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Employment Blog

NLRB Blogs

Authored by Dean R. Dietrich
Posted on April 13, 2016
Filed under Employment

I have written a number of blogs regarding the position of the National Labor Relations Board relating to protected speech for employees.  The NLRB and its General Counsel have been very aggressive in concluding that the conduct of employees should be considered protected free speech and an employee may not be terminated for such conduct.  Rulings have gone so far as to conclude that a ranting by an employee using foul language would still qualify as protected speech and the employer could not terminate the employee for that conduct.  Several events over the last month have turned the tables somewhat on the NLRB. 

The Regional Director for the NLRB located in Philadelphia was suspended without pay for thirty days at the end of December because of his ties to a pro-union fund that was used to “educate and inspire the next generation of law students to become advocates for workplace justice.”   Known as the Peggy Browning Fund, this non-profit organization works to encourage law students to be advocates for pro-employee rights and union rights.  After complaints were raised to the Congressional delegation from the Philadelphia area, the Regional Director was suspended for a period of 30 days for his connection to this non-profit organization.

Further, a recent communication to Regional Directors acknowledged the NLRB was facing a budget shortfall for the rest of the fiscal year (through September 30) and suggested a number of cost saving measures that would make the Agency more flexible in settlement negotiations with an employer.  In other words, the NLRB is in need of money so it may be willing to compromise a case if the employer agrees to pay certain amounts of money.  It is even suggested the NLRB will be more flexible in determining what type of back pay would be given to employees if there is a conclusion that an unfair labor practice charge will be filed.  The memo also suggests the NLRB agents should use alternate investigative methods such as telephone affidavits and video conference interviews instead of in-person interviews when investigating a complaint of unfair labor practices.  The NLRB, of course, says these strategies will not change the enforcement authority of the Board but perhaps the investigators will become more understanding of the employer position because of this need to reduce expenses.

Employers should not rely upon the potential change in investigative techniques to assume success but perhaps the Board will be more understanding and willing to consider the employer position going forward.