overrule Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). But, in continuation of a troubling trend, the Board in Purple found yet another employer work rule—a “no disruption” rule—to be unlawful, resulting in an employer’s election victory being overturned and a new election being ordered.

NLRB Sidesteps Register-Guard; Still Orders New Elections in Purple Communications

Late last week, the NLRB issued its highly anticipated decision in Purple Communications, 21-CA-095151, which many NLRB observers believed would re-visit whether or not employers may prohibit their employees from using company equipment, especially e-mail, for non-business purposes. The Board saved that issue for another day, but its ruling still provides important lessons to employers.

Labor Board Declines to Overrule Favorable Union Beck Notice Precedent

A union fulfilled its “Beck” notice obligations to a new employee even though it failed to disclose the “reduced fees and dues” for which the employee would be responsible by refusing to become a member under a union security clause at the same time it first informed the employee of his obligations under the clause, the National Labor Relations Board has ruled. United Food & Commercial Workers Local 700, 361 NLRB No. 39 (Sept. 10, 2014). In a 3-2 decision, the Board dismissed the NLRB General Counsel’s complaint against the union.

Back To Basics: A Divided Seventh Circuit Upholds Indiana’s “Right To Work” Law

In 2012, Indiana enacted the “Indiana Right to Work Act”, prohibiting unions from requiring an individual, as a condition of employment, to 1) become or remain a member of a labor organization; 2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization; or 3) pay to a charity or third party an amount equivalent to or a pro-rate part of dues, fees, assessments or other charges required of members of a labor organization. Indiana thus became one of 24 states with some version of a right to work law on the books.

Senators Introduce NLRB Reform Act to Reduce Partisanship at the Board

On September 16, 2014, Senate Republican Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) introduced the National Labor Relations Board Reform Act. In a press release, Sen. McConnell said, “it’s past time to restore the NLRB to its proper role as umpire, instead of advocate for the Right or Left.” Co-sponsor Alexander said, “The board is too partisan, swinging from one side to the other with each new administration . . . It's time for the board to restore stability to our nation's workplaces, with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”

California Hospital Ordered to Pay Union's Negotiating Costs

In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc. violated the National Labor Relations Act by making unilateral changes to nurse training requirements and by setting preconditions to bargaining.

Senate Considers Nomination of Sharon Block to the NLRB

A day after the Senate returned from its summer recess, the Committee on Health, Education, Labor and Pensions held a hearing to discuss the nomination of former recess appointee Sharon Block to be a member of the National Labor Relations Board. President Obama announced his intent to re-nominate Block to the Board on July 10, 2014. Block previously served as a member of the Board from January 2012 – when the President seated her and two other members via recess appointment – until the summer of 2013, when her nomination was withdrawn as part of a Senate deal to allow votes on the five current NLRB members. In June of this year, the U.S. Supreme Court in Noel Canning held that Block's recess appointment was invalid.

House Panel Discusses Potential Revision to Joint Employer Standard

A congressional subcommittee examined the merits and impact of the potential for franchisees and franchisors to be jointly responsible in cases alleging National Labor Relations Act violations.

Firings for Facebook Comments Unlawful, NLRB Rules

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook activity, the NLRB has ruled. The Board also ruled the employer’s Internet/Blogging policy violated the NLRA. Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).

Protected Concerted Activity on Facebook: The NLRB “Likes” This

The National Labor Relations Board (NLRB) continues to expand its interpretation of the forms of employee online behavior that constitute protected concerted activity under the National Labor Relations Act. Recently, in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB held that the simple act of clicking the “like” button under a Facebook post may, in certain circumstances, constitute activity protected by Section 7 of the National Labor Relations Act (NLRA).