While most Americans were out preparing for Christmas last week, the NLRB had some presents of its own. For employers, the Board postponed its posting rule (which created a new unfair labor practice and potentially extended the statute of limitations) from January 31 to April 30, 2012. For unions, the Board issued a decision that allows persons who write up employees for discipline and issue it to the employees to engage in pro-union electioneering. The case, DirecTV U.S. DirecTV Holdings, LLC, was decided by a 2-1 margin. The majority found that the three-tier review of recommended discipline, conducted by the employer to ensure conformity with company procedures and various laws, meant that the alleged supervisors did not “responsibly recommend” discipline. This was true even though the percentage of recommendations adjusted during the reviews was very small (less than 10%). They did not give any weight to the fact that the alleged supervisors actually administered the discipline. The dissenter found that, based on a number of previous Board decisions, a review of recommendations initiated by alleged supervisors does not mean that they fail to meet the statutory test. From a practical standpoint, there would be few modern employers who do not subject disciplinary recommendations from anyone in their organization to a thorough review. Failure to do so would result in needless mistakes in our complex employment system.
Finally, the Board itself received a “present” of sorts, when President Obama nominated two individuals to the Board. Sharon Block is a Democrat presently serving with the Department of Labor on its Congressional Affairs. She formerly worked for Senator Kennedy on the HELP Committee in the Senate. Richard Griffin is the General Counsel of the International Union of Operating Engineers, and serves on the Board of the AFL-CIO Lawyers Coordinating Committee.