Member Article

As promised, Part 2 of our NLRB Roundup 1 takes a step back from the case law summarized in Part 1 to address 

other issues surrounding the current Board and its effect on the labor law landscape, including: (i) proposed 

comprehensive rules altering election procedures; (ii) the NLRB’s final rules requiring employers to post notices 

informing employees of their rights under the NLRA; (iii) developments on the prosecutorial front relating to social 

media; (iv) reconsideration of other NLRB law; and (v) the Boeing Company case. 

Proposed Election Rule Changes, Some Approved, Matter Embroiled in Controversy 

In a move that many have decried as an unfair attempt  to ease the path to unionization, the NLRB has proposed 

several noteworthy changes to its current election rules, and has already approved some of the less consequential 

ones in a 2-1 decision, (which is a story in itself discussed below). These proposals incited significant controversy 

among union and employer advocates when first proposed. This controversy came to a head in late November, as 

Board Chairman Mark Pearce, a Democratic appointee, initiated a vote on a portion of the proposed changes. That led 

Member Brian Hayes, the Board’s lone Republican appointee, to accuse the other two Board members of attempting 

to circumvent the Board’s established procedural framework to implement some of the proposed changes before the 

Board loses its quorum in December. 

Advocates of the proposed rules argue that the decline in private sector unionization, which has fallen from a high of 

slightly more than 35 percent in the mid-1950s to approximately 7 percent today, is partially due to delay in the union 

election process under the Board’s current rules. To address this purported delay, the Board announced its intention to 

revise its election procedures in a notice of proposed rulemaking published in June 2011. Public comment has been 

sharply divided, with unions applauding the rule and employer groups questioning the need for any new rules. 

Employer groups have also objected that the procedural changes under the  new rules would unfairly limit an 

employers’ time to mount a response to an organizational campaign. The proposed rules’ numerous technical changes 

to Board election procedures fall into three general areas: 

• Shortened and definite timing requirements: Pre-election hearings, held when the parties cannot agree 

on election issues such as unit composition and scope, would take place 7 days after a petition is filed. 

Similarly, post-election hearings, which address voter eligibility challenges and objections to the election, 

would be set within 14 days after the ballots are tallied. Both of these changes will shorten the election 

process.  

• Procedural changes to pre- and post-election hearings: Employers would be required to file a 

statement of position regarding, inter alia, bargaining unit composition and scope, and  voter eligibility 

issues. This rule would limit employers’ ability to  litigate issues that arise  after the hearing begins. 

Additionally, voter eligibility issues that do not involve more than 20 percent of the bargaining unit would be 

deferred until after the election. Finally, the proposed rules would eliminate employers’ ability to seek pre-

election Board review, and allow the Board to deny requests for review of post-election rulings by the 

Regional Director. 

• Substantially expanded disclosure requirements: The proposed rules would also require an employer 

to include in its pre-hearing position statement a list of all employees, in alphabetical order or by name or 

by department, and employee contact information. Also, once an election has been set, the proposed rules 

would substantially change the procedure for tendering an  Excelsior list. Currently, an employer must 

provide a paper list with employee names and addresses to the NLRB within 7 days which, in turn, 

forwards it to the union. The proposed rules shorten this deadline to 2 days, require that more information 

be disclosed, and that it be done in an electronic form. Besides the names and addresses, the employer 

must provide employee telephone numbers and e-mail  addresses and an alphabetical list, overall or by 

department, containing the employee’s work location, shift, and job classification. The Board has explained 

that these expanded disclosure requirements will help resolve unit inclusion and exclusion issues. Notably, 

they will also facilitate union organizing by informing the union of the employer’s departments and the 

areas where employees are located. Further, electronic lists with employee email addresses will obviously 

facilitate a union’s ability to communicate with employees. 

At this point, it remains to be seen whether all of the rules will be implemented in the form proposed by the Board. After 

the announcement of a November vote on some of the proposed measures, Member Hayes accused the Board’s 

Democratic majority of attempting to issue a rule before it lost a quorum when Board Member Becker’s recess 

appointment expires in December. The controversy engendered by this development led some to call for Hayes to 

resign before the November 30 vote to eliminate a quorum  and incapacitate the Board before it could issue any 

revisions to its election rules. Although Hayes did attend the November 30 meeting to vote against the proposals at 

issue, this controversy is a good example of the uncertain and contentious atmosphere that surrounds the Board’s 

actions at this time. 

It is also possible that Congress will amend the election process. For example, on November 30 of this year, the 

House passed the Workforce Democracy and Fairness Act (H.R. 3094), which would amend the Board’s procedures 

for addressing election disputes. Among the changes envisioned by the bill are a statutory incorporation of the 

“community of interests” test for bargaining unit determinations, longer and defined timelines for election procedures, 

and limits on the disclosure of employee contact information. 

Despite this uncertainty, employers should not assume that these proposed changes will go away. Whether or not the 

Board issues additional rules regarding  those proposals still under consideration, these proposed rules provide a 

valuable hint of how the Board’s election procedures might change in the future, particularly if President Obama is reelected for a second term. We will continue to monitor this area and address any notable developments in future alerts. 

NLRA Notice Posting set for January 31, 2012 

In August 2011, the Board issued its final rule requiring employers to post a notice advising employees of their rights 

under the National Labor Relations Act (“NLRA”) to pursue unionization, organize and bargain collectively, engage in 

other protected concerted activities, and refrain from such activities. The required notice also states that it is unlawful 

for an employer to interfere with, restrain, or coerce employees in the exercise of these rights. The NLRB has said that 

failure to post this notice may: (i) constitute an unfair labor practice; (ii) possibly serve as evidence of an unlawful 

motive in other unfair labor practice proceedings if the  failure to post was knowing and willful; and (iii) extend the 

NLRA’s six-month statute of limitations. 

The rule requires physical posting of an 11 x 17 notice, as well as publication on the employer’s intranet or internet site 

if the employer customarily uses these sites to communicate with employees. The notice posting requirement was 

scheduled to take effect on November 14, 2011, but the Board has postponed the effective date to January 31, 2012, 

reportedly to allow for further education and outreach.  

The rule has been heavily criticized by some as being pro-union, although the required notice, like the notices required 

by other employment statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, merely 

advises employees of the governing law’s language and provides examples of improper conduct. Critics have also 

challenged the NLRB’s authority to make it an unfair labor practice to fail to post the notice or to draw inferences of 

unlawful motive therefrom. 

Legislation has been introduced to bar the NLRB from requiring notice posting, and at least three lawsuits have been 

filed seeking to block the Board from implementing this rule. At this point, however, none of these efforts have been 

successful. Unless this changes, employers should plan on complying with the January 2012 posting requirement. 

The notice posting requirement will not affect government contractors. Since June 2010, government contractors have 

been posting a substantially similar notice pursuant to Executive Order 13496 and Department of Labor regulations. 

Although they would be subject to the proposed rule, the NLRB has stated that government contractors will be 

regarded compliant if they post the notice required by Executive Order 13496. 

A copy of the proposed notice can be downloaded from the NLRB’s website and printed for posting. 

Board Continues to Focus on Social Media 

Since the famous “Facebook firing” complaint in late  2010, concerns have been raised that the majority-Democrat 

Board’s social media focus was an attempt to establish  pro-union, anti-employer precedent, while giving employees 

free rein to disparage their employers online. Adding to this concern were reports that the Board has fielded more than 

100 charges related to social media issues. 2 However, as detailed in our September 7th client alert on social media 

and labor law, recent developments indicate that employee comments on social media sites are not protected simply 

because they are posted online. 3 The Board has said that it will apply settled labor law to social media cases. This 

approach provides a starting point and some predictability  to employers in implementing social media policies and 

taking disciplinary action based on employee social media use. However, the widespread and instantaneous nature of 

social media will involve unique factual circumstances precluding absolute certainty regarding the Board’s handling of 

social media cases. 

The Board evaluates social media policies under existing labor law.

The Acting General Counsel’s “Report …Concerning Social Media Cases” makes clear that existing standards 

concerning workplace rules will be applied to social media policies. A social media policy will violate Section 8(a)(1) of 

the Act if it would “reasonably tend to chill employees in the exercise of the Section 7 rights.” 4 To determine if a social 

media policy would have such an effect, the Board applies the two-step test established in Lutheran Heritage VillageLivonia, 

first examining if the rule explicitly restricts protected activities and, if not, examining whether: (1) employees 

would reasonably construe the language to prohibit Section  7 activity; (2) the rule was promulgated in response to

union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. 5 Under this criteria, the Board 

most likely will find unlawful policies that broadly prohibit online discussion of terms and conditions of employment 

without examples or limiting definitions indicating that the prohibitions do not apply to activity protected by Section 7. 6

The Board will also strike down an otherwise lawful social media policy if the employer relies upon it to punish or 

prohibit protected concerted activity. 7 

Employee social media activity may be unprotected. 

The Board’s recent publication also states that existing law should be applied to determine whether an employer has 

acted unlawfully in discharging an employee for disparaging or critical remarks via social media. As illustrated by the 

report’s discussion of Hispanics United of Buffalo as well as the Administrative Law Judge’s decision in that case, the 

Board applies a two-part test to this question: first, whether the communication was concerted and second, whether it 

was protected. 

In Hispanics United, the employer terminated a group of employees who had used Facebook to discuss a coworker’s 

complaints about their job performance. After the coworker criticized the employees in preparation for a meeting with 

management, an employee used Facebook to tell the other employees that “[their coworker] feels that we don’t help 

our clients enough” and ask “My fellow coworkers, how do u feel?” Several employees then responded by defending 

themselves and criticizing the employer’s staffing policies. The employer subsequently terminated the employees for 

bullying and violating the employer’s anti-harassment policy. 

The threshold consideration is whether the employee’s online complaints are concerted activity under the  Meyers 

Industries case. Under this case an activity is deemed concerted when an employee acts “with or on the authority of 

other employees, and not solely by and on behalf of the employee himself.” 8 Because the discussions at issue in 

Hispanics United were group discussions of terms and conditions of employment, the Board found that the employees 

had engaged in concerted activity. 

As further explained in  Hispanics United, the next inquiry is whether the employee’s comments lost the Act’s 

protection. Because the “finding of protected activity does not change if employee statements were communicated via 

the internet,” the report indicates that this inquiry is also unchanged by the social media context. 9 Rather, the Board 

will evaluate the employee’s comments under either Atlantic Steel, which applies when an employee has made public 

outbursts against a supervisor that are so “opprobrious” as to lose the Act’s protection, or Jefferson Standard, which 

applies when an employee has made allegedly disparaging remarks about an employer or its product to third parties 

that are so “disloyal, reckless, or maliciously untrue” that they lose the Act’s protection.10 In  Hispanics United, for 

example, the employees did not lose the Act’s protection, despite the fact that some of the posts used profanity.  

The Board also acknowledged the limits of the Act’s protection for employee social media activity in three memoranda 

from the Division of Advice, published in quick succession this summer. As these memoranda make clear, Section 7 

only protects online activities that meet the Board’s definition of protected concerted activity. Accordingly, the Division 

of Advice applied Board precedent to find that employers had acted lawfully in disciplining or terminating employees for 

the following online, work-related activity: 

• A bartender’s Facebook conversation with his sister complaining about his pay and his employer’s tip 

policy. The bartender’s posts referred to customers as “rednecks” and said he hoped they choked on glass 

as they drove home drunk. The Board concluded  that although the bartender had discussed the 

employer’s tip policy with a coworker several months before his posting, his online complaint did not “grow 

out” of the prior conversation, and was never discussed with his coworkers. Accordingly, the bartender’s 

Facebook activity was not concerted, and therefore not protected by the Act. 11

• A mental health facility employee’s Facebook posts  during her overnight shift  remarking that it was 

“spooky” working at night in a “mental institution,” and commenting that a nearby resident might be hearing 

voices. The employer fired the employee when a former client reported the posts. Noting that the posts 

“did not even mention any terms or conditions of employment,” and that the employee was not seeking to 

induce or prepare for group action, the Board found the posts unprotected by the Act. 12

• A Wal-Mart employee’s Facebook posts complaining about getting “chewed out” by his supervisor, and 

profanely suggesting that he and other employees were going to quit if Wal-Mart did not revise its policies. 

Although a coworker responded that  the employee should “hang in there,” the Board found that this 

response suggested that the coworker “viewed [the original posts] to be a plea for emotional support” and 

not an effort to induce group action. Accordingly, the post was “an individual gripe” and therefore not 

concerted activity protected by the Act. 13

As these examples demonstrate, not all employee social media activity is protected. Further, as a recent 

Administrative Law Judge’s decision in Karl Knauz Motors Inc. demonstrates, protected social media activity may not 

shield an employee from all social media-related discipline. 14  In Knauz Motors, a BMW salesman posted photos and 

comments about a recent car accident at an affiliated car dealership and also complaints and photos mocking the food 

served at his employer’s sales promotional event, which the employee felt was inconsistent with BMW’s status as a 

luxury brand. In addition to posting photos of the events, the employee commented that the food was limited to “chips . 

. . [a] $2.00 cookie plate from Sam’s Club . . . semi fresh apples and oranges . . . [and] to top it all off, [a] Hot Dog 

Cart.” While the ALJ found that the employee had engaged in protected concerted activity by posting the photos and 

comments, which he discussed with his coworkers, the ALJ also found that the employee had not been terminated for 

these comments. Rather, the ALJ agreed with the employer’s argument that the employee was terminated for posting 

photos and comments mocking a recent car accident at an affiliated dealership. Because the ALJ found that these 

photos and comments were not protected, he upheld the employer’s decision to terminate the employee. While it 

remains to be seen whether the Acting General Counsel will file exceptions to this decision, Knauz Motors is a good 

example of the fact-specific inquiries surrounding the application of established labor law to the social media arena.  

NLRB Reconsiders Rule Protecting Employers’ Witness Statements 

As revealed by its invitation for briefing in Hawaii Tribune-Herald, the Board may be re-considering its thirty-year-old 

policy on an employer’s duty to supply witness statements to a union taken during an investigation. 15 Historically, 

witness statements have been considered confidential material  that did not have to be turned over to a union. In 

Anheuser-Busch, Inc., 16  the Board determined that an employer must satisfy two elements to prove the existence of a 

protected witness statement: (1) that it assured the person giving the statement that the statement would remain 

confidential; and (2) the person has drafted and signed the statement or otherwise adopted the statement as his own. 

The briefing invitation requested discussion on whether existing labor law requires: (1) asking if the statement is a 

witness statement; and (2) if the statement is not a witness statement, is it nevertheless privileged as attorney work 

product. However, the NLRB website reframed the issue to ask whether the Board should continue to adhere to the 

holding in  Anheuser-Busch that an employer’s duty to furnish information does not encompass the duty to furnish 

witness statements and, if not, what standard should be  applied to requests for such statements. The Board’s 

reframing of the issue hints at a much broader agenda, indicating that the Board may depart from the Anheuser-Busch

test. 

Along with witness statements, employers often take notes on the information they discover during an investigation. To 

protect investigation notes from disclosure, the employer  must prove that: (1) it has a legitimate and substantial 

confidentiality interest in the investigation notes; and (2) its interest in maintaining such confidentiality outweighs the 

union’s need for information. 17 Yet, even if the employer establishes these two elements, it must offer and seek an 

accommodation that would allow the union to obtain the needed information while protecting the confidentiality of the 

information. 

Although the deadline to file briefs has passed, the Board  has not yet issued its decision. As a Member, formerChairman Liebman authored dissents in cases dealing with both witness statements and investigation notes. 18 Based on these dissents, as well as the request for briefing in Hawaii Tribune-Herald, it appears the Board may extend to 

witness statements the confidentiality analysis that it currently applies to investigation notes, meaning the employer 

would have to prove a legitimate and substantial confidentiality interest that outweighs the union’s need for the 

requested information to avoid disclosing them. When conducting investigations, employers should be aware that a 

major change of NLRB precedent could be on the way, and the information they gather may no longer have the same 

protections. 

“Unremarkable” Boeing Complaint Garners Remarkable Amount of Attention, and may now be Dismissed 

On April 20, 2011, Acting General Counsel Lafe Solomon  issued a complaint alleging that Boeing Co. illegally 

transferred some of its airliner production to a nonunion facility in South Carolina in retaliation for strikes by unionized 

employees at its Washington state facility. While Solomon has repeatedly urged that “there is nothing remarkable or 

unprecedented about the complaint,” the amount of publicity the complaint has received is anything but ordinary. 

Boeing, which has a backlog of orders for its Dreamliner aircraft, announced that it would build an additional assembly 

line to handle the orders in North Charleston, South Carolina, rather than in its existing Puget Sound facility. According 

to the complaint, company officials made five comments between October 2009 and March 2010 that connect the 

move to the company’s experience with multiple strikes at the Washington facility, and its concern about future work 

stoppages. Therefore, the NLRB alleged that the company’s actions violated Section 8(a)(1) of the NLRA, which 

prohibits an employer from interfering with, restraining, or coercing employees in their exercise of rights under federal 

labor law, and Section 8(a)(3), which makes it an unfair labor practice for an employer “by discrimination in regard to 

hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any 

labor organization.” The complaint also asserted that the company’s transfer of work was “inherently destructive” of the 

employees’ right to participate in lawful work stoppages. 

Both Boeing and the NLRB have publicized their positions. In a May 3 letter that quickly appeared on the Internet, 

Boeing’s Executive Vice President and General Counsel responded to Solomon, alleging that the complaint 

mischaracterized Boeing’s decision as a transfer of work when the South Carolina facility will be handling only “new 

work”. Meanwhile, the NLRB website contains a “Boeing Complaint Fact Sheet,” a “Fact Check” page to correct 

misconceptions about the case, and even a twitter account, @NLRBBoeingtrial, to keep the public updated as new 

documents are posted. The International Association of Machinists and Aerospace Workers (IAM), which represents 

employees at Boeing’s Puget Sound plant, released documents acquired via subpoena that allegedly show that 

Boeing’s decision to locate the Dreamliner production line in South Carolina was motivated by union animus.  

Additionally, the Boeing complaint has become a national political issue. Some Congressional Republicans have called 

the NLRB’s action an attack on right-to-work states and the freedom of American companies to choose where they 

build plants. In May, House Republicans introduced the Job Protection Act, 19 and Senate Republicans introduced their 

version, the Right to Work Protection Act, 20  which would block the NLRB from moving forward with the Boeing case 

and from taking similar action against other companies who choose to transfer work. Both bills are still in committees. 

In June, sixteen state attorneys general filed an amicus brief claiming that the suit is “unprecedented” and will harm 

their states’ ability to attract new employers and jobs. In July, Rep. Tim Scott (R) introduced H.R. 2587, the Protecting 

Jobs From Government Interference Act, which would deprive the Board of the power to obtain an order requiring an 

employer to restore or reinstate work or production to a particular location. The proposal moved to the full House within 

two days of its introduction, and the House passed the bill on September 15.  

Numerous Congressional committees have also requested information from the NLRB regarding the Boeing case, and 

at the direction of Representative Darrell Issa, (R-CA) the House Committee on Oversight and Government Reform 

insisted on Solomon’s presence at a June 17 field hearing in South Carolina and later issued a subpoena for more 

documents. Thirty-four law professors sent Issa a letter, urging him to  allow the Board to “do its job without undue 

interference”, and democrats allege that the committee is improperly using its  authority to circumvent labor law on 

behalf of corporate interests. While Solomon and the NLRB have supplied more than 5,000 pages of documents, they 

have resisted turning over information that they claim could have jeopardized the constitutional due process rights of 

the parties to the case. 

The hearing on the Boeing complaint began on June 14 before an Administrative Law Judge in Seattle, Washington. 

To accommodate the unusually high number of spectators, the hearing was to be moved from a traditional hearing 

room in a federal office building to a courtroom normally used by the U.S. Court of Appeals for the Ninth Circuit. On 

June 30, the ALJ denied Boeing’s motion to dismiss the ULP complaint. For the past several months, the parties have 

been engaged in a dispute over the production of documents related to the company’s decision to open the South 

Carolina production line. In October, the hearing was delayed to take subpoena issues to federal district court, and 

Solomon was unsure when the hearing would resume. 

In fact, the hearing will never resume, as Boeing made an agreement for a new four-year contract with the IAM. In 

connection with the agreement, Boeing announced that it will build its new 737 MAX aircraft in the Puget Sound region 

“pending approval of an early contract extension with [IAM].” This move offers job security to Washington-state Boeing 

employees who were unhappy with the decision to produce  the Dreamliner in South Carolina. The IAM ratified the 

agreement on December 7, and two days later, the NLRB  approved the IAM’s request to withdraw the ULP charge 

against Boeing. While Solomon called the settlement a “win-win” for both the company and the union, opponents of the 

NLRB’s action against Boeing remain critical of what they call the NLRB’s “shameless campaign to bully an American 

employer.”  

Liebman Out, NLRB Uncertainty In 

On August 26 Chairman Liebman’s term expired, and she left the Board after serving for almost fourteen years. In her 

own words, the Board came “back to life after a long period of dormancy” during her term. Under her leadership, the 

Board sought to reverse decisions handed down during the Bush era, strengthen Board-ordered remedies, and 

significantly expand the scope of employee rights protected by the NLRA. The White House has designated Member 

Mark Pearce, a Democrat, to succeed Liebman as chairman. Member Craig Becker’s term also expires at the end of 2011, 

which will leave the Board with only two members if Republicans delay efforts to fill open positions. This is significant because a two-member Board has no authority to 

act. 21 Although NLRB regional offices could still adjudicate unfair labor practice cases, losing parties could effectively 

ignore the decisions of administrative law judges until the Board has a quorum again.  

In preparation for the expected loss of quorum, the NLRB released a notice on November 8 delegating certain 

authority on a contingent basis to the agency’s General Counsel for periods when the board has fewer than three 

members. While the Board still will not be able to issue decisions or complete the rulemaking process for the proposed 

changes to representation election procedures that began in June, the order delegates to the General Counsel full 

authority on all court litigation matters and full authority to certify the results of any secret ballot election conducted 

under the National Emergency provisions of the Labor-Management Relations Act. The General Counsel will also have 

the authority to initiate and prosecute injunctions under Section 10(j) or Section 10(e) and (f) of the NLRA, bring 

contempt orders, and institute and conduct appeals to the U.S. Supreme Court. 

Alternatively, President Obama could make a recess appointment to add a new member. However, in the past, 

Congress has refused to recess in order to prevent the President from utilizing recess appointments to bypass the U.S. 

Senate confirmation process, and it appears that Congress is taking steps to use this power once again to cripple the 

NLRB. As a result, as we approach the end of the year and the end of the Board’s quorum, there is likely to be a flurry 

of Board activity while its three remaining members are still able to conduct business. 

Acting GC Looks Forward 

The Acting General Counsel has issued a number of memoranda that should give parties an idea of what to expect in 

the coming months. He has said his office will take a close look at remedies in election cases, such as allowing a union 

access to an employer’s email system and non-work areas, and to have equal time to respond to captive audience 

speeches, as well as whether to award litigation or bargaining expenses in first contract bargaining cases. 

He has also said he would entertain questions concerning an employer’s right to replace economic strikers if there was 

some proof of unlawful motivation (even if the strike was not an unfair labor practice strike) and the duty to supply 

information during bargaining. Stay tuned to see whether there will be further changes in the labor laws as a result

If you have any questions regarding this alert, please contact one of the lawyers listed below or visit the Haynes and Boone Labor and Employment Practice page of our website.

Arthur T. Carter

214.651.5683

[email protected]

Dean J. Schaner

713.547.2044

[email protected]

Jonathan C. Wilson

214.651.5646

[email protected]

Arrissa Meyer

214.651.5314

[email protected]

Lawrence Morales II

210.978.7440

[email protected]

Alex Stevens

214.651.5475

[email protected]