Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

The National Labor Relations Board (“NLRB”) modified its election procedures earlier this month to incorporate the display of an American flag at all Agency-conducted elections. According to the NLRB’s announcement of the new protocol, the display of the national flag “will impress upon all of the participants to elections – employers, unions, and, most importantly, voters – the solemnity and importance of the Agency’s election process,” particularly for “new immigrants to our country [who] may be participating in free and fair elections for the first time.” Field personnel conducting Agency elections will supply the flags and will be trained in flag etiquette. 

Not everyone is pleased with the NLRB’s new policy – or at least with the rationale behind the policy. For example, a posting on the website of the pro-union organization American Rights At Work states: “In reality, NLRB elections bear no resemblance to political elections, and fall alarmingly short of the democratic process Americans envision when we use the term ‘election.’” Advocates for pro-union and union-free groups both typically argue about the fairness of the NLRB’s election procedures. Too bad they cannot at least agree on the NLRB’s new flag policy.

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“Salting” is an organizing tactic in which union supporters seek employment at a non-union employer with the goal of organizing the workforce once hired. For many years, unions used salts as an effective tool to organize non-union workforces, particularly in the construction industry. In 2007, the NLRB issued two decisions (both by 3-to-2 margins), which limited the effectiveness of salts. Last week, the office of the NLRB’s General Counsel issued two Memoranda to its Regional Offices that provide insight into how the NLRB will investigate and litigate salting cases under the  new standards.

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On December 16, 2007, the NLRB clarified its position regarding employer restrictions on employee e-mail use. The decision in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70, is significant for two reasons. First, the decision holds that employees do not have a protected right to use employer e-mail systems for solicitations or communications regarding union-related topics. Second, it applies a new standard for determining when employers discriminatorily enforce e-mail policies and, thus, violate the NLRA.

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