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Lafe Solomon ponders attacks on NLRB, flack from employers over agency directives

May 24th, 2013  |  Lisa Milam

“The NLRB is truly at an unprecedented place in its history; we’re being attacked politically, judicially, and legislatively,” said NLRB Acting General Counsel Lafe Solomon, speaking on Monday, May 20, at a plenary session of the Minnesota CLE’s Upper Midwest Employment Law Institute. The House passed a bill defunding the agency until the recess appointments issue is resolved. (A similar measure was introduced, with weaker prospects, in the Senate.) The House also passed a $50 million cut in the NLRB budget—on top of sequestration. Though chagrined by the onslaught, Solomon told the audience that the agency “will be conducting business as usual, even while fending off these attacks.”

As general counsel, Solomon serves under the Federal Vacancies Act, so the D.C. Circuit’s Noel Canning v NLRB decision invalidating President Obama’s recess appointments to the NLRB does not directly impact him (except for when he seeks injunctive relief in district court based on the Board’s delegated authority). Rather, “the most serious challenge is that when I issue a complaint, it’s obviously based on Board law, and people are attacking the law on which I base the complaint.” Exacerbating matters, of course, is the fact that there is no time limit for seeking to overturn a Board decision as invalid and that Board rulings are not self-enforcing.

“There are some very important decisions being challenged on the basis that the Board was invalid,” Solomon said. “There are interesting tangential, collateral attacks on us judicially. Some employers are going into the D.C. Circuit court seeking writs of mandamus against us. It’s unprecedented.”

Nonunion workers. In a subsequent conference session, Solomon delved more deeply into the agency’s substantive rulings and policy positions that have generated such alarm among employers, including nonunion companies that had assumed they were well outside the Board’s reach.

“I am often accused of applying the NLRB to the nonunion workforce in a novel way,” Solomon said. But, he pointed out, the notion of nonunion workers banding together to seek improvements in terms and conditions of employment “was embedded in the Act in 1935, and all Boards and GCs have enforced the law against nonunion employers… I would argue that the current Board and I have not done anything novel or unprecedented.”

Social media. On the other hand, Solomon noted, “I’ll be the first to acknowledge that when I issued a complaint in 2010 about a Facebook complaint, the world as I knew it changed.” He was alluding to the social media disputes taken up in recent years and his GC memos outlining his conclusions as to the lawfulness of various social media policies under the NLRA. “For us, it was a fairly straightforward application of the Act, although in a new context.”

Noting that “I have tried to be as transparent about my thinking as possible” by issuing memoranda, Solomon stressed that “not all social media conversations are going to be unlawful under the NLRA.” Specific evidence of concerted activity—before, during, or after the social media interaction—is needed. “The Board has never protected mere griping. You can also lose the protection of the Act even if there is concerted activity,” he continued. Solomon cited, for example, the case of a bartender who stated on Facebook that the bar watered down its drinks, that its customers were “rednecks,” and that he hoped they “choked on glass” on the way home. “We did not issue a complaint.”

As for enforcement activity regarding employers’ social media policies, Solomon said that he talks to HR groups regularly, where he found some concession to the fact that employers may have overplayed their hand in this area. “There was an admission early on that a lot of these policies were written very over-broadly and not with any consideration of the NLRA.”

“We try to look at these policies and the way that a worker would interpret them, and whether they would interfere with their rights under Section 7. We have issued complaints over some of these policies and some of them were found to be lawful.” He cited, for example, social media policies promulgated by Wal-Mart and Cox Communications.

“The safest way for employers to deal with it, from our perspective, is to give examples of what you can do and cannot do,” Solomon advised. A safe harbor clause articulating that the policy is not intended to interfere with rights under the Act is also advisable. On the other hand, he said, “a savings clause won’t work if you have all of these prohibitions for two or three pages and then at the end you reference Section 7 but don’t identify what Section 7 is.”

Trying to place the Board’s enforcement activity in this area in its proper context, Solomon reminded attendees more than once that “the NLRB does not solicit any charges; we only act on what complaints are filed with the office.” He also stressed the social media policy provisions that have passed muster, adding, “If I say there won’t be a complaint issued if you have a certain provision in a social media policy, you can take that to the bank. There won’t be a complaint issued for as long as I’m acting general counsel.”

At any rate, Solomon noted, the focus of social media policies has now shifted to the Board itself, which has begun to issue decisions on this issue. “I would interpret most of them as supportive of the same theories” that the GC’s office has espoused, Solomon said.

At-will employment. More recently, a dust-up arose over concerns that the agency was levying an attack on at-will employment clauses. The controversy erupted when one regional director filed two cases taking the position that specific at-will provisions violated Section 7 rights. In one case, the regional director construed the provision to mean that employees were required to waive their right to be anything other than an at-will employee.

“The at-will issue was interesting for me,” Solomon said, who was caught by surprise. “I do a lot of public speaking and I started going to conferences and people began attacking me for calling at-will employment statements unlawful.” So he issued a directive to regional directors that any “at-will” cases were to be vetted through the GC’s office to determine how to proceed. “Obviously, 93 percent of companies in the United States have at-will provisions! I wanted to make sure that we were doing something that we could defend, that made sense.”

Ultimately, Solomon issued a memorandum on four different at-will provisions. “In each of these, I said the provisions were lawful, and I refused to issue a complaint. It gives you four examples where you can rest assured, if you have a provision that is similar, there won’t be a complaint issued.”

Confidentiality. Employers’ concerns of late have focused on a Board holding that maintaining a blanket confidentiality rule, even as applied to internal workplace investigations, can unlawfully interfere with employees’ Section 7 rights. How can employers balance their obligations to avoid or investigate harassment (and other concerns), Solomon was asked.

“We are cognizant of the fact that there are legitimate business interests at stake,” he replied. “But you should identify what those business interests are. You have an obligation to have a harassment-free workplace. You need to protect proprietary information. You should write the confidentiality policy to specifically protect those interests that you need to protect, and not go further.”

“I don’t say this flippantly,” he continued, “but it is a price of doing business in this country that there are protections for workers’ rights.”