At the heart of the Employers’ claims and the Court’s decision is the question of whether Congress placed removal protections for the NLRB’s members and Administrative Law Judges (ALJs) that inappropriately limit the President’s Executive Powers.  The Court determined that the protections for ALJs are plainly unconstitutional and the protections for members of the NLRB are likely so. The Appeals Court’s decision leaves in place a July 2024 preliminary injunction that paused NLRB proceedings against the Employers regarding unfair labor practice charges.

The decision included two important concepts.  First, no entity should be forced to choose between foregoing its rights under the Constitution and subjecting itself to compliance with an agency that is unlawfully constituted:  “The Employers have made their case and should not have to choose between compliance and constitutionality.”

The Court also noted that being subjected to enforcement proceedings by an unlawfully structured agency imposes irreparable harm, one element that is needed for a court to impose injunctive relief:  “When an agency’s structure violates the separation of powers, the harm is immediate – and the remedy must be, too.”

The NLRB is expected to seek review by the Supreme Court of the United States. We will continue to monitor these cases as well as other court cases being litigated against the NLRB.

The full decision of the case can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-50627-CV0.pdf

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In mid-2023, the Board issued a decision, Stericycle, 372 NLRB No. 113 (2023), wherein it adopted a new standard related to employer policies.   In short, the Board determined that if an employer rule or policy has a reasonable tendency to chill employees from exercising their rights, it is presumptively unlawful. Although the employer has the ability to prove a defense, this new employee-friendly standard grants the Board broader authority to attack employer policies.

The Felhaber firm has been carefully monitoring the Board’s enforcement activities.   Unfortunately, we are seeing an increased number of citations.  In a recent example, the Board faulted an employer for maintaining a wage disclosure policy that tracked almost identically the requirements of Minnesota Statutes Section 181.172.     Nonetheless, and despite the existence of the Minnesota law, the Board found that certain statements in the policy violated the federal National Labor Relations Act.

Unfortunately, we expect the Board will continue to aggressively scrutinize employer policies.   We are encouraging our clients to contact a member of the labor and employment group to discuss the impact of Stericycle and to review and revise (as necessary) certain employment policies.

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The first method for obtaining representational status is for the union to obtain “union authorization cards” from a majority of workers and demand recognition from the employer.  If the employer fails to act within 14 days of the union’s demand, then the NLRB will consider the employer to have waived its right to a secret-ballot election and, if the union truly represents a majority, then the employer will have violated the NLRA by failing to bargain with the union.  Under Cemex, employers can no longer sit idle if a union presents them with a demand for recognition and proof of majority status.

The second method for obtaining representational status is if the employer commits “any” unfair labor practice (“ULP”) that “requires setting aside the election.”  Under Cemex, the Board will order the employer to bargain with a union – even if the union lost the secret-ballot election – if the Board determines that the employer committed “any” ULP that invalidates the election.  Before Cemex, the Board would issue bargaining orders only in extreme cases of employer misconduct and only if the Board’s traditional remedies were found to be insufficient.

Background

The case involved a bargaining unit of approximately 366 ready-mix cement truck drivers and trainers in southern California and Las Vegas.  In December 2018, the Teamsters gathered union authorization cards signed by at least 207 drivers (or 57% of the unit) and demanded that the employer recognize the union.

As is typically the case, the employer ignored the union’s demand and the union eventually filed an election petition (called an “RC-petition”) with the NLRB.  A secret-ballot election was held in March 2019 and the drivers voted 179 to 166 against being represented by the Teamsters.

Following the election, the union challenged the election results and alleged that the employer engaged in substantial ULPs during the “critical period” of the organizing campaign.  After reviewing the evidence, the Board concluded that the employer “engaged in a large number of severe unfair labor practices and otherwise coercive conduct throughout the critical period.”

While a re-run election is the typical relief for ULPs, the Board concluded that a “Gissel bargaining order” was appropriate under the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).  Under Gissel, the Board will issue a bargaining order if “the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.”

Rather than simply issuing the Gissel bargaining order, the Board used the case as an opportunity to create two new mechanisms for unions to represent workers without a secret-ballot.  Each is described below.

Employers Can No Longer Ignore Union Demands for Recognition

In the past, if a union presented an employer with union cards signed by employees demonstrating that the union represented a majority of workers, the employer was well within its rights to ignore the union’s demand.  Instead, if the employer refused to voluntarily recognize the union, then the onus was on the union to file an election petition (called an “RC-petition”) with the NLRB in order to obtain a secret-ballot election.

In Cemex, the Board flipped the script.  Specifically, the Board held that employers have 2 weeks to file their own petition for an election (called an “RM-petition”) if a union presents it with signatures or union authorization cards from a majority of unit employees.  As the Board explained:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly[] files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).[]

The Board noted that it will “normally interpret ‘promptly’ to require an employer to file its RM petition within 2 weeks of the union’s demand for recognition.”

Under Cemex, the burden is now on the employer to petition the NLRB for a secret ballot election by filing an election petition (called an “RM-petition”) with the NLRB.  If an employer fails to do so within 14 days, then the NLRB will find that the employer violated the NLRA by failing to bargain with the Union.  In fact, if the union files a ULP based on the employer’s refusal to recognize and bargain with the union, the NLRB will likely order the employer to begin collective bargaining.

“Any” ULP During Election Period May Result in a “Cemex Bargaining Order”

As noted above, the Board’s standard for issuing bargaining orders under the Supreme Court’s decision in Gissel was limited to unique circumstances where the employer engaged in substantial and pervasive ULPs during the critical period before the union election.  Indeed, courts reviewing such orders would require the Board to review the following factors: “(1) the employer’s unfair labor practices so undermined the Union’s majority that conducting a fair election would be unlikely; (2) the employer’s unlawful conduct was likely to continue; and (3) the ordinary remedies of back pay, reinstatement, and posting of notices would be inadequate to ensure a fair election.”

In Cemex, the Board held that it will order the employer to bargain with a union – even if the union lost the secret-ballot election – if the Board determines that the employer committed “any” ULP that “requires setting aside the election.”  According to the Board,

[I]f the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. . . .  If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.

In other words, under Cemex, the Board will recognize the union based on signed authorization cards – even if the union lost the election.

Having concluded that the employer violated the NLRA by “failing and refusing to recognize and bargain collectively with the Union . . . while engaging in [numerous ULPs that] undermined the Union’s support and prevented a fair rerun election,” the Board ordered the employer to “meet with the Union on request and bargain in good faith concerning the terms and conditions of employment of the bargaining unit employees, and, if an agreement is reached, embody such agreement in a signed contract.”

Retroactivity and Next Steps

The Board announced that it will apply its decision retroactively “to all pending cases in whatever stage.” In fact, BNA reports that one union has already requested a so-called “Cemex bargaining order” against Trader Joes based on alleged ULPs during the union election.

While the Cemex decision will certainly be appealed and the new paths to unionization will face judicial scrutiny, the decision is the “law of the land” as far as the NLRB is concerned unless or until it is overturned by the Supreme Court.

Bottom Line

The Board’s decision in Cemex creates two new pathways for unions to become the bargaining representative of employees without a union election.  While these new mechanisms will certainly be challenged, employers need to be prepared to respond to any union organizing campaign as well as any demand for bargaining based on the union’s claim that it represents a majority of employees.

Employers would be wise to engage experienced labor counsel to ensure that their rights (and employees’ rights) are preserved during the process.

We will continue to monitor this issue as it develops.

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The case is important because an employee who engages in “workplace misconduct” may be insulated from discipline if the misconduct took place in connection with activity protected by the NLRA.

Background

In 2020, the Board in General Motors LLC, 369 NLRB No. 127 (2020), eliminated the “setting-specific standards” and concluded that “abusive conduct” is separable from the related Section 7 activity.  Instead, the Board found that the causation analysis of the Board’s decision in Wright Line should be applied because there was a dispute over whether the discipline was motivated by activity protected by the NLRA or the “abusive conduct.”  According to the Board, “[u]nder this approach, the Board will properly find an unfair labor practice for an employer’s discipline following abusive conduct committed in the course of Section 7 activity when the General Counsel shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity.”

The Board’s General Motors decision overruled three context-specific standards previously established by the Board: (1) the four-factor test in Atlantic Steel, 245 NLRB 814 (1979), which governed employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test in Pier Sixty, LLC, 362 NLRB 505, 506 (2015), which governed social-media posts and most cases involving conversations among employees in the workplace; and (3) the standard in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), which governed picket-line conduct.

Board Finds that NLRA Provides Room for “Employee Misconduct”

In Lion Elastomers, the Board overruled the Board’s decision in General Motors, explaining:

In erasing the fundamental distinction between misconduct committed during protected activity and misconduct unconnected with such activity, the General Motors Board abandoned the Board’s statutory function of determining the scope of protection for Section 7 activity. It instead granted new power to employers to effectively determine, based on their own individual practices and preferences, the scope of protected activity under the National Labor Relations Act. Moreover, because the General Motors Board failed to define “abusive conduct,” it failed to cabin its decision to those instances involving only the most extreme misconduct and made Wright Line and the managerial prerogatives attached to it applicable whenever an employer ostensibly disciplines or discharges an employee for any “separable” conduct in the course of Section 7 activity.

. . .

Whatever the particular setting, the elevation of “civility” as a supposed statutory goal gives employers dangerous discretionary power over employees whenever they exercise their statutory rights in opposition to the employer’s interests. But just as Title VII is not “a general civility code for the American workplace,” neither is the National Labor Relations Act. It imposes no obligation on employees to be “civil” in exercising their statutory rights. And while the Act has always been understood to recognize that employers have a legitimate interest in maintaining order and respect in the workplace, it also authorizes the Board to balance that interest against employees’ Section 7 rights.[] Put somewhat differently, the Board–not employers–referees the exercise of protected activity under the Act.

Thus, the Board restored the “context-specific standards” established by the Board in (1) Atlantic Steel, 245 NLRB 814 (1979), (2) Pier Sixty, LLC, 362 NLRB 505, 506 (2015), and (3) Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984).  As a result, if an employee engages in “misconduct” during the employee’s exercise of protected concerted activity, the NLRB will utilize these context-specific tests to establish whether the employee’s conduct lost the protection of the NLRA.

For example, prior to 2020, the Board issued several decisions finding that employees who engaged in “employment misconduct” were protected from discipline by the NLRA because their misconduct took place as part of activities protected by the NLRA:

• • Tampa Tribune, 351 NLRB 1324 (2007)—The Board found that an employee’s reference to a vice president as a “stupid f****** moron” retained protection of the NLRA under the four-factor test in Atlantic Steel.
  • Starbucks Corp., 355 NLRB 636 (2010)—The Board found that an employee yelling at an off-duty manager in front of customers that “[y]ou can go f*** yourself, if you want to f*** me up, go ahead, I’m here,” did not lose the protection of the NLRA under the four-factor test in Atlantic Steel.
  • Felix Industries, 331 NLRB 144 (2000)—The Board found that an employee who called his supervisor a “f****** kid” three times and insisted he did not have to listen to him did not lose the protection of the NLRA under the four-factor test in Atlantic Steel.
  • Cooper Tire & Rubber Co., 363 NLRB 1952 (2016)—The Board found that a picketer who said to black replacement workers, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” did not lose the protection of the Act under Clear Pine Mouldings.

Bottom Line

In overturning the Board’s decision in General Motors, the Board muddies the water regarding the discipline of employees for workplace misconduct if the misconduct occurs in connection with activity otherwise protected by the NLRA.  Thus, employers should exercise caution and consult with experienced labor counsel if they are faced with a disciplinary issue that also involves activity protected by the NLRA.

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The General Counsel’s memo is broken down into three categories of cases that must be referred to Advice.  The first category is “cases and subject matter areas where, in the last several years, the Board overruled legal precedent.”  The second category includes “other initiatives and areas that, while not necessarily the subject of a more recent Board decision,” are nevertheless ones the General Counsel “would like to carefully examine.”  The final category identifies “other casehandling matters traditionally submitted to Advice.”

Cases and Subject Matter Areas Where the Board Recently Overruled Legal Precedent

In the memo, the General Counsel opined that “over the past several years, the Board has . . . overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.”  The memo includes the following subject matter areas for review:

• Employer handbook rules.  Specifically, cases involving the applicability of The Boeing Co., 365 NLRB No. 154 (2017) to confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, and no camera rules.
• Confidentiality provisions/Separation agreements and instructions.  Including cases involving the applicability of Baylor University Medical Center, 369 NLRB No. 43 (2020), which found that separation agreements that contain confidentiality and non-disparagement clauses, as well as those prohibiting the departing employee from participating in claims brought by any third party against the employer in return for severance monies, lawful.
• Protected concerted activity.  Including cases involving the applicability of Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), which, according to the General Counsel, “narrowly construed what rises to the level of concerted activity and what constitutes mutual aid or protection within the meaning of Section 8(a)(1).”
• Union access.  Including cases involving the applicability of Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019) and UPMC, 368 NLRB No. 2 (2019), which affirmed employers’ rights as property owners to limit access to their premises.
• Union dues.  Including cases involving the applicability of Valley Hospital Medical Center, 368 NLRB No. 139 (2019), which found that an employer may lawfully cease checking off and remitting union dues unilaterally following contract expiration.
• Employee status.  Including cases involving the applicability of SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which placed emphasis on the significance of entrepreneurial opportunity when determining whether an individual is an independent contractor.

Other Areas and Initiatives

In addition to areas where the Board had recently overturned precedent, the General Counsel also identified other subject matter areas that she would “like to carefully examine” that must be submitted to Advice.

• Employee status.  Including cases involving misclassification of workers as independent contractors and the Act’s coverage to individuals with disabilities.
• Weingarten.  Including cases involving United States Postal Service, 371 NLRB No. 7 (2021), where the Board refused to find a pre-disciplinary interview right to information and other cases involving the applicability of Weingarten principles in non-unionized settings.
• Employer duty to recognize and/or bargain.  Including cases involving surface bargaining, refusal to furnish information related to a relocation, and cases involving the applicability of Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), which permits mid-term withdrawals of recognition where they occur after the third year of a contract of longer duration.
• Employees’ Section 7 right to strike and/or picket.  Including cases involving intermittent strikes and employers’ permanent replace of economic strikers.
• Remedies and compliance.  Including cases involving make-whole remedies and a discriminatee’s obligation to search for interim employment.
• Employer interference with employees’ Section 7 rights.  Including cases involving instances where an employer tells an employee that access to management will be limited if employees opt for union representation and where an employer threatens plant closure.

Bottom Line

The General Counsel’s memo, which comes on the heels of two union lawyers being confirmed by the Senate to Board positions, should be a clear signal that significant changes to labor law precedent are fast approaching.  We will continue to monitor the situation and report any further developments.

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Background

The case, College Bound Dorchester, involved workers at a Boston education-related nonprofit who participated in a mail-ballot election last summer to determine whether they would unionize with a Service Employees International Union affiliate.  Six workers voted in favor of unionization, six workers voted against it, and seven ballots were challenged.  In the event of a tie, the unionization effort would fail.

The Acting Regional Director in Boston sustained the challenges to six of the ballots, finding that they had been cast by workers who were fired about six weeks before the election.  The remaining challenged ballot, which would determine the election, was cast by Alberto Quesada.  The employer challenged Quesada’s ballot on the grounds that the signature on the ballot envelope was illegible and did not match known examples of Quesada’s signature.

In support of its challenge, the employer submitted seven documents bearing Quesada’s signature, including his IRS W-4 form, his direct deposit authorization, and his I-9 employment eligibility verification.  After reviewing these documents, the Regional Director stated:

In addition to the lack of evidence of fraud involved in the submission of Quesada’s ballot, I also conclude that the signature on the ballot is that of Quesada.  Exemplars provided by parties of Quesada’s signature include horizontal lines above and beneath his signatures on those items.  Notwithstanding the Employer’s assertion to the contrary, a horizontal line appears on the upper portion of the signature on the envelope.  An examination of the envelope also demonstrates that the “Q” in Quesada’s typical signature and dots appear on the signature on the envelope, albeit at the beginning of the signature.  I also note that the uneven terrain of the envelope likely contributed to the comparative messier signature than appears on the flatter contours of the documents provided by the Employer.

Given the foregoing, the Regional Director overruled the employer’s objection to Quesada’s ballot.

The Decision

The Board began its analysis by noting that the requirement that employees sign the outer envelope in which a mail-in ballot is returned to the regional office is intended to “safeguard the integrity of mail ballot elections” by ensuring the ballot can be identified as cast by an eligible employee.  Evidence that the signature on a mail ballot envelope varies significantly from known examples of an employee’s signature may “raise substantial and material issues regarding the identity of the person who marked the ballot enclosed within.”  In this case, the Board found that the “evidence presented by the Employer . . . clearly raises such issues with respect to the ballot in question here.”

Specifically, the Board found that the Regional Director improperly dismissed significant differences between the signature on Quesada’s mail ballot envelope and the examples provided by the employer.  For instance, the signature on the envelope “had one horizontal line across the body of the signature, whereas the seven known examples all have two horizontal lines.”  The Board also took issue with the Regional Director’s finding that “the envelope signature was ‘likely’ messier due to the ‘uneven terrain of the envelope,’” as there was no evidence to support this speculation.  Finally, the Board noted that the examples of Quesada’s signature provided by the employer were “very similar to each other, suggesting a high degree of consistency in the manner in which Quesada normally signs his name.”  Given this, the fact that the signature on the envelope varied from the other examples raised significant issues “regarding whether the ballot of Quesada was cast by an eligible voter.”

In short, the Board ruled that the Regional Director’s determination that there was no significant discrepancy between the signature on the ballot envelope and multiple, consistent examples of Quesada’s signature “was clearly erroneous.”  Accordingly, the Board remanded the case to the Regional Director to conduct a hearing regarding the employer’s challenge to Quesada’s ballot.

Bottom Line

The Board’s decision highlights the NLRB’s concern with maintaining the integrity of its mail-in voting system.  As NLRB Chair Lauren McFerran has said, safeguarding mail elections is an important part of modernizing the agency’s voting procedures, especially as votes by mail potentially become more prevalent outside of the pandemic and other unusual circumstances.

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The Contract Bar Doctrine

In Mountaire Farms, Inc., the Board previously issued a notice inviting interested parties to file briefs regarding whether the Board should continue to follow the contact bar doctrine, or if it should modify or discontinue the doctrine altogether.

Under the contact bar doctrine, a valid collective bargaining agreement is a bar to a representation petition filed during the term of the agreement, up to a maximum period of three years. For example, employees are unable to file a decertification petition asserting that they no longer wish to be represented by the union while the contact bar is in effect.

As a corollary to the contract bar doctrine, the Mountaire Farms decision additionally discussed an exception known as the “window period,” wherein a decertification petition may be filed during the 30-day “window” that begins 90 days and ends 60 days before an agreement expires, or, in the case of health care employers, during the 30-day window that begins 120 days and ends 90 days prior to contract expiration.

The contract bar has long been criticized by certain workers’ rights groups, including the National Right to Work Legal Defense Foundation, who allege that the doctrine infringes upon employees’ statutory right under the National Labor Relations Act to choose their bargaining representative, causing employees to remain represented by a union which the majority no longer wish to be a part of. Conversely, supporters of the doctrine have argued that the contract bar period provides stability in the relationship between a union and management and promotes industrial peace, both of which have long been noted by the Board as being underlying goals of the NLRA.

Mountaire Farms, Inc.

The Petitioner in Mountaire Farms was a bargaining unit employee who wished to decertify the union as her unit’s exclusive representative, but who filed her decertification petition within the contract bar period but not within the applicable window period. When her decertification petition was dismissed pursuant to the contract bar, she appealed the decision and challenged the doctrine altogether.

Despite inviting briefs regarding the validity of the contract bar doctrine moving forward, the Board held that the contract bar properly barred the employee’s petition and held that neither the window period nor contract bar doctrines should be modified. Interestingly, Board Member William Emanual noted in a footnote that he would have reduced the contract bar period to 2 years and increased the window period to 60 days, although he did not explicitly dissent from the majority opinion, despite stating that his proposed modifications “would strike a more appropriate balance between ‘the statutory goal of promoting labor relations stability’ and the Board’s ‘statutory responsibility to give effect to employees’ wishes concerning representation.’”

Bottom Line

The contract bar doctrine is long-standing and remains the law of the land, despite the Board calling its future into question last year by inviting briefs regarding potential modification. For employers, this recent decision provides a reminder that once a union is certified as the exclusive representative and a collective bargaining agreement is reached, the union is generally here to stay for the duration of the CBA.

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Background

According to Madison’s complaint, SEIU had posted a press release online titled “Massive Wage Theft Scheme Alleged at Downtown St. Paul Buildings Run by Madison Equities.” The press release stated that security officers at buildings managed by Madison had made “wage theft complaints” to the Minnesota Attorney General and that Madison “had employees work 40 hours under one company” and then work for a different company “for time that should have been overtime time-and-a-half pay,” resulting in the workers being underpaid by thousands of dollars.  Madison alleged that the press release (and a flyer making similar statements) contained false and defamatory statements that interfered with its business relationships.

In response, SEIU asserted that Madison’s state-law defamation claims were preempted by the National Labor Relations Act (“NLRA”).  Based on that argument, they moved for judgment on the pleadings.  The district court denied the motion, concluding that Madison’s claims were not preempted by federal law.

The Court of Appeals’ Decision

The Court of Appeals ultimately ruled in favor of Madison and found that its state-law claims were not preempted.

SEIU argued that Madison’s claims were preempted under the Garmon preemption doctrine.  The court explained that, under Garmon, state-law claims are presumptively preempted if 1) they concern conduct that is actually or “arguably” protected under Section 7 of the NLRA or 2) prohibited under Section 8 of the NLRA.  Section 7 protects employees’ rights to organize, while Section 8 prohibits unfair labor practices by employers and labor organizations.

The Court analyzed the conduct at issue – i.e., SEIU’s speech criticizing Madison’s wage practices – to first see if that conduct was protected by the NLRA.

Section 7 of the NLRA broadly provides that employees have the right to form, join, or assist labor organizations, and to otherwise engage in protected concerted activities pertaining to their terms and conditions of employment. The Court first concluded that SEIU could not identify a single provision within Section 7 that arguably protected their conduct, and further rejected the Union’s citations to prior decisions which held that Section 7 provides unions with freedom-of-speech protections on the basis that those decisions were decided in the context of union-organizing efforts, which was not the case in the matter at hand.

The Court further noted that SEIUs conduct was not a violation of Section 8 of the NLRA, and therefore Madison would not have been able to seek protection from the National Labor Relations Board, leaving the Court as its only avenue for relief.

SEIU further attempted to broadly argue that “a labor organization’s speech criticizing conditions of employment is always preempted and that Garmon preemption forecloses state court jurisdiction over any labor dispute.”  The Court of Appeals was again unpersuaded, stating SEIU’s “attempt to invoke Garmon preemption based on the alleged existence of a labor dispute without articulating how their conduct is either protected or prohibited under the NLRA is inconsistent with Minnesota precedent.”

Because SEIU could not identify a provision of the NLRA which arguably protected or prohibited their public statements regarding Madison’s alleged wage theft, Madison’s state-law tort claims were held to not be preempted under Garmon.

Bottom Line

The Court of Appeals’ decision, while unpublished and therefore nonprecedential, makes clear that if a party to a lawsuit wishes to argue that state-law claims are preempted by the NLRA, they must be able to point to specific provisions within Section 7 or 8 of the NLRA that arguably protect or prohibit the conduct at issue, thereby placing the dispute within the jurisdiction of the NLRB.

Counsel for SEIU has indicated they will seek review from the Minnesota Supreme Court.  We will continue to monitor this case for any further developments.

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On Monday, President Biden appointed veteran NLRB attorney Peter Sung Ohr to serve as Acting General Counsel of the NLRB.  While Ohr will look to rollback Robb’s employer-friendly policies, Robb is weighing whether to challenge the legality of his firing and employers are left asking what the whole mess means to them.  In short, Ohr’s appointment means a shift in federal labor policy and more uncertainty about what is to come.

NLRB’s Top Enforcement Officer

The NLRB’s General Counsel decides which labor disputes to prosecute and crafts the legal theories staff attorneys present to the NLRB, giving the office significant power to shape federal labor policy.

Since taking office in 2017, Robb had advanced numerous business-friendly interpretations of the NLRA, including:

• A “friendly” settlement of the McDonald’s lawsuit over whether franchisees are joint employers under the NLRA;
• Eliminating the “micro units” established by the NLRB in Specialty Healthcare;
• Eliminating the joint employer standard established by the NLRB in Browning-Ferris;
• Limiting access rights of third-party union organizers to the employer’s property; and
• Allowing employers to cease deducting union dues at expiration of the CBA.

Certainly, Ohr will look to tee up cases that reverse these decisions.  However, Ohr may have to wait for President Biden and the Senate to appoint Democratic members to the five-member NLRB.  At present, Republican members have a 3-to-1 majority on the NLRB.

If Robb’s Firing Was Unlawful, Then ULPs May Be Subject to Challenge

Robb is reported to be considering challenging the legality of his termination.  Since no General Counsel has been terminated, courts will have to decide whether the president has the legal authority to remove the NLRB’s General Counsel prior to the expiration of his term.

If the firing was unlawful, then any unfair labor practice complaints issued by the Acting General Counsel may be invalid.  Thus, employers that receive ULPs will want to be sure to challenge the validity of any action by the Acting General Counsel.

Bottom Line

While Ohr’s appointment certainly means a shift in federal labor policy toward a more “labor-friendly” agenda, it also means that there is more uncertainty as to whether the actions of the Acting General Counsel are lawful given his predecessor’s unceremonious removal from office.

We will continue to monitor this situation as it develops.

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Now, the National Labor Relations Board (NLRB) has shed more light on this question by changing the standard they will use to evaluate whether discipline or discharge for such outbursts during protected activity is legal under the National Labor Relations Act (“the Act”).

What Happened

In the case at hand, the employee was a union committeeperson at a General Motors facility in Kansas. He was suspended on three occasions for inappropriate outbursts:

–  The first incident involved a charged discussion with his manager about overtime during which he yelled and told the manager to “shove it up [his] f******’ ass”;

–  The second suspension arose from a meeting with union committee members and managers where the employee used profanity and made racially-charged statements, including calling his manager “Master” and stating that the manager wanted him “to be a good Black man.”; and

–  The third incident, during another meeting with managers and union committee members, involved the employee playing loud music on his phone that contained profanity and racially and sexually offensive lyrics for 10 to 30 minutes.

Previously, the NLRB used three separate, context-specific standards to evaluate whether an employer lawfully disciplined an employee based on outbursts that occurred during the course activity protected by the Act. If the outburst occurred in the workplace, the NLRB evaluated the place of the discussion, its subject matter, the nature of the outburst and whether it was provoked by the employer’s unfair labor practice. If the outburst took place in the context of a post on social media, they simply looked at the totality of the circumstances. Finally, if the abusive outburst occurring on a picket line, the NLRB would analyze whether non-strikers would have reasonably been coerced or intimidated by it.

What the NLRB Will Do Now

In this General Motors case, the NLRB decided to scrap the three context-specific standards on the basis that they yielded inconsistent outcomes, failed to take into account employers’ arguments that they would have disciplined the employee regardless of when the activity took place, and potentially ran afoul of antidiscrimination laws. Now, they will apply their familiar burden-shifting analysis (called the “Wright Line test” for the case in which it was established). Under this analysis, the initial burden for establishing that an employer violated the Act for disciplining or terminating an employee for offensive outbursts in the course of protected activity requires three elements:

1. The employee engaged in activity protected by the Act;
2. The employer knew of the protected activity; and
3. There is a causal relationship between the discipline and the protected activity.

Once this initial showing is made, the burden shifts back to the employer to show that they would have taken the same action in the absence of the employee’s protected activity.

As a result of this decision, the NLRB remanded the case for reevaluation under the Wright Line test.

Bottom Line

This decision should provide employers more confidence to address employees’ abusive, profane, or racist outbursts, even if they occur during the course of otherwise protected activity. However, employers will still need to be deliberate in their analysis of a given situation, since Wright Line is such a fact-specific analysis.

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For the most part, the new Rules reversed revisions to the Board’s standard election practices which were implemented by the Obama-Era Board in 2014, and generally provide employers with more time to prepare once served with a Notice of Election.

Summary of Changes

The most noteworthy new changes to be aware of are summarized below:

Caveat – Rocky Road to Implementation

As a final note, these newly implemented rules have faced legal challenges. Specifically, in March of this year, the AFL-CIO sought an injunction in the United States District Court for the District of Columbia, requesting Court intervention enjoining the revised Rules from going into effect. The AFL-CIO argued that the Board did not follow proper administrative procedure in implementing the new Rules, specifically by failing to provide a required public notice and comment period.

On May 30, 2020, the day before the Rules were scheduled to go into effect, the Court issued a partial injunction, preventing a number of provisions of the rules from becoming effective. Specifically, the Court blocked the following provisions from going into effect:

1. The right for parties to litigate voter eligibility and inclusion issues prior to the election.
2. A prohibition of scheduling an election before the 20^th business day after the date of the direction of election.
3. A change that employers furnish the required voter list within five business days, rather than two business days as required under the 2014 Rule.
4. A limitation on a party’s ability to only select election observers from the bargaining unit; and
5. A prohibition on Regional Directors issuing certifications following elections while a request for review is pending, or during the time when parties may still otherwise request review.

The Board subsequently issued a press release stating that it would appeal the Court’s injunction as soon as possible. Further, the following day, June 1, 2020, the NLRB’s General Counsel issued a Guidance Memorandum affirming that the portions of the revised rules which were not enjoined by the Court would be implemented effective immediately including those listed in the table above.

Bottom Line

For now, employers are able to take advantage of the provisions of the new Rules which were not affected by the Court’s Order. This is good news for any employers facing a Union election, as the revised Rules provide some relief from the “rapid-fire” election procedures which were implemented under the Obama-era Board.

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Many of the changes revise the 2014 Obama-era Board’s so-called “quickie” election rules which imposed tight procedural deadlines and compressed timelines for scheduling elections. Relaxing many of these key deadlines should make it easier and less stressful for employers to respond, and should allow for issues presented by the petition to receive more careful review.

The key changes to the representation procedures include:

Scheduling of Pre-Election Hearings

Pre-election hearings will now generally be scheduled 14 business days from the notice of hearing. NLRB Regional Directors will also have discretion to postpone pre-election hearings for good cause.  This change will allow for a more thorough review of and preparation for relevant issues to be presented at the hearing.

Under the current rules that will be replaced (we will call them the “old rules”) pre-election hearings were scheduled for 8 days from the notice of hearing.

Posting Notice of Petition for Election

Under the new rules, the employer will be required to post and distribute the Notice of Petition for Election within 5 business days after being served with the notice of hearing.

Under the old rules, this posting had to be up within 2 business days.

Statement of Position Deadline

Non-petitioning parties – which typically are employers responding to union election petitions – will have 8 business days to serve and file the statement of position from receipt of the notice of hearing. Additionally, Regional Directors will have the discretion to grant an extension to serve and file the statement of position.

Under the old rules, employers had the onerous task of serving and filing the statement of position by noon one day before the pre-election hearing – usually 7 calendar days after being served with the notice of hearing.

Petitioner’s Statement of Position

The new rules now require petitioning parties themselves – typically labor unions – to serve and file their own statement of position responding to any issues raised in the non-petitioning party’s statement of position. This statement will be due at noon 3 business days before the hearing on the election petition is scheduled to take place. The new rule also permits timely amendments to the petitioner’s statement of position on a showing of good cause.

Under the old rules, petitioners were only required to respond orally to the non-petitioner’s statement of position at the start of the pre-election hearing.  The requirement for a written response should aid in minimizing and clarifying the issues to be litigated.

Issues Covered at Pre-Election Hearing

Disputes regarding the proper scope of the bargaining unit, supervisory status, and voter eligibility will be addressed at the pre-election hearing and resolved by the Regional Director before he or she orders an election. However, the parties may still agree to allow disputed employees to vote subject to challenge.

Under the old rules, these issues did not need to be resolved prior to an election.

Scheduling of Elections

While Regional Directors will still schedule elections for the earliest practicable date as was standard under the old rules, they typically will not schedule an election before the 20^th business day after the date and direction of election.

This change represents a return to the standards in place before the 2014 Obama-era rules.

Bottom Line

NLRB Chairman John F. Ring said that the new rule represents “common sense changes to ensure expeditious elections that are fair and efficient. The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”  Let’s hope his prediction is accurate.

The final rule is scheduled to be published on December 18, 2020, and will become effective 120 days after publication (April 16, 2020) unless litigation by pro-labor advocacy groups delays implementation.

The post Employers Cheer Labor Board’s New Rules on Union Elections appeared first on Felhaber Larson.

In a 3-1 decision in M.V. Transportation, Inc., the NLRB’s Republican majority adopted the “contract coverage” standard and abandoned their long-held “clear and unmistakable waiver” standard for considering whether an employer’s unilateral action is permitted by the parties’ labor contract.

The lone Democratic member of the Labor Board dissented, claiming the ruling will “impose a new standard that gives employers wide berth to make unilateral changes in represented employees’ terms and conditions of employment without first bargaining with their union.”

The New Standard

Employers are required under the National Labor Relations Act (NLRA) to bargain in good faith with their unions about so-called “mandatory subjects” of bargaining, such as wages, hours, and other terms and conditions of employment. An employer who makes a material, substantial, and significant change regarding a mandatory subject of bargaining without first providing the union notice and a meaningful opportunity to bargain about the change to agreement or impasse violates the NLRA, absent a valid defense.

One such defense for employers is that by virtue of the parties’ agreement, the union has waived its right to bargain over particular change or type of change. It is this question—how an employer is able to prove that a union has waived its right to bargain over a topic—that the Board has substantially revised.

Under the newly implemented “contract coverage” or “covered by the contract” standard, the NLRB will examine the plain language of the parties’ collective bargaining agreement to determine whether the change made by the employer was within the “compass or scope” of contractual language granting the employer the right to act unilaterally. If it was, the NLRB will honor the plain terms of the parties’ agreement and the employer will not have violated the Act by making the change without bargaining.

The NLRB explained the “contract coverage” test, which it will apply retroactively to all pending cases, by way of the following example: if an agreement contains a management-rights provision that broadly grants the employer the right to implement new rules and policies and to revise existing ones, the employer would not violate the NLRA by unilaterally implementing new attendance or safety rules or by revising existing disciplinary or off-duty-access policies.

In both of the above instances, the employer’s changes would have been within the compass or scope of a contract provision granting the employer the right to act without further bargaining with the union.

Previous Test Criticized

This test is notably different than the now-abandoned “clear and unmistakable waiver” standard that has been in place since 1949.  Under that standard, the NLRB would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue.

This standard has been criticized for many years by the U.S. Court of Appeals for the D.C. Circuit, which has review over all NLRB decisions.  For example, in a 1992 decision, the D.C. Circuit observed that “the union would almost invariably prevail . . . because it almost always could find some ambiguity in the relevant contractual language.”

Given the D.C. Circuit’s long-standing refusal to enforce NLRB decisions that applied the waiver standard, as well the Seventh and First Circuits’ rejection of the standard, Chairman John Ring, in writing for the majority, described the NLRB’s past “dogged adherence to the clear and unmistakable waiver standard as an exercise in futility.”

In the case at issue, the NLRB considered whether a Las Vegas facility of transit company MV Transportation, Inc., made unlawful unilateral changes when it revised and implemented its existing work policies. They concluded that the broad language of the management rights clause in the parties’ contract covered all of the employer’s unilateral changes and that the company therefore did not violate the NLRA.

Bottom Line

This decision does not relieve employers of their obligation to bargain in good faith with unions regarding employees’ wages, hours and other terms and conditions of employment.

However, when collective bargaining agreements contain management rights clauses that broadly authorize an employer to change work rules or conditions, it will be easier for employers to argue that a unilateral change was encompassed by the scope of the contract language granting an employer the right to do so.

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Jeannie Edge began driving for Velox, a company that picks up medical samples from doctor’s offices, clinics and hospitals and delivers them to a large diagnostic medical lab for analysis.

Contractor or Employee?

Within a couple of months, Edge began joining in with other drivers complaining about the issuance of restrictive new policies for the drivers.  Edge opined that she was being micromanaged and was being treated more like an employee than an independent contractor. She even emailed her manager to pass along that another employee had recently contacted the Internal Revenue Service about their classification as contractors.

Subsequently, the company issued the drivers a “Route Driver Agreement” with a number of new directives for carrying out their roles. During a discussion about the agreement, Edge’s manager advised her that she should “drop the employee crap.” A few days later, the manager demanded that Edge sign and return the agreement, to which Edge responded that she would as soon as her attorney approved the agreement.  Edge was terminated shortly thereafter.

Edge filed charges under the National Labor Relations Act (NLRA) alleging that the company interfered with her right to engage in protected concerted activities, first by misclassifying her as an independent contractor and then by terminating the working relationship.  She claimed that misclassification is inherently coercive because it conveys to workers that they have no rights under the Act when in fact they do. She then argued that had she been properly classified as an employee, her advocacy on behalf of the other drivers would have constituted protected concerted activity preventing her termination.

Misclassification Not Unlawful

The NLRB disagreed, explaining that the decision to classify a worker as an employee or independent contractor involves complex legal analysis often involving multiple legal standards.  A ruling that misclassification is inherently unlawful would punish employers for honest errors and discourage businesses from utilizing the services of legitimate independent contractors.

The NLRB concluded that merely telling workers that they are independent contractors is neutral in the sense that it does not tell employees that union activities are futile, nor does it threaten or imply reprisal for any such behavior.  Therefore, erroneously identifying workers as independent contractors should not be considered an unfair labor practice under the NLRA.

Naturally, employee advocacy groups decried the decision as one that hinders union organizing since workers will not realize they have a right to try to do so. They chastised the NLRB for focusing on the protection of employer rights instead of employee rights, which they contend was the basis for enacting the NLRA in the first place.

Business groups have expressed relief that misclassification, which already exposes employers to significant monetary liability, will not exact more punishment for what often is simply a mistake. Interestingly, though, one business group in the construction industry sided with the employee advocacy groups, claiming that imposing further penalties for misclassification would help alleviate the competitive advantage that some employers obtain from intentionally misclassifying their workers.

Notwithstanding the ruling on misclassification, Edge did not end up empty-handed.  The NLRB found that she was indeed misclassified and should have been considered an employee.  As such, her termination violated her right under the NLRA to engage in protected concerted activities.  The NLRB ordered that Edge be reinstated with full back pay.

Bottom Line

An employer that misclassifies an employee as an independent contractor faces exposure in a variety of arenas, including failure to withhold taxes, nonpayment of benefits, possible unpaid overtime and failure to provide workers compensation coverage.  Thankfully, absent appeal to the federal courts, such employers will not face the added burden of unfair labor practice awards.

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Blocking Charges and Elections

Under current law, the NLRB will not proceed with union elections if there is a pending unfair labor practice charge which either 1) challenges the sufficiency of an election petition or 2) raises questions regarding whether or not the employees’ free choice has been impacted.

In many cases involving election petitions filed by employers to determine if a majority of employees still wish to be represented by an incumbent union, the union will file these sorts of charges (commonly labeled “blocking charges”) to delay the vote.  With the election blocked, the union gets more time (often months and occasionally a year or more) to campaign among the workers in the bargaining unit in an effort to persuade them to vote in the union’s favor.  With a long enough delay, some of the employees who originally sought the union’s ouster may have left the company, thereby allowing the union the chance to garner votes from the newer employees.

Board Proposes a Streamlined Approach

Under the proposed rule, the NLRB would no longer allow charges to block elections.  Instead, the election would proceed but the employees’ ballots would be impounded pending the outcome of the unfair labor practice charges.  If the charges are found to have no merit, the ballots would be counted and the election results would be announced.  If the charges are upheld, the ballots would not be counted and the election would be declared a nullity.

In a press release announcing and extolling the proposed amendments, NLRB Chairman John F. Ring stated “there are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections.”

The Notice of Proposed Rule Making is open to public comments until October 11, 2019.  Following receipt of public comments, the NLRB could decide to implement these changes or revise them further in light of the comments from the public.

Bottom Line

Should these changes go through employers will be able to obtain the benefits of their election petitions without having to endure the added campaign period that results from the union’s blocking charges.  This would allow for a more accurate assessment of whether the current employees truly wish to remain represented by their union

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As a matter of law, labor unions may not require employees to become dues-paying members.  Moreover, they can only collect fees from non-members for the purpose of covering the costs of representing them and bargaining on their behalf.

Background

In 2009, the United Nurses & Allied Professional (UNAP) union used money from its general operating fund to pay for UNAP’s political lobbying. Specifically, UNAP’s lobbying efforts related to seven bills in Vermont and Rhode Island. UNAP deemed these lobbying expenses “representational” and charged non-members for such expenses.

Later in 2009, Jeanette Geary (and several other employees) resigned from the United Nurses & Allied Professional (UNAP) union.  UNAP issued Geary a reduced fee and provided Geary a chart listing chargeable and non-chargeable amounts. UNAP’s lobbying activities were included in the chargeable amounts. Additionally, UNAP told Geary that the expenses were verified by a CPA, but UNAP did not provide verification of the CPA audit. Geary filed an unfair labor practice charge claiming UNAP violated the National Labor Relations Act by (1) charging Geary for UNAP’s lobbying expenses; and (2) failing to provide audit verification.

Lobbying Expenses

The NLRB, citing several U.S. Supreme Court cases, ruled that Section 8(a)(3) of the National Labor Relations Act (NLRA) “authorizes the exaction of only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor management issues.” The NLRB then narrowly defined which expenses may be deemed representational, explaining that lobbying is not representational just because it relates to matters that might be bargained about.  For an activity to be chargeable to non-members, it must be “necessary” to performance of the union’s statutory collective-bargaining obligation, and lobbying does not meet that test.

Audit Verification

The NLRB also concluded that UNAP violated the NLRA by failing to provide audit verification. Unions have a general duty to provide non-members enough information to appropriately object to dues charged to non-members. While courts differ widely in what information unions must provide, the NLRB ruled that a union must “provide audit verification to adequately assure the reliability of the financial information provided to objectors.” Under this test, because UNAP stated—but did not provide proof—that union expenses were verified by a CPA, the NLRB held UNAP violated the law.

Bottom Line

For years, unions have relied on money from both members and non-members to fund lobbying activities. This decision may work to curtail such activities and to require unions to go to greater lengths to prove audit verification.

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Under Section 7 of the National Labor Relations Act, employees have the right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” (emphasis added). It is an unfair labor practice for an employer to take adverse employment action against employees for exercising this right.

In order to receive Section 7 protection, the conduct in question must meet two elements: 1) the action must be “concerted,” i.e. undertaken for the benefit of a group, and 2) the action must be undertaken for the purpose of mutual aid or protection, typically meaning an effort to improve bargaining unit employees’ terms and conditions of employment. Employees often claim that they speak for their co-workers when they protest or complain, and it is up to the NLRB to determine when such actions are truly concerted.

Stingy Tippers Lead to Employee Complaints

The employees in Alstate Maintenance worked as skycaps at New York’s JFK International Airport, primarily assisting passengers with their luggage outside the entrance to the airport terminal. The bulk of a skycap’s compensation came from passenger tips. One of the skycaps, Trevor Greenidge, was instructed by his supervisor to assist with an arriving professional soccer team’s equipment. In front of his coworkers Greenidge stated “we did a similar job a year prior and we didn’t receive a tip for it.”

When the soccer team arrived, Greenidge and his three coworkers refused to assist with the team’s bags, causing the supervisor to seek assistance from baggage handlers from inside the terminal. The skycaps’ actions caused considerable embarrassment to the company, who subsequently terminated Greenidge and his three colleagues.

Greenidge brought an unfair labor practice charge before the NLRB alleging that by complaining to his supervisor while surrounded by other coworkers, he was engaging in protected and concerted activity and therefore could not be fired for doing so.

Greenidge had good reason to believe he would prevail. The NLRB’s most recent pronouncement in this sort of case came in 2011 when they ruled in Worldmark by Wyndham that an employee who protests publicly in a group meeting was, as a matter of law, “engaged in initiating group action” and therefore protected, even if that employee was the only protester.  Since Greenidge was offering up his protect in front of the other skycaps, it would be considered protected.

New NLRB, New Law

With a new administration and new members, the NLRB overruled their WorldMark decision, electing instead to revert back to the standard announced in 1984 in Meyer Industries when they announced “[i]n general, to find an employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” To find that a matter was a group concern and not merely a personal protest under this standard, the NLRB looks to the totality of the evidence to determine whether there was evidence of concerted activities including prior or contemporaneous discussion of the concern between members of the workforce.

Applying the Meyer Industries standard, the NLRB determined that Greenidge had not engaged in protected concerted activity. There was no evidence that this was a group protest, or that the skycaps had discussed this issue amongst themselves on any prior occasion. Instead, Greenidge was just offering up his personal feelings about his job assignment. Even though his protest was made in front of his colleagues and raised concerns that might have benefited them, the NLRB  concluded that Greenidge actions were not concerted and therefore were unprotected under the law.

Bottom Line

This case dramatically limits the opportunities for employee’s to claim that their actions are protected because they claim to be speaking for or on behalf of their co-workers.  They will now need to show that they were actually authorized to speak on behalf of their co-workers or produce evidence that their protest is made on their behalf.

In addition, the NLRB indicated that they “would be interested in reconsidering” other previous rulings that conflict with the standards announced in Meyers Industries.  Thus, there may be more big changes up ahead.

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The decision, SuperShuttle DFW, Inc., is considered a win for employers because it will now be easier to classify workers as independent contractors who therefore are not subject to unionization under the National Labor Relations Act.

A Return to Traditional Factors

According to the NRLB, Friday’s decision reaffirmed the NLRB’s adherence to the traditional common-law test, which considers 10 factors, including an employer’s control of the work and a worker’s skill, in determining employment status. The decision overrules FedEx Home Delivery, 361 NLRB No. 55 (2014) a case that had modified this test by “severely limiting” the significance of workers’ entrepreneurial opportunity for economic gain when analyzing whether they were contractors or employees, the NLRB stated.

While “entrepreneurial opportunity” is not a factor in the test, the NLRB explained in SuperShuttle DFW, Inc. that “entrepreneurial opportunity, like employer control, is a principle to help evaluate the overall significance” of the factors. Indeed, “common-law factors that support a worker’s entrepreneurial opportunity indicate independent contractor status; factors that support employer control indicate employee status.”

The SuperShuttle DFW, Inc. case dates back to 2010, when shuttle-van-driver franchisees at Dallas-Fort Worth Airport sought to unionize. In applying its renewed standard, the NLRB determined that the drivers were independent contractors and, accordingly, excluded from organizing a union.

The NRLB concluded the drivers were independent contractors by considering, among other factors, how they were compensated, their lack of supervision, the fact that they leased or owned their work vans, and because the drivers’ “nearly unfettered control” over their daily work schedules and working conditions provided them with significant entrepreneurial opportunity for economic gain.

Board Chairman John Ring, and Members William Emanuel and Marvin Kaplan, all Republican appointees, comprised the majority. Democratic appointee Lauren McFerran dissented.

Bottom Line

Friday’s decision applies only in circumstances where workers classified as independent contractors are seeking to organize a union. However, the NLRB’s test for determining employee status is just one of several Obama-era standards that the NLRB is reconsidering, and we could see a number of other important changes in the coming months.

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By and large, this is precisely what has taken place via issuance of General Counsel Advice Memoranda and Board decisions rolling back several Obama-era Board initiatives favorable to organized labor.

The More Things Change

However, it appears that not every Obama-era position is going to be overhauled. In North West Rural Electric Cooperative, a  three-member panel of the Board declined to support an employer who fired a worker for posting comments on a Facebook page devoted to safety practices for electrical lineman that was critical of his unnamed employer and of the industry in general.  This ruling perpetuates the Obama-era protections that have been applied to employee activities on social media.

The employer in this case decided to discharge the employee after learning of the derogatory Facebook post from unhappy co-workers who were critical of his comments and indicated they would prefer not to work with him.   In justifying the termination decision, the employer noted that the employee was previously disciplined for a bad attitude and being uncooperative, that his co-workers were upset by the post, and because it was justified under established work rules addressing employee attitude and conduct.

The More Some Things Stay the Same

The Board, however, concurred with the finding of an administrative law judge that the Facebook post was not merely griping by an unhappy employee but rather, protected concerted activity under Section 7 of the National Labor Relations Act.  For one thing, the Facebook page at issue was intended as a platform for employees engaged in electrical line work to discuss workplace safety issues.  As such, it seemed appropriate to conclude that the activity was “concerted” and was undertaken for the “mutual aid and protection” of other employees.  That the post may have angered co-workers instead of uniting them was not sufficient to overcome the fact that the employee at issue was engaged in concerted activity that should be protected.

It appears that the Trump Board is not likely to view employee social media activity any differently than the Obama Board.   When an employee’s individual post touches on the terms and conditions of employment, it is very likely to be viewed as protected activity even though the employee is acting alone and even the post is critical of his/her employer and/or coworkers.

Bottom Line

Employers confronted with such posts should review their content to determine whether they are defamatory or so offensive that they might exceed the protection afforded by Section 7.  Otherwise, until the Board changes its view, it may be best to leave this sort of social media activity alone.

The post It’s a New NLRB But Employee Social Media Protections May Be Here to Stay appeared first on Felhaber Larson.

What are Weingarten Rights?

The United States Supreme Court case of NLRB v. J. Weingarten, Inc. established that union-represented employees have the right to union representation during all “investigative interviews.” An investigative interview is an interview or meeting with management where an employee’s answers could subject them to discipline, or any interview or meeting where employees are asked to defend their conduct. If an employee has a reasonable belief that discipline may result from an investigation, they have a right to request that a union representative be present.

An employer does not have any obligation to inquire or ask whether an employee wishes to utilize their Weingarten rights.  Rather, the employee has the onus of affirmatively asserting the right to Union representation. However, there are no “magic words” to such a request – the NLRB has ruled that an employee is entitled to representation if they place their employer on sufficient notice that they desire representation.

The “On-Notice” Standard

The Circus Circus Casinos decision provides further guidance regarding when an employee’s conduct is sufficient to place their employer on notice that they want union representation. An employee was called into a disciplinary meeting, during which he informed his employer that he “had called the Union three times” regarding the investigation, that “the Union had not called him back,” and that “he was at the meeting without representation.” The Employer conducted the meeting despite these comments.

The NLRB determined that the employee’s statements should have placed the employer on notice that the employee wished to have union representation present, and therefore constituted a bona fide request for Weingarten representation. Noting that what constitutes a Weingarten request has traditionally been interpreted liberally, the NLRB affirmed the administrative law judge’s decision and held that the employer violated the National Labor Relations Act by conducting the meeting without a union representative.

Bottom Line

This case reminds us to listen carefully to what the employee is saying when called in for an interview.  If the employee talks about “wanting the union there”, “needing to call a union representative” or some other similar request, the employer should either 1) grant the request and delay the interview until a representative arrives, 2) deny the request and end the interview immediately, or 3) give the employee the choice of conducting the interview without representation or ending the interview.  In the event that an employer chooses to continue an interview after an employee asks for representation, or disciplines an employee for making such a request, that employer runs the risk of violating the National Labor Relations Act.

The post When Does An Employee Get Union Representation? appeared first on Felhaber Larson.

Though consistent with well-established standards for rules on employees wearing union insignia at work, the decision highlights the challenges facing healthcare employers on this issue.

The Standard

The Board’s well-established standard for wearing union insignia in health care settings is that absent special circumstances, rules prohibiting employees from wearing union insignia at work are presumptively unlawful.  However, rules prohibiting union solicitation, distribution of union literature, and/or wearing union insignia in direct patient care areas are presumptively valid.  The question often is whether the “special circumstances” exception permits a ban on such insignia outside the direct care areas.

In deciding against the employer’s rule, two of the Board members determined that the employer did not put forward sufficient evidence to show that the more broadly stated rule was necessary to avoid disruption and/or disturbance.  They dismissed the argument that the rule was justified because it provided “a standardized, easily-identifiable, customized, consistent and professional look in accordance with [the employer’s] business strategy of providing quality patient care.”

They also expressly rejected the argument that a rule requiring employees to remove union insignia before entering direct patient care areas would be impractical or disruptive of healthcare operations, noting that the items in question (badge reels) could be easily removed and exchanged prior to entering a direct patient care area.

Hope Offered By the Dissent

The one dissenting Board member offered an alternative analysis that gives hope that a different three-member panel in a future case may issue a decision friendlier to employer interests. The dissent noted, for example, that the rule in question and the manner in which it was enforced demonstrated that the rule was understood actually to apply only to “direct patient care employees” working in immediate patient care areas.

The dissent also contended that because the hospital’s policy was designed to “promote ‘an image of high quality, professional healthcare to the communities [the employer] serve[s.],’” it also fell within the special circumstances exception recognized by the Board.

Bottom Line

Until this decision is overturned, health care organizations should review dress code and grooming policies to determine if those policies could reasonably be interpreted to prohibit or limit wearing union insignia in non-direct patient care areas.  If so, and you feel that the policy is important, consider gathering the evidence you may need to demonstrate the policy is not overbroad and/or that special circumstances apply.

The ability to show when and how inappropriate apparel has resulted in a disruption to healthcare operations or disturbed or detracted from patient care will be very helpful should your policy be challenged by the Board.

The post Some Things May Never Change . . . Like the Right to Wear Union Insignia in Healthcare Workplaces appeared first on Felhaber Larson.

In Browning-Ferris Industries of California, Inc. (2015) (“BFI”) the NLRB ruled that they may find:

that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.

This relaxed standard caused major labor relations headaches for numerous employers and their contractors. For example, if a non-union company retained a contractor with a unionized workforce, their mutual control over the contractor’s workers might lead the hiring company to be liable for rights the contractor’s employees possessed under their collective bargaining agreement.

This standard was widely criticized for giving insufficient guidance on when a joint employer relationship would or would not be created, especially since the NLRB had discretion to give “dispositive weight” to an employer’s control over “any essential term and condition of employment in finding a joint-employer relationship.”

Bye-Bye, BFI

In Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. the NLRB ruled that the BFI doctrine abandoned a longstanding test that provided certainty and predictability, replacing it with a “vague and ill-defined standard.” They further noted that the BFI doctrine dragged “third parties into collective bargaining,” and was “much more likely to thwart labor peace than advance it.”  They therefore returned to the previous test to determine joint employer status, namely:

joint employer status will be found when the alleged joint employer entities have actually exercised joint control over essential employment terms in a direct and immediate manner.

As a result, joint employer status would will no longer arise from control that is “limited and routine,” such as when a supervisor tells another employer’s employees what work to perform or where and when to perform it.

Dissent Not Happy With Abrupt Change of Course

Two members of the 5-person NLRB dissented in the decision, effectively arguing that the majority had inappropriately decided to overrule precedent. Specifically, the dissent noted that the case could be decided without reaching the joint employer issue, that the finding was irrelevant to the case’s outcome, and that no party asked them to reconsider the BFI doctrine.

The dissent further complained that the majority’s decision failed to invite legal briefs on the issue and never opened the question for public comments, making the decision irresponsible, rushed, and contrary to the NLRB’s obligation to engage in “reasoned decision making.”

Bottom Line

This decision will have far reaching impact for employers, especially those who utilize temporary staffing agencies, which were the types of relationships that the NLRB tended to point to as joint employment. However, for all other employers, the return to pre-BFI precedent will provide a more balanced and predictable assessment regarding whether or not a joint employment relationship exists.

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Since 2004, the NLRB has invalidated facially-neutral workplace rules, policies, and employee handbook provisions if “employees would reasonably construe the language [of the policy] to prohibit Section 7 activity.” Section 7 is the provision of the National Labor Relations Act (NLRA) that protects employees’ rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,”

The NLRB has applied this “reasonably construe” test to strike down a wide variety of seemingly innocuous employer policies, including policies requiring employees to “work harmoniously” or to conduct themselves in a “positive and professional manner.” We have written extensively about the NLRB’s extreme reach in this area, including No Union? No Matter – Labor Board is After You and Labor Board Finds DirectTV’s Handbook Policies Unlawful.

New Test for Facially-Neutral Policies

Last week, in a case entitled Boeing Company, the NLRB announced that it would abandon the “reasonably construe” test because it has been used to invalidate a large number of “common-sense rules and requirements that most people would reasonably expect every employer to maintain.”  Instead, the NLRB will consider two factors: (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rule.

The NLRB also announced that three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.

– Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.

–  Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

–  Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.

The NLRB emphasized that while policies and rules might be considered lawful in and of themselves, “the application of such rules to employees who have engaged in NLRA-protected conduct may violate the Act, depending on the particular circumstances presented in a given case.” In short, a lawful rule can still be applied in an unlawful (e.g. discriminatory) manner.

Applying the new standard, the NLRB concluded that Boeing lawfully maintained a “no-camera rule” that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. They reasoned that the rule potentially affected the exercise of NLRA rights but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.

Bottom Line

By abandoning the “reasonably construe” test, the NLRB is less likely to invalidate common-sense policies that have a minimal burden on the exercise of employee rights under the NLRA – even if the policy is poorly written or imprecise.

Nevertheless, it is still a good idea to critically evaluate your policies and handbook on a regular basis to insure that they are amply justified by legitimate business needs.

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This ruling calls into question the validity of all actions that Solomon took during his three years in that office, and could lay the groundwork for unraveling a number of significant decisions issued by the  Obama-era NLRB.

What Action Was Wrongful?

The ruling relates to Solomon’s appointment in June, 2010, by former President Obama as acting General Counsel following the retirement of Ronald Meisburg. The General Counsel is the NLRB’s top prosecutorial post who handles all prosecutions of unfair labor practice charges, seeks court enforcement of agency decisions and supervises the activities of all NLRB Regional Offices.

After six months as acting General Counsel, President Obama tabbed Solomon for the permanent post, one of many federal government jobs commonly referred to as PAS positions, short for “Presidential Appointee in a Position Requiring Senate Confirmation.”

The PAS designation is the crux of the matter because under the Federal Vacancies Reform Act (FVRA), anyone nominated to fill a vacant PAS job may not perform the duties of that office until after Senate confirmation.  Seemingly, Solomon should have stepped aside and let someone else serve in the acting capacity while he waited for the Senate to confirm him.  He chose not to do so, however, and remained in the acting role until 2013, at which time the Senate declined to act on his nomination, leading President Obama to withdraw Solomon’s appointment in favor of Richard Griffin whom the Senate ultimately did confirm.

Why Are We Just Hearing About This Now?

The legitimacy of Solomon’s three-year tenure as acting General Counsel was primarily a theoretical question until 2015, when the United States Court of Appeals for the D.C. Circuit was asked to rule in the case of SW General Inc. In that matter, the NLRB charged the employer with violating the National Labor Relations Act by refusing to bargain with their employees’ labor union over discontinuance of longevity payments.  The employer challenged the NLRB’s finding on several grounds, most notably claiming that Solomon’s actions on behalf of the NLRB were invalid because his service was illegitimate under the FVRA.

The D.C. Circuit agreed with the company and vacated the NLRB’s decision, prompting the NLRB to appeal to the United States Supreme Court. The NLRB contended that the FVRA’s ban applied only to those situations where after the permanent slot became vacant, the next highest official (the “first assistant”) stepped in by default and later was tabbed to be the permanent replacement.  Since Solomon had not been the first assistant at the time he was designated as the acting General Counsel, the NLRB argued that the FVRA ban should not apply.

The Supreme Court disagreed with the NLRB and sided with the D.C. Circuit by a 6-2 vote. Chief Justice Roberts wrote for the majority in deciding that the statute plainly prevents anyone from performing the duties of a PAS position after being nominated for the permanent post regardless of the manner in which they came to serve in an acting capacity.  Had Congress wished to limit the application of the FVRA to first assistants, Roberts wrote, they could easily have done so but they did not.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, contending that the majority read the law too expansively. They concluded that once the president has appointed someone to fill in on an acting basis that appointment should be allowed to stand regardless of whether that individual is ultimately selected for the permanent vacancy.

Bottom Line

It cannot be said for certain how this ruling will affect the cases for which Solomon was responsible.  The last time this happened, the NLRB just issued orders validating all past defective actions so there was no significant impact.

Things could be very different this time around since we have a new administration from the other side of the political spectrum.  A new composition of National Labor Relations Board members may very well want to see certain Obama-era decisions rendered invalid.

Stay tuned because this is probably going to get very interesting.

The post Supreme Court Decision on Wrongful Service by NLRB Official May Jeopardize Obama-Era Rulings appeared first on Felhaber Larson.

The NLRB contends that employers cannot maintain workplace rules that chill an employee’s exercise of their rights under Section 7 of the National Labor Relations Act (the “Act”). These Section 7 rights include the right to form, join or assist labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Close-Up on the NLRB’s Position

In a 2015 case involving national grocery chain Whole Foods, the NLRB ruled that the employer’s policy prohibiting the use of recording devices without management approval violated the Act. The NLRB noted that photography or recording, often done covertly, provides an essential protection for employees through “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence . . .” The NLRB specifically noted that the rule was overbroad because it applied to all recordings, thereby infringing on protected activity.

In a subsequent decision ironically involving cell phone company T-Mobile USA, Inc., the NLRB struck down a work rule banning recording “people or confidential information using cameras, camera phone/devices or recording devices (audio or video) in the workplace.” The NLRB found that the rule violated the Act because it (a) applied to recordings made during non-working time and in non-working areas, and (b) failed to differentiate between recordings that were protected and not protected by the Act. They further noted that T-Mobile’s goal in enacting the rule — maintaining privacy, protecting confidential information, and promoting open communications — were insufficient because “neither the rule nor the proffered justifications are narrowly tailored to protect legitimate employer interests or to reasonably exclude Section 7 activity.”

This trend continued throughout 2016 in various NLRB Administrative Law Judge decisions. For example, in Stericycle, Inc., 2016 NLRB LEXIS 813 (Nov. 10, 2016), the Administrative Law Judge invalidated a workplace recording rule because “rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices are unlawfully overbroad where they would reasonably be read to prohibit the taking of pictures or recordings on nonwork time.” Similarly, in Cordua Restruants, Inc., 2016 NLRB LEXIS 813 (Dec. 9, 2016) the Administrative Law Judge applied the recording-device rule from Whole Foods and T-Mobile to cell-phones on the basis that nearly all modern cell-phones have cameras. The Administrative Law Judge noted that the rule in question was invalid because it did not contain a “safe harbor for protected activities.”

Bottom Line

If you are going to regulate this sort of activity, remember:

∗  A complete and total ban is probably not going to pass muster.  Therefore,  tailor the policy to prohibit filming only of those activities in which there is a legitimate confidentiality interest, such as information about customers or vendors, or those matters that constitute legitimate trade secrets;

∗  Limit the ban to apply only to working time and working areas, or while otherwise conducting legitimate business activities.  Even then, the NLRB might still find the policy unlawful if it has the effect of banning secret or surreptitious recording that supports or advances protected, concerted activity.

∗  Allow employees to use their cellphones/recording devices while on breaks, at meals or during other legitimate non-working time.

∗  If an employee is not recording activity for protected reasons, or is doing so for improper motives such as harassment or intimidation, the employee’s actions are not protected by the Act.

Any policy in this area must be carefully drafted and thoroughly reviewed.  New decisions are coming out all the time, and the change in make-up of the NLRB that occurs with a new president could chart a very different course.

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Although this Advice Memorandum is not legally binding and is not yet embraced by the courts, it does reflect the interpretation of the NLRB’s General Counsel (who authored the Memorandum) and signals the likelihood of enhanced enforcement of this interpretation of the law.

The Union Organizing Drive

The Advice Memorandum addressed a company that entered into independent contractor agreements with their truck drivers.  These agreements contained a number of typical indicators of an independent relationship, including recognition that the drivers could decline work, permission to use their own trucks, compensation by the load instead of at an hourly rate and the requirement that the drivers secure their own insurance for their vehicles.

After the union began a campaign to organize the drivers, unfair labor practice charges were filed with the NLRB alleging that the company illegally threatened to close its facility if the drivers supported the union.  The charges also asserted that the company illegally interrogated one of the drivers about the extent of union support among his colleagues.

Not surprisingly, the company contested the allegations on the grounds that the drivers were not employees and therefore, the NLRB had no jurisdiction over them.

An NLRB Regional Office ruled against the company, finding that the drivers really were employees and that the threats and interrogation violated their rights under the National Labor Relations Act (NLRA).  The company settled the charges but soon thereafter issued a memorandum announcing that the company had no actual employee drivers and that the settlement did not apply to independent contractors.

The company’s actions prompted withdrawal of the settlement, another round of unfair labor practice charges and additional legal wrangling over the employment status of the drivers.  The dispute eventually landed at the doorstep of the NLRB General Counsel.

NLRB Unloads on the Company

The General Counsel agreed that the level of control and the ongoing nature of the relationship reflected that the drivers were employees, not contractors.  The company set non-negotiable compensation rates and controlled the drivers’ schedule and work hours to such a degree that the drivers could not work elsewhere.  Drivers received employee handbooks and other employment memos, they were provided with all necessary training, and were disciplined (or even terminated) for driving infractions.  What’s more, almost all of the drivers operated vehicles that were rented from, maintained by and insured through the company.

As employees then, the drivers were entitled to their rights under Section 7 of the NLRA, namely the right to join a labor union.  In that regard, the Advice Memorandum highlighted three critical legal principles at issue in this case:

1.   An employee’s right to engage in union activity is violated when an employer’s actions chill or curtail that person’s future Section 7 activity;

2.  An employer violates the NLRA when telling employees that their exercise of Section 7 rights would be futile (e.g. “Even if the union wins, we will never accept it”); and

3.  Misstatements of law amount to an unlawful interference with Section 7 rights if the statement reasonably implies adverse consequences for engaging in protected activity.

Based on these principles, the General Counsel concluded that the company unlawfully interfered with the drivers’ Section 7 rights.  Notwithstanding the terms of the independent contractor agreements, it should have been clear that the drivers were employees.  Continuing to treat them as contractors, especially after the NLRB found otherwise, was “without any legitimate business purpose other than to deny the drivers the protections that inure to them as statutory employees, and operates to chill its drivers’ exercise of their Section 7 rights.”

Moreover, the continued insistence that the drivers were not employees when the NLRB had ruled otherwise was “akin to a misstatement of the law that reasonably insinuates adverse consequences” for engaging in protected activity. Since independent contractors can be let go for union organizing activity, the company’s persistence in claiming that the drivers were not employees was deemed “tantamount to the Employer telling its employees that they engage in Section 7 activity at the risk of losing their jobs.”

Bottom Line

Misclassifying employees as independent contractors already posed a huge burden on an employer, and this new development just keeps piling it on.

Look for labor unions to get much more active in pursuing this new opportunity to enforce employee rights and to demonstrate their value to work forces they are trying to organize.

The post Treating Employees as Contractors May Violate NLRA appeared first on Felhaber Larson.

Previously, the NLRB has ruled against such unions because they deemed the relationship between the schools and their teaching or research assistants to be “primarily educational, not economic.”

University Gets Schooled

The students seeking to be represented by a union at Columbia University included “graduate and undergraduate teaching assistants, . . graduate research assistants (including those compensated through training grants), and all Department research assistants.”  The NLRB found that this bargaining unit was appropriate even though some of the students did not perform services for more than one semester.  They ruled that the students’ tenure was “not so ephemeral as to vitiate their interest in bargaining over terms and conditions of employment.”

The NLRB was not persuaded by arguments that allowing student employees to unionize would impair the faculty-student relationship and diminish academic freedom, reasoning instead that “there is no compelling reason – in theory or in practice – to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education.”

The NLRB very carefully distinguished this decision from their recent ruling preventing student athletes at Northwestern University from unionizing. They noted that they never actually ruled in that case whether the athletes formed an employment relationship with the university.  Moreover, they highlighted that unlike the athletes, the teaching and research assistants are not “within and govern[ed] by an athletic consortium dominated by public universities”, namely the NCAA.  Therefore, the two situations were not comparable.

Bottom Line Number 1

Columbia University is likely to appeal but if that appeal is not successful, private universities throughout the country can expect their new “student-employees” to receive calls very soon from union organizers looking to add to their ranks.

Next Case – Back Pay is More Than Just Back Pay

Meanwhile, an Administrative Law Judge for the NLRB has ruled that back pay is not a sufficient remedy for wrongfully terminated employees.  From now on, they will also be entitled to reasonable search-for-work and interim employment expenses even where such expenses exceed the amount that the individual actually earns in substitute employment.

Employees claiming illegal termination under the National Labor Relations Act are required (as they are under many other federal and state laws) to look for other work in order to minimize the impact of their illegal termination. Obviously, this can entail a fair amount of expense as these individuals may incur job-seeking assistance, transportation costs and perhaps even relocation expenses to secure and begin new employment.

Making Employee Whole-er

Previously, those expenses could only be recovered in a legal proceeding up to the amount of whatever earnings the individual received from their new work, and they received nothing at all if their search for interim employment had been unsuccessful. Now, all of these expenses will be reimbursed after successful litigation, even if the job search was not fruitful.

In explaining their decision, the NLRB offered this example:

Juana Perez worked at a remote location earning $1,000 per month prior to her unlawful discharge. During the month following her discharge, Perez spent $500 travelling to different locations looking for work. Perez could only find interim employment in another state that paid $750 per month. Perez moved to the new state to be closer to her new job and was also required to obtain training for her new position, costing her $5,000 and $500, respectively. Under the Board’s traditional approach, Perez would receive compensation for only $1,500 of her $6,000 total expenses, far less than make-whole relief. 

Bottom Line Number 2

Losing an NLRB case is never a welcome occurrence, and the cost of doing so just got a little pricier.  Be sure to count job-seeking expenses into the equation when considering the potential exposure of a termination case.

The post Two NLRB Surprises: T.A.’s Can Unionize and Back Pay Is More Expensive appeared first on Felhaber Larson.

Union and non-union employees alike have “Section 7 Rights” under the NLRA, which protects employees’ rights to join unions, bargain collectively and engage in other concerted activities for [their] mutual aid or protection.  Interference with Section 7 rights is an unfair labor practice that can result in sanctions and penalties.

Examples of Protected Concerted Activities

In recent years, the NLRB has expanded their interpretation of protected “concerted activities” to include just about anything that two or more employees do or say in regard to the employer. For example:

Employees A, B, and C are posting on Facebook about how they think a certain supervisor is unfair. After Employee A writes that the supervisor is a real jerk and she hates him, Employees B and C “like” her post. Another employee reads the posts and reports the activity to the employer, who promptly fires Employee A.

This is probably unlawful. These employees were engaged in concerted and protected activity under Section 7 because they have the right to discuss their working conditions. Perhaps, if the complaints are “bad enough” (e.g. disparaging a customer), they might lose the protection of the law but merely being critical of the employer or a manager is not enough.  If (former) Employee A files an unfair labor practice charge with the NLRB, the employer likely would be liable for back pay and reinstatement. The NLRB also would scrutinize the employer’s social media and workplace conduct policies to be sure that they cannot be read to “chill” the exercise of the employees’ Section 7 rights.

Another example:

During a sexual harassment investigation, the Human Resources Director follows normal policy by telling everyone interviewed to “keep the investigation confidential.”

This is probably unlawful. The NLRB views confidentiality requirements such as this as restricting employees’ abilities to reach out to co-workers (and to third parties, like unions) to discuss concerns at their workplace. While there are times when it is appropriate to keep an investigation confidential, the NLRB would likely require an extreme case, such as active criminal drug ring at the workplace where there were legitimate concerns that witnesses would be in physical danger for speaking to the employer. Otherwise, even if the issues are sensitive, employees cannot be prohibited from discussing a workplace investigation that concerns them.

Bottom Line

Be aware that except in limited circumstances (e.g. government agencies, religious institutions, very low-revenue entities), the NLRA applies to your workplace. Therefore, you should evaluate whether your “normal” policies and procedures could be interpreted to restrict your employees’ Section 7 rights.

This topic will be examined in much greater depth at the annual Felhaber Larson Labor & Employment Seminar scheduled for October 28, 2016. Look here for details about the program, and check back in early Fall for registration.

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The NLRB explained that a combined unit of this type will be found whenever it is determined that 1) the User Employer and Provider Employer jointly employ the contracted workers, and 2) the regular employees and contract workers share a sufficient community of interest to form an a bargaining unit deemed appropriate by the NLRB.

How Will This Work?

The NLRB decision noted that under such a combined bargaining unit, each entity will only have to bargain over the issues that are under their respective control.  However, that is not always easy to determine, particularly since the very essence of a joint employment relationship implies joint control over many employment-related issues.

Moreover, ferreting out which employer will be responsible to bargain over specific terms and conditions for jointly employed workers is made more difficult by the NLRB’s revised joint employer standard, which provides that a User Employer may be deemed to jointly employ a contract worker if it retains a right to indirectly control the terms of employment of that contract worker.  Ultimately, as NLRB Member Miscimarra stated in his dissenting opinion, this decision will almost certainly add complexity and inefficiency to the bargaining process, which is completely antithetical to the stated purpose of the National Labor Relations Act.

The decision is also problematic for all employers as it fails to account for the impact that such combined bargaining will have on the written contract between the User and Provider Employers, or upon the terms and conditions of contract employees moving from “covered” jobs to uncovered jobs.

Finally, this decision sets the stage for increased union organizing activity.  In particular, it opens the door for unions to seek representation of established workforces (even those that had rejected unionization previously) by focusing their efforts on the temporary employees working at the same location, who hopefully will swing the vote in favor of the union.

Bottom Line

Employers using temporaries of subcontractors should review their service agreements to minimize direct or indirect control over the employment terms of contract workers.

In addition, where a bargaining unit is already present and non-union contract employees are also present in the workplace, employers should be on the lookout for organizing activity, and should be prepared to respond to a petition seeking to add unrepresented employees to the existing bargaining unit through a Unit Clarification (“UC”) petition.

The post NLRB Says Temps Can Bargain With Regular Employees appeared first on Felhaber Larson.

Setting the Stage

The NLRA protects the right of employees to act collectively to improve their working conditions or terms of employment. Any employer policy that prevents employees from doing so, or would reasonably be understood by employees to prohibit protected activity, is unlawful.

Since around 2001, Whole Foods Market’s employee handbook prevented employees from taking photos or making recordings in the workplace unless they first obtained a supervisor’s permission. Employees challenged the policy because it potentially could inhibit them from either communicating with fellow workers about protected collective action or documenting certain working conditions believed to be unlawful.

The company disagreed, contending that the policy actually promoted an open, communicative workplace where employees could “speak up and speak out” without the fear of surreptitious recording devices taking down their words.

In October, 2013, an Administrative Law Judge sided with Whole Foods, finding that “making recordings in the workplace is not a protected right” and that the policy was not intended as an anti-union device.  Moreover, permitting recording would have a “chilling effect” on the willingness of employees to speak up about concerns.

NLRB Sees It Through a Different Lens

On review, the NLRB also focused on the “chilling effect” of recording in the workplace but reached an entirely different conclusion.  They first noted that photos, videos, and recordings made on smartphones have become increasingly prevalent in labor actions. The NLRB explained that past case law is “replete with examples” in which covert photography or recordings have formed the essential basis for finding a violation of the NLRA.

As a result, the NLRB voted 2-1 against the employer on the grounds that recordings in the workplace can be considered protected under certain circumstances.   Whole Foods Market, Inc., 12/24/2015, 363 NLRB No. 87

Context Matters

Are all such policies now impermissible? Not necessarily. The NLRB did reinforce a ruling in a prior case where a ban on recordings was approved.  The significant issue for consideration is the context in which the rule applies.  The former case that the NLRB referenced arose in a healthcare setting where “employees would reasonably interpret the rule as a legitimate means of protecting [patient privacy], not as a prohibition of protected activity.”

Thus, where there are other legal interests at stake, and the policy is reasonably aimed at protecting those rather than inhibiting employee speech, a policy might be acceptable.

Bottom Line

Employers with broad, sweeping bans of photo, audio, or video in the workplace should review them to be sure that they are properly focused.  For example, if the policy bans recordings of product or production methods, the NLRB my very well view such a ban as a legitimate protection of trade secrets.  However, if the policy is vague, general or overly broad, it may be read as an attempt to limit employees’ ability to document, raise or respond to workplace concerns.

Even the best-intentioned policies can have unforeseen consequences or interpretations. Be sure to evaluate all policies in the widest possible context and get good legal advice before implementing them.

For questions, please contact John Hauge at jhauge@felhaber.com.

The post Labor Board Clicks “Pause” on No-Recording Policy appeared first on Felhaber Larson.

Fired Over Facebook Comments

In January 2011, at least two current and former employees of the Triple Play Sports Bar learned that they owed more in state income tax than they had expected. One former employee speculated on herFacebook page that this happened because the bar owner allegedly failed to properly complete tax paperwork. She wrote: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” Vincent Spinella, a current employee, clicked the “Like” button on the post. Several other current and former employees responded with their own comments, including Jillian Sanzone, a bartender, who wrote: “I owe too. Such an a[**]hole.” The bar’s owner fired Sanzone and Spinella for their Facebook activity soon after discovering it.

The employees took their case to the National Labor Relations Board (NLRB), alleging that the bar’s owner violated their rights under the National Labor Relations Act (NLRA) to act collectively “to improve terms and conditions of employment or otherwise improve their lot as employees.” The NLRB ruled in favor of the employees, and the Second Circuit upheld that decision on appeal, ruling that their right to act together to improve their employment includes the right to use social media to communicate with one another or the public for that purpose.

Are Facebook posts protected concerted activity?

When an employee is terminated over their public comments, a court is forced to engage in a balancing act—the employees’ rights to act collectively to pursue improvements to their working conditions must be weighed against the employer’s interest in preventing disparagement of its products or services. How do we know which one weighs more heavily?

The nature of the discussion matters. In this case, the employees were found to be engaged in concerted action because the comments involved current employees and were “part of an ongoing sequence of discussions that began in the workplace about [the bar’s] calculation of employees’ tax withholding.” The Facebook discussion was protected because the topics included withholding and possibly being owed back wages, which can fairly be considered terms and conditions of employment. Also key to the Court’s reasoning was that although the discussion among employees was public and viewable by customers, there was no evidence that the discussion was targeted at customers. Moreover, although the alleged reason for the tax liability may have been inaccurate, the statements were not made maliciously, but as part of a good faith discussion of working conditions.

Wait . . . is “Liking” a Facebook post concerted activity?

Does the simple act of clicking the “Like” button on a message typed by another person rise to the level of engaging in a discussion to improve the terms and conditions of employment? Both the NLRB and the Appeals Court said yes. While a “Like” is somewhat ambiguous, in the context of an ongoing dialogue among employees about tax withholding Spinella’s “Like” was construed as an expression of approval of the initial post by the former employee.

Bottom Line

Employees are not unconditionally entitled to communicate messages with the public that are disloyal or defamatory to their employer. Employers should recognize, however, that online discussions about the employees’ terms and conditions of employment might be protected even where they contain profanity, are negative toward the employer, or possibly inaccurate.

Employers can protect themselves by implementing clearly worded social media policies that cannot be construed to prohibit employees from discussing the terms and conditions of their employment.

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Way back in 1978, the NLRB declared in Anheuser-Busch, Inc., 237 NLRB 982 (1978) that a witness statement was different from other employer data and therefore was not within the scope of information that unions could demand from employers. That legal standard held firm until 2012 when the NLRB changed course, deciding that the employer had an obligation to turn over witness statements to the union. That decision was vacated, however, when the US Supreme Court ruled that President Obama’s “recess appointments” to the NLRB were unconstitutional and the decisions issued during their tenure were invalid.

Witness Statements are Not Confidential

After new members were officially seated, this issue was considered anew and the reconstituted NLRB again overturned Anheuser-Busch, ruling in American Baptist Homes of the West (Piedmont Gardens) that employers must turn over witness statements when demanded to do so by the union. The NLRB reasoned that a unionized employer has a duty to provide information relevant to a union’s performance of its bargaining duties, and that they were “not persuaded that witness statements are so fundamentally different from other types of information that a blanket exemption from disclosure is warranted.”

The NLRB acknowledged that there might be some instances where protection of witness statements was warranted (e.g. avoiding witness intimidation or harassment) but there simply was no reason why a general exemption should apply. Thus, from now on, when access is requested, an employer seeking to prevent disclosure has the burden of establishing a legitimate confidentiality interest that outweighs the union’s need for the statements.

The dissenting members of the NLRB cited the risk that employees might now be more reticent about providing statements since they are more likely to be exposed to intimidation and retaliation. This in turn will impair employers’ abilities to maintain safe and productive workplaces. These concerns failed to carry the day.

Bottom Line

This decision could make it very difficult for unionized employers to conduct adequate investigations. While employees participating in investigations may have understood that they could be called upon to testify in an arbitration or court proceeding, they also knew that most such matters got resolved long before testimony was required. Now that the union can access witness statements in every investigation, it might be far more difficult to persuade employees to participate when they know that they will be second-guessed and judged by the union, their co-workers and the accused.

Of course, it is also good to remember that employers have the same right to demand statements from the union, and employers should always consider requesting that the union produce any witness statements or recordings for the purpose of evaluating the merits of a grievance

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If you are a unionized employer, you almost certainly know that your employees have something called “Weingarten” rights, meaning that unionized employees may request (and must then receive) union representation as a condition of participation in any interview the employee reasonably believes may result in disciplinary action. The rule does not apply, however, where the employee could not reasonably believe that an interview may lead to discipline – e.g., run-of-the-mill shop-floor conversations, task-related instructions, training or corrections, or meetings in which previously determined discipline is actually imposed.

While Weingarten guarantees the presence of a union representative upon request, it does not give that representative the right to turn the interview into a full adversarial proceeding. The Supreme Court has ruled that employers still may investigate the issue at hand without interference, including the right to insist on hearing the employee’s account of the events rather than a sanitized version offered by the union representative. Still, recent National Labor Relations Board (NLRB) decisions have begun to authorize expanded rights for the union representative, including the right to “remind” the suspect employee of his story by writing out answers to the employer’s questions, and the right to direct the employee not to respond until the employer “clarified” the questions to the union representative’s satisfaction.

No Truth + No Union Rep = No Worries

The NLRB recently went one step (or perhaps two or three) further in the case of E.I. Dupont de Nemours & Co., where an employee with a history of dishonesty was questioned on multiple occasions by managers about an alleged work-related injury he claimed to have suffered. The employer denied his requests for union representation and then fired him for providing what the NLRB described as “seemingly inconsistent and dishonest answers. . .” to the employer’s questions.

The employee and union filed an unfair labor practice charge against the company, which the NLRB upheld. Essentially, they assumed that a union representative would have protected the employee from acting contrary to his best interest and therefore, the employee should not be held accountable for dishonesty or intemperate behavior taking place during an unlawful investigative interview. The employee was ordered reinstated with full back pay.

This decision is particularly significant, and not just because of the NLRB’s attenuated reasoning. In previous cases, employees did not necessarily get their jobs back if the NLRB concluded that an employee was suspended or discharged for reasons unrelated to the denial of the employee’s Weingarten rights. Now, the NLRB seems to tell us that any misconduct during an unlawful interview will be considered out of bounds for disciplinary action, and that the employer will need to be able to prove that they would have discharged the employee even absent the purported interview-related misconduct.

Bottom Line

It is now more important than ever that employers understand the protections afforded union employees and their representatives when planning to conduct workplace interviews. Employers must determine in advance whether the interview is or is not investigative, how they will respond to a demand for representation and how they will deal with the increasingly broad rights union representatives now have during interviews.

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The employees in this instance traveled to customers’ locations to install and repair telephone and cable services.  After a long history of collective bargaining, the employer instituted a new dress code barring employees from wearing buttons, pins and stickers on their company-brand apparel.

In 2012 when the collective-bargaining ended, employees took to wearing buttons and stickers that bore statements such as “WTF, Where’s The Fairness,” “FTW Fight To Win,” “CUT the CRAP! Not My Healthcare,” as well as other less provocative expressions.  In response, the company refused to assign these employees to jobs until they removed the offending items, and those who refused were sent home without pay and subject to attendance infractions.

A Case of Delicate Sensibilities?

The company claimed that these items were so vulgar and offensive that they no longer constituted protected speech.  The Board disagreed, noting that the buttons with the “WTF” and the FTW” acronyms actually bore non-profane explanations on their face so as to eliminate their offensiveness.  As for the “Cut the Crap!” buttons, the employer argued that the font of the words was offensive because it resembled human waste.  While agreeing that such an argument could be valid in some cases, the Board disagreed with the employer’s artistic interpretation and ruled that the buttons were protected.

The company contended that special circumstances permitted the ban on these items since they had a heightened interest in maintaining a particular image in the community. If the was true, the Board reasoned, why did they historically allow these workers to  wear such items as baseball caps, sweatshirts, logoed t-shirts and jewelry that also deviated from the policy?

The Board also invalidated the company’s ban on buttons saying “No on Prop 32”, a state ballot initiative seeking to prevent labor unions from using payroll deducted monies for political purposes.  While agreeing that employers might ban buttons favoring controversial political issues, the Board found that the issue at hand did not rise to that level, nor did the buttons necessarily misrepresent that the company as a whole was taking a position on the issue. Without   specific evidence supporting their concerns, the employer’s parade of horribles about what might happen if the buttons were worn in public was not enough to overcome the employees’ right to wear those buttons.

Bottom Line

The NLRB currently takes a strong stand on efforts to curb employee speech.  Before taking action to do so, employers must be confident that their efforts will not be rebuffed by the NLRB.

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The new rules, which became effective in April of this year, made several changes that the NLRB contended would modernize their process and eliminate unneeded litigation and delay.  Specifically, the rules:

• Shorten the deadline for the employer to produce a voter eligibility list from seven days to two absent special circumstances or agreement of the parties to the contrary;
• Shorten the deadline for conducting a hearing on the legal issues to just seven days after the Notice of Hearing is issued, absent special circumstances;
• Require that employee e-mail addresses and phone numbers be disclosed and electronically  transmitted to the Union to permit more efficient communication;  and
• Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

In Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 15-cv-00026 (W.D. Tex. June 1, 2015), an alliance of Texas business groups requested that Federal District Judge Robert L. Pitman enjoin the enforcement of the new rules because the NLRB exceeded their legal authority, violated employees’ privacy rights, interfered with employers’ protected speech during election campaigns, and generally acted in an arbitrary and capricious manner.  Judge Pitman rejected each of these arguments, citing repeatedly to the great deference that must be accorded to government agencies, as well as the flexibility and discretion that the NLRB had to make exceptions if the rules proved too burdensome in any particular instance.

This decision is already being appealed. And, there is a second case working its way through the courts that also challenges these new rules, so all is not lost yet.  Still, this is a disappointing decision and should be taken as a sign for employers to remain vigilant and prepared at all times to initiate a strong union campaign if a petition is filed.  There likely will not be much time to collect your thoughts.

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Background

Ann Wayt worked as a Registered Nurse at Affinity Medical Center in Massillon, Ohio.  In more than 30 years, she had never been disciplined and actually won a prestigious nursing award in 2008.  In 2012, she actively and visibly was involved in a campaign to unionize the nurses at the Hospital, which resulted in a narrow victory (100-96) for the union.

The day of the election, a nurse who worked as a “sitter” with one of Wayt’s patients the previous day complained that Wayt had not relieved her on time.  The Hospital investigated Wayt’s care for the patient and concluded that she had (1) falsified documentation on the patient’s chart by stating that she had performed a “head-to-toe” assessment when she had not; (2) failed to perform her hourly rounds on the patient; and (3) had posted several inaccuracies  in the patient’s chart.

Despite never actually interviewing Wayt, Hospital management concluded that she should be terminated but asked their Human Resources Department to review the decision.  HR responded that this was a “a weak case for termination” and asked for additional information, including Wayt’s disciplinary history and a description of how similar situations had been handled in the past. Management never responded, choosing instead to revise its description of the events in question (with several inaccuracies) and proceed to terminate Wayt for “substandard patient care and falsification of patient documentation.” Management then filed a report with the Ohio BON asserting that the patient was “not observed for an unsafe period of time.”

BON Reporting Requirements

In Ohio (like Minnesota), if a hospital believes that a nurse’s behavior would result in discipline from the state Board of Nursing, the hospital must report that nurse to the BON. By law, the hospital will not be liable for damages because of the report, unless the report is submitted in “bad faith.”

Ohio Jury and NLRB Both Find the Hospital Broke the Law

Following her termination, Wayt sued, claiming among other things that the BON report defamed her.  After a trial, the jury agreed and awarded her $800,000 in compensatory damages and $750,000 in punitive damages, while also ordering the Hospital to pay her attorney’s fees.

At the same time, the Hospital was facing Unfair Labor Practice charges stemming from the union election, one such charge being that Wayt’s termination and the BON report were retaliatory due to her involvement with the union.   An Administrative Law Judge (“ALJ”) and ultimately the NLRB found that the hospital’s actions were in fact discriminatory and violated the National Labor Relations Act for the following reasons:

• The timing of the Hospital’s actions relative to the union election was suspect and the Hospital could not prove that their reasons were true;
• The Hospital did not conduct “an unbiased investigation, but [rather] an inquiry . . . that was focused on getting support for the decision it had already made . . .”; and
• Even if the Hospital’s reasons had been true, the hospital had hardly ever terminated a nurse and made a report to the BON in similar circumstances, namely “a first offense that had no bearing on the patient’s health.”

The NLRB ordered the Hospital to offer the Nurse reinstatement, make her whole for any loss of earnings or benefits, compensate her “for the adverse tax consequences, if any, of receiving a lump-sum backpay award,” formally withdraw the BON Complaint against the Nurse, and reimburse the Nurse for any legal fees that she may have incurred at the BON.  See Affinity Medical Center, 362 NLRB No. 78 (April 30, 2015).

Bottom Line

Although making BON reports is mandatory, Minnesota health care employers must still conduct a legitimate investigation of the matter in order to be sure that their report is in good faith and subject to the immunity that the law provides.

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New General Counsel Memorandum

On March 18, 2015, the Board’s Office of the General Counsel released a Memorandum providing employers guidance as to what the Board deems lawful and unlawful handbook language.  The Memorandum reflects the Board’s continued interest in policies addressing employee use of social media, workplace conduct and decorum toward managers and co-workers, and employee confidentiality obligations.  However, the Memorandum also finds unlawful a number of novel policy areas that have not previously received such close scrutiny, including media and other outside communications; use of employer logos, copyrights or trademarks; restrictions on personal electronic devises, photography and recordings; restrictions on employee rights to leave work; conflict-of-interest policies; and handbook disclosure policies.  Some examples of Employer policy language deemed unlawful by the Board, includes:

• Media Relations/Communications – “Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.”

The Board explained that the language is unlawful because employees “would reasonably construe the phrase ‘company matters’ to encompass employment concerns and labor relations, and there was no limiting language or other context in the rule to clarify that the rule applied only to those speaking as official company representatives.”

• Company Name and Logo Use Restrictions – “Company logos and trademarks may not be used without written consent . . . .”

The Board explained that the language is unlawful because it contains broad restrictions that employees would reasonably read to ban fair use of the employer’s intellectual property in the course of protected concerted activity.  By “fair use” the Board means referencing company names, logos, etc. on picket signs, leaflets or other “non-commercial” communications.

• Restriction on Electronic Media – “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation . . . .”

The Board found this rule unlawful because employees would reasonably construe it to preclude, among other things, documentation of unfair labor practices, which it considers an essential part of the recognized right under Section 7 to utilize the Board’s processes.

• Restriction on Electronic Media –  “Prohibition from wearing cell phones, making personal calls or viewing or sending texts ‘while on duty.’”

The Board found this rule unlawful because it considers the limitation on personal recording devices to time “on duty” to be insufficient.  Specifically, the Board asserts that employees “reasonably” would understand “on duty” to include breaks and meals during their shifts, as opposed to their actual work time.

• No-Call/No-Show/Job Abandonment Provision – “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift is prohibited.”

The Board concluded that this provision could be understood by employees to unlawfully limit the employees’ protected right to engage in lawful strikes and walkouts.

• Conflict of Interest Policy – “With this in mind, you should recognize your responsibility to avoid any conflict between your personal interests and those of the Company. A conflict of interest occurs when our personal interests interfere—or appear to interfere—with our ability to make sound business decisions on behalf of [the Company].”

Here, the Board inferred that an employee may believe his or her own interests (e.g., to form or join a union, or to discuss low wages, etc.) may be inconsistent with the company’s interests, and, therefore, found the rule unlawful because it was phrased broadly and did not include any clarifying examples or context that would indicate that it did not apply to Section 7 activities.

• Handbook Disclosure Provision – “No part of this handbook may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system or otherwise, for any purpose without the express written permission of [management].”

The Board concluded that this provision was unlawful because it prohibited disclosure of the Employer’s handbook, which contains policies relating to the terms and conditions of employment, to third parties such as union representatives or the Board.

In summary, it is clear from the Memorandum that the Board will scrutinize every word of every policy document, handbook provision, form document, disciplinary communication, or any other written communication between an employer and its employees in an effort to uncover language that may unlawfully restrict employee Section 7 rights.

Implications of Maintaining Unlawful Policies

If an employer’s policy is found to be unlawful, the Board will typically require that the employer change the problematic handbook or policy and post a notice to employees explaining their rights.  Additionally, an employer who terminates an employee based upon overly-broad policies may be required to reinstate the employee with backpay.  See Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012).

The stakes are even higher for employers facing a union election.  Imagine that you’ve worked hard to prepare your organization to respond to an ambush election.  Even better, imagine that you’ve won that election.  Now imagine that the union files objections asserting that one or more of your company policies are unlawfully overbroad or restrictive.  After review, the Board agrees with the union and throws out the election results.  That’s exactly what happened in Jurys Boston Hotel, 356 NLRB No. 114 (2011), where the Board overturned the “no” vote of a majority of employees who voted because a handbook policy that had never been enforced or even at issue in the campaign was deemed unlawful by the Board.

Bottom Line

Employer’s should take the time necessary to review and revise policy documents, handbooks, etc. to reduce the risk that such documents contain language the Board would deem unlawful.  In reviewing policies, employers should be mindful of several major themes that consistently appear in Board decisions and guidance regarding the elements of lawful and unlawful policies:

• Understand Protected Concerted Rights:  It will help you immeasurably to read your handbook like an investigator from the Board would by keeping the idea of “protected concerted activity” top of mind.  Most policy provisions can be revised to avoid the pitfalls described above, if you understand the rights conferred by Section 7.

• Provide Examples of Prohibited Conduct: Providing examples of plainly egregious unprotected behavior to provide context and eliminate ambiguity about whether the policy could be interpreted to limit the exercise of Section 7 rights.

• Define Confidential Information: Defining what types of confidential information should not be disclosed – i.e., business financial or trade secret information, or customer financial information, and not information about employees.

• Include Limiting Language: While the Board has made clear that an otherwise unlawful policy cannot be cured by a general “disclaimer,” employers should consider including limiting language in any potentially offending policy or provision itself.

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Franchisor Named In Complaint

The inclusion of McDonald’s USA, LLC (the franchisor) as a named party in the complaints came after the Office of the General Counsel for the NLRB determined that, in its view, the franchisor is a “joint employer” with the individual franchisees.  Minneapolis and Chicago are among the locations where the NLRB issued complaints in mid- to late-December.

As expected, McDonald’s USA, LLC will contest the NLRB’s position as to joint employer status, arguing that, as a parent company, it helps provide “resources” to its franchisees – through things like brand name recognition and operating material – but lacks meaningful control over workplace conditions.

The complaints filed by the NLRB allege that a joint employer relationship exists where McDonald’s USA, LLC has “a franchise agreement with [the franchisee], possessed and/or exercised control over the labor relationship policies of [the franchisee] and has been a joint employer of the employees of [the franchisee].” The complaints filed in Minneapolis (Region 18) and Chicago (Region 13) offer little factual support for the assertion that McDonald’s has “extensive influence over the business operations of its franchisees.” McDonald’s has already filed motions requesting more information and claiming that the NLRB’s complaints are unconstitutionally vague. Without additional facts, McDonald’s says it cannot appropriately defend itself and it will be denied due process of law in violation of the U.S. Constitution and federal law.

In a McDonald’s Fact Sheet published by the NLRB on its website, the Agency has summarized its joint employer theory as follows:

Our investigation found that McDonald’s, USA, LLC, through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of [the NLRA]. This finding is further supported by McDonald’s, USA, LLC’s nationwide response to franchise employee activities while participating in fast food worker protests to improve their wages and working conditions.

Only time will tell if this argument is factually and legally supportable.

Bottom Line

The concern for McDonald’s, and other franchisors, is the potential for liability where they have not been directly involved with workplace decisions and conditions such as hiring, firing, discipline and supervision at each franchise location.  A hearing is scheduled to commence in Chicago on March 30, 2015, where we are likely to learn more of the NLRB’s factual basis behind its joint employer theory.

We will keep you updated as to any significant developments.

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Register Guard Decision

In 2007, the Board issued a decision in Register-Guard, 351 NLRB 1110 (2007), which held that employees have no statutory right use their employer’s email systems for engaging in conduct protected by the National Labor Relations Act (“NLRA”). Such activities include union organizing and other concerted activities for mutual aid or protection.

Accordingly, employers had been able to promulgate and enforce policies that prohibited employees from using company-provided email systems for all non-work related activities, such as selling a car or soliciting donations. The fact that these blanket prohibitions included activities protected by the NLRA was of no consequence, provided that the employer did not enforce the policy in a way to target union or other activities protected by the NLRA.

Right to Use Company-Provided Email for Activities Protected by NLRA

In its decision in Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), the Board ruled that employees who have been given access to a company email system must presumptively be allowed to use the system during their non-working time for communications that are protected by the NLRA. In short, according to the NLRB, federal labor law prohibits employers from implementing or maintaining policies that prohibit all non-work related use of its email system.

Because the right is subject to a “presumption,” it may be possible for the employer to rebut the presumption in certain cases. According to the Board, “[a]n employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” However, the Board made clear that it would be a “rare case” where an employer’s business interests would justify a total ban on non-work email use.

Another limiting aspect of the decision is that it only applies to “non-working time.” Therefore, employers can continue to prohibit use of its email systems for non-work related purposes during the employees’ working time. (However, employers are not permitted to discriminatorily enforce a prohibition against non-business use by selectively prohibiting email communications that constitute NLRA-protected discussions.) In addition, the Board made clear that its decision applies only to company email and not to other forms of electronic communication, such as employer-provided instant messaging services or social media.

Bottom Line

Although not unexpected, the Board’s decision represents a “sea change” for employee email use. According to the Board, employers can no longer maintain an electronic communications policy that generally prohibits all non-work related use of the employer’s e-mail system.

Employers with such policies should, with the assistance of counsel, consider whether and to what extent changes need to be made. Considerations include the following: (1) the possibility that the Board’s decision will be reversed on appeal, (2) the fact that maintaining an unlawful policy may be grounds for setting aside a union election, (3) the possibility that managers who are not expected to keep up with these legal nuances may independently authorize the termination of an employee in reliance upon a policy that the NLRB considers to be unlawful for engaging in NLRA-protected communications (which raises the stakes of an adverse outcome), and (4) the fact that the NLRB cannot force an employer to change its policy unless a charge is filed.

Employers with questions should feel free to contact any of Felhaber Larson’s experienced Labor Law attorneys. We will continue to monitor this issue as it develops.

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President Uses Recess Appointments to Keep “Quorum”

The NLRB is a quasi-judicial body with five members, appointed by the President and confirmed by the Senate, to five-year overlapping terms.  In 2010, the Supreme Court ruled that the NLRB does not have the authority to issue decisions (or adopt new rules) when its membership dips below three members (i.e., when it does not have “quorum”).

In January 2012, the NLRB was at risk of falling below the three-member quorum requirement because the Senate had failed to confirm any of the President’s nominations. In response, President Obama attempted to appoint three Board members – Sharon Block, Richard Griffin, and Terence Flynn – without the Senate’s approval, pursuant to use his authority under the Recess Appointments Clause to avoid the confirmation process.

Unfortunately for the President, after a lengthy litigation process, the Supreme Court has concluded that the President did not have the constitutional authority to make recess appointments in January 2012 because the Senate was not, in fact, in “recess.” Instead, the Senate was holding pro forma sessions every three days. According to the Court, “[t]hree days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause.” Thus, the Supreme Court concluded that “the President lacked the power to make the recess appointments here at issue.”

The next step for the NLRB is to assess the damage. According to a press release, the Board is “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” Because the Supreme Court affirmed the D.C. Circuit’s decision to vacate the NLRB’s order, it is possible that all orders (and rules) issued by the Board during this time were invalid. Specifically, these invalid decisions would have been issued by the recess-appointed members who served from January 2012 until July 30, 2013, when the Senate confirmed five new NLRB members.

Bottom Line

For the second time in four years, the Supreme Court has issued a decision that will likely nullify hundreds of NLRB decisions. Because the Board now has five members, the Board will likely go through the invalid opinions and issue a new decision either affirming, amending, or overturning the orders that were issued by the improperly-constituted Board. While that’s not great news for an employer who received an adverse ruling from the Board from January 2012 to July 30, 2013, it may give the employer an opportunity to convince the current Board of the merits of its case.

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Background

The regulations proposed by the NLRB today are nearly identical to the substantial changes that the Board proposed back in June 2011 (hereafter “2011 election proposal”). As we previously reported, the Board abandoned many of the more “controversial” changes in its December 2011 Final Rule after significant opposition from business groups. Nevertheless, even the “pared-down” Final Rule faced a mountain of litigation after it was passed.

In May 2012, a federal judge in D.C. then found the rules adopted in December 2011 invalid because the Board did not have the 3-member “quorum” required by the U.S. Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Although the Board announced thereafter that it accepted the federal court’s decision, the new proposed amendments show that the Board has clearly not abandoned its desire to revamp election procedures.

NLRB Re-Proposes Sweeping Rule Changes

Rather than reissuing the “pared down” changes from the Final Rule adopted in December 2011, the Board has proposed reverting back to the more sweeping changes that were contained in the original 2011 election proposal. In announcing the reissuance of the rules, NLRB Chairman Mark Gaston Pearce stated: “I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment.”

The stated purpose of the proposed regulations is to make the representation case process more streamlined and efficient. Pursuant to that goal, here is a list of several changes contained in the proposed rules:

• Shorten Deadline for Producing Eligibility List—The proposed amendments change the deadline for production of the eligibility list from 7 days to 2 days, absent agreement of the parties to the contrary or extraordinary circumstances.

• Shorten Deadline for Election Hearing—The proposed amendments provide that, absent special circumstances, the regional director would set the hearing to begin 7 days after service of the notice of hearing.

• Employee Email Addresses Disclosed to the Union—The proposed amendments also require employers to disclose employee email addresses and phone numbers in an expanded “Excelsior” list that will be transmitted electronically to the union.

• Postpone Most Election Issues until After the Election—The proposed amendments provide that if the regional director finds at any time that the only issues remaining in dispute concern the eligibility or inclusion of employees who would constitute less than 20% of the unit if they were found to be eligible to vote, the regional director must direct that those individuals be permitted to vote subject to challenge.

The most significant of these changes is the one moving the determination of most bargaining unit and voter eligibility issues to after the election. The NLRB argues this change is needed because most of the election issues are resolved by the actual election results.

The Board does not propose any specific timeframe for holding an election after an election petition is filed. Indeed, in response to criticism from the dissent, the majority makes clear that “the proposed rules themselves do not compel any particular number of days or time periods for holding or not holding elections.” Nevertheless, in his dissent to the 2011 election proposal, then-Member Brian Hayes suggested that the intent of the regulations is to reduce the typical campaign period from its current target of 42 days to 21 days or less.

Bottom Line

The NLRB’s proposed regulations will fundamentally change the representation case process and should make it much easier for unions to organize new groups of employees. As with the 2011 rules, business groups likely will rally support to block or at least significantly restrict the proposed regulations. Advocates for labor, on the other hand, will be pushing for complete passage.

It is impossible to predict where this battle will end up, but the reissuance of the more radical June 2011 proposed regulations suggests that the Board is not giving up its pursuit to fundamentally change election procedures. Employers with concerns about union organizing should watch this process carefully and consider how the proposed regulations would change that process.

To view the new proposed regulations, click here.

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As we previously reported, on December 22, 2011, the Board announced a set of new rules which set forth various changes to its procedures for processing union representation cases. Most significantly, the rules aimed to shorten the time period between the filing of a petition and the actual election, which was viewed as a “win” for Unions.

Immediately thereafter, several business groups filed suit in federal court alleging that the new rules were invalid on various grounds. As we reported in May 2012, a federal judge in D.C. held that the new rules were invalid because the Board did not have the required 3-member “quorum” required by the U.S. Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Then, on December 9, 2013, a federal appellate court dismissed the Board’s appeal based on a stipulation between the parties.

The “Final Rule” filed by the Board on January 22, 2014, simply states that the Board is rescinding the changes in order to “restore[ ] the relevant language . . . , which existed before the Board issued the December 22, 2011 final rule.” That is, the Board has accepted the federal court’s decision that its rules are invalid and has acknowledged that the representation election rules are now the same as they were prior to the now-defunct 2011 amendments.

Bottom Line

The Board has finally recognized that “quicky election” rules were passed without the requisite quorum (3 Board members), and are therefore invalid. That said, because the rules were struck down on procedural grounds, nothing prevents the Board (which now has 5 members) from reissuing and repassing the same (or even more union-friendly) “quickly election” rules.

We will continue to monitor this issue as it develops.

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As we previously reported, the Poster Rule was originally proposed by the NLRB in 2011, and would have required most private sector employers to conspicuously post an 11″ x 17″ poster, entitled “Employee Rights Under the National Labor Relations Act.” The poster contained, among other things, an explanation of the rights of workers to join a union and bargain collectively regarding wages and working conditions, as well as engage in concerted activity for mutual aid or protection.

The Poster Rule was originally scheduled to take effect in 2011, but was first delayed to January 2012 and then delayed again until April 2012. It was then delayed a third time pending the resolution of several legal challenges.  Last year, those legal challenges resulted in both the D.C. Circuit and the Fourth Circuit Court of Appeals striking down the Poster Rule.

Following these rulings, the NLRB had the option to ask the U.S. Supreme court to review and decide the issue. Instead of making this request, the Board announced on January 6 that it was not seeking further review of the courts’ decisions, and it would instead continue its “national outreach program to educate the American public.” In particular, the NLRB touted its mobile app for iPhone and Android users, which provides information about the National Labor Relations Act. The NLRB also stated that the poster would remain on its website, and that it may be displayed and disseminated voluntarily.

Bottom Line

The NLRB has abandoned its efforts to require most private employers to display a poster containing union rights. As a result, employers will not be forced to display these particular NLRB posters at this time.

It should be noted, however, that the NLRB’s decision does not affect the posting obligations of federal contractors. In particular, certain federal contractors are still subject to Executive Order 13496, which requires posting a similar notice pursuant to rules from the Department of Labor, so non-exempt federal contractors should consult with counsel regarding their posting obligations.

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Board Members are appointed by the President to 5-year terms, with the term of one Member expiring each year. It is tradition that three of the members are of the President’s party. The Board typically delegates its authority to decide cases to a three-member panel, representing a quorum of the Board.

The Board has not had a full complement of five members since 2004. From January 1, 2008 until March 27, 2010, the Board had only two members (Wilma Liebman and Peter Schaumber). As we previously reported, in 2010, the U.S. Supreme Court ruled that the Board needed at least three members to decide cases. New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010).

Due to Senate roadblocks, President Obama had been using “recess appointments” to fill Board vacancies, but this approach had been challenged in the courts. At present, three circuit courts have found that the President’s recess appoints were invalid and, without the requisite three members, the Board was without authority to decide cases. Next term, the U.S. Supreme Court will likely decide whether the recess appointments were valid. NLRB v. Noel Canning, No. 12-1281, cert. granted (June 24, 2013).

Bottom Line

Confirmation of the new Board members has eliminated any uncertainty regarding the Board’s authority to issue decisions on a go-forward basis. We anticipate the Board will continue to issue Labor-friendly decisions and rule changes. We will watch any developments closely.

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The employees at Chicago Lakes Liquors are not represented by a union, but several of the employees are involved with the Industrial Workers of the World Union. (This is the same union that attempted to organize local Jimmy John’s employees, which we previously reported on here.) The liquor-store employees alleged that they signed a petition, asking for higher wages, which they gave to management. Where two or more employees take action to improve their terms and conditions of employment—such as employees requesting a pay raise—this activity is “concerted and protected” under the NLRA. Importantly, this type of activity is protected even if the employees are not represented by a union. It is unlawful for an employer to retaliate against employees (discipline, discharge, demote, cut pay, etc.) for engaging in protected and concerted activity.

In this case, the allegation is that, two days after presenting their petition seeking raises, the liquor-store employees were terminated. They claim that management told them that their employment at the store “no longer made business sense.” (One of the employees was two hours late on the day she was terminated, but claims that was due to a miscommunication regarding her schedule.) The employees filed charges with the local NLRB office, alleging that they were terminated in retaliation for the petition. The Minneapolis office of the NLRB believes that the terminations were unlawful, and if the case does not settle, it will be tried before an NLRB Administrative Law Judge. If the Judge agrees that the employer violated the NLRA, the employees could be reinstated to their jobs, with backpay.

Bottom Line

This case is a good reminder that employees do not need a union to be protected under the NLRA. Even in a non-union setting, employers cannot retaliate against their employees for engaging in concerted and protected activities that are aimed at improving their working conditions.

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The D.C. Circuit’s decision does not directly address the requirement under Executive Order 13496 that covered federal contractors post a different (albeit similar) notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA. While the decision suggests that requiring this posting could also violate employers’ free speech rights, because the decision did not directly address the Executive Order, federal contractors should not remove the notice that they are required to post.

The Board’s Posting Rule

As we previously reported, in August 2011, the Board published a rule requiring nearly all private-sector employers to conspicuously post a notice entitled, “Notification of Employee Rights under the National Labor Relations Act.”

With regard to enforcement of the posting requirement, the Board’s posting rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.

D.C. Circuit Strikes Down Posting Rule

After finding that the Board had sufficient members to issue the posting rule (because the Board still had at least three lawfully appointed members at the time it promulgated the posting rule), the Court analyzed whether requiring employers to post the Employee Rights Notice violates employers’ free speech rights under the Act.

Section 8(c) of the Act protects an employer’s First Amendment right to engage in non-coercive speech about unionization and expresses a congressional intent to encourage debate on labor-related issues. Specifically, Section 8(c) provides, in relevant part:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Drawing from First Amendment case law, the court concluded that while Section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is, the Board’s rule mandates that the failure to post the Employee Rights Poster constitutes an unfair labor practice, and can also be evidence of anti-union animus to support another unfair labor practice. Thus, both of these enforcement mechanisms violated the plain language of Section 8(c) by requiring the employer to disseminate the Board’s Notice in order to avoid one or more unfair labor practice charges.

As to the tolling of the 6-month statute of limitations, the court held that Congress could not have foreseen the type of alleged equitable tolling the Board would attempt to enact into law in 2011, and thus could not have intended that equitable tolling be incorporated into the Act. As a result, the Board’s equitable tolling theory violated the Act.

Because the court concluded that the Board would not have adopted the posting rule absent any basis for enforcement, the court invalidated the posting rule as a whole.

Bottom Line

For now, employers are not required to post this notice (the Supreme Court could ultimately overrule the D.C. Circuit’s decision). As noted above, however, federal contractors are advised to continue to post the notice required by Executive Order 13496 until further notice. We will be closely following this issue. Stay tuned for further developments.

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The employees worked at a retro clothing store in San Francisco selling Bettie Page-inspired items.  Soon after the store opened for business, several employees began complaining about their manager to higher-ups in the company.  They expressed concerns about safety because the store was open later at night than other businesses in the area and they were being harassed on the street when leaving for the evening.  The manager promised to take their concerns to corporate but she never did, leading one employee to speak directly with corporate, who agreed that the store should close earlier.

The manager was upset when she learned that corporate had been contacted and she indicated that the store would return to the later closing time.  Several employees then took to Facebook to air their grievances.  One employee wrote that she needed “a new job,” she was “physically and mentally sickened,” that “Bettie Page would roll over in her grave,” and that the manager made their “lives miserable.”  Another employee responded, stating that the “manager is as immature as a person can be,” that her mother who worked at a law firm would bring a “Worker’s Rights” book to work, and that the other employees would “be surprised by all the crap that’s going on that’s in violation” of the law.  The manager found out about the Facebook activity (from a different employee) and fired the two complainers “because things were not working out.”

The Board ruled that the Facebook posts were “classic concerted protected activity, even absent prior action.”  The Board rejected the employer’s claim that there were also other reasons for the termination.  They also were unimpressed with the employer’s argument that the employees “schemed to entrap their employer into firing them” because they allegedly giggled and hugged when they were fired and later posted on Facebook “OMG the most AMAZING thing just happened!!!!” and “Muhahahahaha!!! So they’ve fallen into my crutches.”  In fact, the Board wrote that “even if the employees were acting in the hope they would be discharged for their Facebook postings, the [employer] failed to establish that the employees’ actions were not protected by the Act.”  Ultimately, the employees – who only worked at the store for a few months – were awarded reinstatement along with several years of backpay.

Bottom Line

This issue continues to evolve and employers should give careful consideration to whether they are infringing on employees’ rights if they take action against them for complaining about work.  Those gripes may reach a larger audience via Facebook but their protected nature may still remain the same.

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Generally, the President is supposed to nominate Board members, and the Senate is supposed to confirm, before they can be appointed. However, it has been recognized that when the Senate is in recess, the President may temporarily appoint a Board member without Senate approval. On January 4, 2012, President Obama, attempting to appoint Board members without Senate approval, recess appointed three individuals as Board members – Sharon Block, Richard Griffin, and Terence Flynn. If valid, this action would have properly taken the Board up to a full complement of five members (albeit only for a limited period of time).

In this case, however, the D.C. Circuit invalidated the recess appointments on two separate grounds. First, the court reviewed the text and history of the Recess Appointment Clause to the Constitution and held that a recess appointment must be made during “intersession recesses” of the Senate. The Board appointments were not made during an intersession recess because they were made on January 4, 2012, which was one day after the Senate began a new session.

Second, the court concluded that the Constitution permits the President to make a recess appointment only when the vacancy arises during the recess. Two of vacancies arose on dates when the Senate was in session, so those vacancies did not qualify for a recess appointment. The final vacancy, which was open on January 3, 2012, was similarly invalid because “the Senate did not take an intersession recess . . . .” Instead, the Senate held “pro forma” sessions every three days from December 20, 2011 through January 22, 2012.

Bottom Line

The Board has, since January of 2012, issued numerous important decisions (some of which purported to change well-established law), and the Board has also engaged in significant rulemaking. Unless the D.C. Circuit reverses itself – or the Supreme Court overturns the D.C. Circuit’s decision – all of the Board’s recent and controversial actions are in jeopardy. Undeterred, Board Chairman Mark Gaston Pearce has announced that the Board will continue issuing decisions and orders notwithstanding the D.C. Circuit’s decision.

Now that we are well into January of 2013, the President has no ability at the present time to recess appoint anyone as a Board member, and given the position of the White House that the appointments were constitutional, it seems unlikely that the President will nominate a package of Board members for Senate approval. In the meantime – while this issue continues to be reviewed by the Courts – the Board and its decisions and orders are in limbo.

Attorney Grant T. Collins also contributed to this report.

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Most recently, the NLRB ruled in DirectTV, 359 NLRB No. 54 (Jan. 25, 2013) that policies from DirectTV unlawfully infringed on employee rights to engage in concerted activity protected by the National Labor Relations Act (“NLRA”).

Limits on Third-Party Communications Must Not Be Overbroad

Specifically, the NLRB ruled that the following directives in DirectTV’s employee handbook violated the NLRA:

• “Do not contact the media.”

• “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”

• “If law enforcement wants to interview or obtain information regarding a DirectTV employee . . . the employee should contact the security department . . . .”

The Labor Board considered the first restriction overbroad because the NLRA would protect employees’ communications with the media about a labor dispute. The Board said the second rule was unlawful because “any rule that requires the employees to secure permission from their employer” to engage in protected communications is unlawful.

The NLRB found the last directive unlawful because a reasonable employee could interpret the ban on communicating with “law enforcement” to prohibit employee cooperation with NLRB investigations, which is protected by the NLRA. The Board seemed to suggest that a more limited rule, or at least one that exempted employee communication with Board agents, may be lawful.

Imprecise Definitions Are Fatal to Confidentiality Policies

The Labor Board also found two of DirectTV’s policies forbidding the disclosure of “confidential information” and “company information” unlawful because they limited employees’ ability to share “employee records” with other employees as well as “third parties such as union representatives, Board agents, or other governmental agencies concerned with workplace matters.” The NLRB concluded that a reasonable employee would construe the provision to prohibit sharing information on wages and other terms and conditions of employment.

Bottom Line

Non-union employers should be wary of handbook policies that broadly prohibit communication with other employees or third-parties because they could be read to restrict employee rights under the NLRA. Think carefully about the harms that you are trying to prevent through these policies and consider articulating them more precisely so that the Labor Board does not view them as overbroad and infringing on employee rights.

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Firing Employees Over Facebook Posts Is Risky Business

The National Labor Relations Act (“NLRA”) protects the activities of two or more employees (both union and non-union) who are discussing or trying to improve their terms and conditions of employment — even if the activity takes place on Facebook. What’s more, even a single individual’s actions might be protected if those actions are undertaken on behalf of a group of employees.

The first issue was the salesman’s Facebook post of photos of the refreshments offered at the dealership’s recent sales event, which the salesman found unsuitable. He included comments such as “No, that’s not champagne or wine, it’s 8 oz. water” and “[t]he small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club…were such a nice touch.”

The second Facebook post included photos of an accident at the adjacent Land Rover dealership owned by the same employer. A customer’s 13-year-old son had been allowed to sit behind the wheel where he apparently hit the gas, ran over his parent’s foot, and drove into a pond. The salesman also included the sarcastic commentary: “OOPS.”

As to the food-related post, the Board concluded that it may have been protected by the NLRA because it spoke on behalf of co-workers concerned about how their image affected sales and commissions. Nevertheless, the Board declined to rule definitively on this issue because the Board determined that it was the posting on the Land Rover post that ultimately caused the salesman’s discharge. In that regard, the Board ruled that the Land Rover post was not protected because it was not concerted and it did not relate to the salesman’s terms and conditions of employment. Instead, they concluded:

“It was posted solely by [the salesman], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.”

Split Panel Strikes Down Employer’s “Courtesy” Policy as Overbroad

In this same case, the Board ruled that the dealership violated the law by maintaining an overbroad policy on employee courtesy that read:

“Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The Board ruled that banning “disrespectful” conduct and language that might injure the “image or reputation” of the employer could reasonably be construed by employees “as encompassing Section 7 activity, such as employees’ protected statements — whether to coworkers, supervisors, managers, or third parties who deal with the Respondent — that object to their working conditions and seek the support of others in improving them.” The Board concluded “[N]othing in [the dealership’s] rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad breach.”

Bottom Line

The new guidance provides additional insight into the NLRB’s treatment of social media under the NLRA, as well as the consequences of drafting and circulating policies that are too broad, thereby unlawfully prohibiting protected concerted activity.

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