In a June 27, 2008 decision, the National Labor Relations Board ruled that a temporary employee placement agency violated the law by including a confidentiality provision in employment contracts prohibiting placed workers from disclosing the terms of their employment.  In Northeastern Land Servs. Ltd. d/b/a NLS Group, 352 N.L.R.B. No. 89, Board Chairman Peter C. Schaumber and Member Wilma B. Liebman reversed the administrative law judge's decision dismissing the complaint.  The Board held that the confidentiality provision violated the National Labor Relations Act because employees reasonably would understand it as prohibiting them from discussing their terms of employment with union representatives.

The challenged provision in the contracts read:

Employee understands that the Employee will have direct access to and contact with NLS’ various clients as Employee performs services hereunder and Employee agrees to keep all information obtained or utilized in the course of performing its services strictly confidential. Furthermore, Employee agrees not to solicit work or accept assignments from any of NLS’ clients directly while engaged in services hereunder, or for a period of six (6) months after the termination of this agreement. Employee also understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.  [Emphasis added.] 

Relying on well-established precedent, the Board concluded that employees would reasonably construe this language to prohibit activity protected by Section 7 of the National Labor Relations Act. 

While this is not exactly "new law," it provides notice for prudent employers to review their existing confidentiality policies to ensure they are properly tailored in compliance with the National Labor Relations Act. 

Ross Runkel, Professor of Law Emeritus at Willamette University College of Law and publisher of several workplace law blogs (all linked at www.lawmemo.com) has just published the first in a promised series of twelve articles on Bush's NLRB Legacy.   Professor Runkel is a terrific resource who tells it like it is without any knee-jerk bias on any issue.  This series will be worth reading.

As we predicted recently, the National Labor Relations Board, which will soon have only two Members, has delegated authority to those two Members to continue to rule on unfair labor practice and representation cases. The delegation is based on the argument that, because the NLRA grants the Board authority to delegate cases to three-Member panels, two Members can constitute a quorum. The action is effective at midnight tonight and will dissolve when the Board again is comprised of at least three Members.

Although the Board made a similar delegation in 2005, that action was not challenged because a third Member was recess appointed by President Bush within a few days. This time, however, recess appointments seem unlikely. In light of labor’s expressed desire to see the Board “closed for renovations,” such a challenge to the Board’s continuing operation may come from those in the union movement.

Of course, the two remaining Members – Wilma Leibman and Peter Schaumber – rarely see eye-to-eye on controversial issues, so it is unlikely that any but the most routine cases will be decided for the foreseeable future.

The Board also delegated to the General Counsel the full and final authority to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the NLRA.

by Chuck Rice

After holding employers in suspense for several years, the National Labor Relations Board (“NLRB”) has recently issued its much-anticipated ruling on the application of the National Labor Relations Act (“NLRA”) to restrictions on employee use of employer-provided e-mail systems. Guard Publishing Co. d/b/a Register-Guard, decided on December 16, 2007, held that the NLRA does not grant employees any inherent right to use an employer’s e-mail system for union-related communications and gave employers broad latitude to implement and enforce workplace policies restricting employee e-mail use.

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As we noted several months ago , the five-member National Labor Relations Board is facing an operational crisis. Chairman Robert Battista’s term expired on December 16, 2007. Members Dennis Walsh and Peter Kirsanow are serving recess appointments that expire upon the sine die adjournment of Congress in 2007. That will leave only Member Wilma Leibman and Member Peter Schaumber.

While President Bush has the power to fill those vacancies via recess appointments, that is appearing less and less likely. A New York Times story today, entitled, “ Gone for the Holidays, but Leaving a Light on (Got It, Mr. President?) ,” noted:

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The website GovernmentExecutive.com reports that the omnibus spending bill passed the House of Monday without the Genetic Information Nondiscrimination Act and some of the other labor and employment law provisions that were considered for inclusion.

A host of matters unrelated to appropriations surfaced in the final negotiations, in some cases only getting resolved in the final hours before the bill was filed early Monday morning.

For example, Democrats backed off an attempt to add House-passed legislation, backed by GOP moderates like Sen. Olympia Snowe of Maine, to bar employers from discriminating based on an individual's genetic information.

Democrats also failed to include a provision that would have blocked enforcement of the Department of Labor’s Revised LM-30 rule. 

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By Richard Hankins

This week’s joint Congressional hearing entitled, “The National Labor Relations Board: Recent Decisions and Their Impact on Workers’ Rights” was, as expected, entertaining. Predictably, the majority of the witnesses selected by the Democrat-controlled committees asserted that the Board’s recent decisions undermined employee rights, while current Board Chairman Robert Battista (appointed by President George W. Bush) and former Board Member Charles Cohen (appointed by President Clinton to fill a traditionally Republican seat) disagreed. There was partisan rhetoric from the committee members and from some of the witnesses. But amidst all of that, there was clarity about the central point of contention – whether the United States government should be in the business of promoting union representation.

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Witnesses have been announced for Thursday’s hearing by the Senate Subcommittee on Employment and Workforce Safety and House Subcommittee on Health, Employment, Labor, and Pensions.

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Change to Win, the coalition of unions that left the AFL-CIO because it was tired of focusing on politics, is running full-page ads in select newspapers criticizing the National Labor Relations Board’s recent decisions. Legal times reports:

Timed in advance of Senate Health, Education, Labor and Pensions hearing hearings on NLRB matters next week, the campaign is limited to print ads in major markets and internet advertising. It's not a major buy, described by Change to Win spokeswoman Noreen Nielson as limited to five-figures. The goal, she says, is to test the water in advance of future NLRB efforts.

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Carter Wood of the National Association of Manufacturers notes that "Subcommittees from the Senate Health, Education and Labor and the House Education and Labor hold a joint hearing Thursday on recent decisions and the adjudication process at the National Labor Relations Board."   One might expect such a hearing to get a little publicity later this week.