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The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME ... Make my day ..."

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social event. The first hour of the exchange was non-eventful and focused on planning the social event. Things soon got interesting when a former employee made a joke. In response, the Charging Party mentioned that a former employee who had previously left was coming back to work and speculated that Tasker may make the returning employee a supervisor. The Charging Party then attacked her current supervisor claiming he "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." But Charging Party was not done there and added, "[Tasker is] full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK ... FIRE ME ... MAKE my day ..." Other than Charging Party, no other current employees took part in this portion of the conversation, but one did pipe up after Charging Party complained following a two hour lull that she had been deserted and there was "[n]o one to make [her]laugh." In response, the current employee said she made the Charging Party laugh and added "it's getting bad there [at Tasker], it's just annoying as hell. It's always some dumb shit going on." The Charging Party did not have anything substantive to add to this and no other current employee added anything else work-related.

As you might have guessed, one of the current employees included on the group message who did not say anything during the exchange showed the Facebook posts to the employer. The employer took Charging Party up on her request to be fired stating that it was "obvious" that she was not longer interested in working there, and indeed made her day.

The employee filed a charge alleging that her termination violated the National Labor Relations Act ("NLRA") because her Facebook comments constituted protected concerted activity. In an Advice Memorandum, the NLRB Office of the General Counsel concluded that the employee's Facebook message did not constitute protected concerted activity because they did not involve shared employee concerns over terms and conditions of employment. To understand this conclusion, it is important to understand the NLRB's test for concerted activity, which is whether the activity is engaged "in with or on the authority of other employees, and not solely by and on behalf of the employee himself" and includes circumstances where employees seek to "initiate or to induce or to prepare for group action," and where individual employees bring "truly group complaints" to the employer's attention. However, comments made "solely by and on behalf of the employee himself are not concerted" are not protected and neither is "mere griping" by an employee who does not look forward to any action.

Applying this to the facts at hand, the Advice Memorandum found that the employee's comments merely expressed an "individual gripe rather than any shared concerns about working conditions." Specifically, the employee's comments telling a supervisor to "back the freak off"; stated her employer was "full of shit"; and that her employer should "FIRE ME ... Make my day" reflected individual "griping" and personal contempt rather than shared employee concerns over terms and conditions of employment. In addition, there was no evidence that any of the Charging Party's coworkers interpreted the postings as shared concerns over their working conditions, not even the posting "it's getting bad there[,] it's just annoying as hell" because it was ambiguous and bore no relation to the Charging Party's earlier comments.

Takeaways: This one is a win for employers, but employers are still reminded to be cautious when terminating an employee for the things they say on social media. This case demonstrates that even when an employee's comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA. So employers keep the NLRB's standard for concerted protected activity in mind before terminating an employer for social media posts and ask yourself: (1) What was said? (2) Who said it? (3) Who commented on it or chimed in on the conversation? (4) Could it be considered shared employee concerns about terms and conditions of employment?
 

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Recently, we pointed out that the effort by the National Labor Relations Board to impose on all employers an obligation to post notices about union organizing rights remains stalled. That article resulted in some questions about whether federal contractors and subcontractors are still required to post a notice about union organizing. The posting obligation for federal contractors and subcontractors is based on Executive Order 13496, which was signed by President Obama in 2009 and took effect in June, 2010. That obligation remains in effect for federal contractors and subcontractors. It is not changed by the NLRB's stalled effort to extend the obligation to all employers.

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It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted effort by the NLRB to support union organizing. Many considered the rule to go well beyond the NLRB's authority under the National Labor Relations Act. Lawsuits were filed in two federal district courts challenging the NLRB's authority to issue and enforce the rule. The lower court decisions in those cases were in conflict. A district court in South Carolina ruled that the NLRB had exceeded its authority and could not enforce the rule. The district court for the District of Columbia upheld the NLRB's right to issue and enforce the rule in general, but overruled two specific aspects of the rule. Both of these lower court decisions were appealed to the federal Courts of Appeal; the Fourth Circuit Court of Appeal which covers South Carolina and the D.C. Circuit Court of Appeal. As a result of the litigation, in April of 2012, the NLRB issued an indefinite stay on the enforcement of the rule. Since then, we have been waiting to see how the issue would be decided by the Courts of Appeal.

On Tuesday, the D.C. Circuit Court of Appeal issued its decision in National Ass'n of Manufacturers, et al. v. National Labor Relations Board, et al. (U.S. Court of Appeals for the District Court of Columbia Circuit, Case No. 12-5068). The Court found that the NLRB cannot enforce the posting rule. The majority decision invalidates the rule because it essentially forces an employer to communicate to its workforce about unionization. The majority found that doing so violates the employers' right under the National Labor Relations Act to speak or be silent about union organizing issues. Because the rule was invalidated on those grounds, the majority decision does not address the question of whether the NLRB can even issue a rule requiring employers to take some affirmative step, like a posting. One of the arguments in the case was that the NLRB's specific role under the law is conducting union organizing elections and investigating alleged unfair labor practices, and that they have no authority to make employers do anything outside that limited role.

So, where do things stand now? The NLRB had already imposed an indefinite stay on enforcing the rule, so clearly the rule is currently dead. The decision by the D.C. Circuit Court of Appeals may make it less likely the rule will ever re-surface. But do not be too sure of that.

The NLRB will probably continue to fight the case pending in the Fourth Circuit Court of Appeals to see if it can obtain a different result there. The NLRB can also appeal the issue to the United States Supreme Court. Certainly, we will report on any further developments.
 

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First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.

Just recently, two Ohio House of Representatives members, Kristina Roegner (R-Hudson) and Ron Maag (R-Lebanon), announced they are sponsoring bills that would enact right-to-work for both the public and private sectors in Ohio. There are two proposed avenues: by statute or by a constitutional amendment engraining right-to-work in the Ohio Constitution. The legislation encompasses a basic right-to-work provision and only prevents an employee from being forced to join a union or pay dues to a union as a condition of employment.

However, just the other day, all of this became a moot point—for now. Ohio Senate President Keith Faber announced that right-to-work legislation will not be taken up by the Ohio Senate. This effectively makes right-to-work “dead in the water.” It also has been reported that Governor John Kasich was not particularly interested in the idea. As of April 8, 2013, the New York Times’ expert pollster and election predictor Nate Silver of the FiveThirtyEight blog, places Governor Kasich in “better shape” for his reelection in 2014. According to Mr. Silver, surveys are showing Governor Kasich currently has a 50% job approval rating. This compares to a job approval rating in the 30s for Kasich in 2011 when Senate Bill 5 was in the forefront. For Kasich, he has nothing to gain (and everything to lose) by forcing a controversial issue and reigniting the firestorm.

But the question may be one of timing. Governor Kasich is up for reelection in 2014. Republicans are also trying to hold the U.S. House of Representatives and make gains in the U.S. Senate. Motivating unions to campaign with their union dues and get-out-the-vote efforts in 2014 by pushing right-to-work does not seem like the wisest course of action for Republicans in Ohio. It would heavily motivate the Democratic Party and Democratic voters. This was explicitly acknowledged by Ohio Senate President Faber, when he said “[t]he only purpose this discussion serves right now is to generate a bunch of breathless fundraising appeals from the Ohio Democratic Party.”

So, for now, right-to-work is on the minds of Ohio’s Republicans, but the expectation is no legislation will be forthcoming. Expect the issue to die out in time for the 2014 election, but then it may rear its head once again in 2015. If right-to-work can be enacted in Michigan, it can certainly be enacted in Ohio.
 

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The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging in what the Board deemed protected concerted activity after the employees posted messages on Facebook complaining about their working conditions. The Board also held the store violated the NLRA by maintaining a “Wage and Salary Disclosure” rule in its handbook prohibiting employees from disclosing information about wages or compensation to any third party or other employees.

The employees worked at a retail store in a tourist area in San Francisco. The store closed an hour later than other stores in the area, and employees claimed they felt unsafe leaving when the area was deserted. The employees directed their concerns to the manager, who they claimed did nothing. The employees went over the manager's head to the store owner who said they would close the store earlier. The manager got upset because the employees went around her to the owner and verbal arguments between the manager and employees ensued. So what did the employees do? Well, they did what every 20-something-disgruntled-clothing-store employee does when they are mad — they took to Facebook and posted about the situation to hundreds of their closest “friends.” While some comments were clearly unprotected venting that were not directed specifically to work conditions, e.g., “bettie page would roll over in her grave” and “I’m physically and mentally sickened,” one zinger was a more than a rant: “hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!”

And as many 20-something-clothing-store employees would do, one employee who saw the posts showed them to the owner who subsequently fired the other three employees. One of the terminated employees filed an unfair labor practice charge with the NLRB challenging the termination and the employer’s policy that prohibited employees from discussing their wages and salary.

By now, I think we know how this story ends. The NLRB found the Facebook posts were part of the employees' efforts to get the clothing store to close earlier based on safety concerns and thus, the store committed an unfair labor practice when it fired the employees. Neither the ALJ nor the Board bought the employer’s argument that the posts were an attempt to entrap the employer into firing the employees and were not intended for employees' mutual aid and protection. Going one step further, the NLRB held the posts themselves constituted protected concerted activity under the NLRA. Specifically, the NLRB found: “The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” the board's decision said. “Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.” The Board ordered the store to reinstate all three employees and to give them back pay. That reunion should be interesting!

Takeaways:

• This should be old hat by now as it follows the Board’s rulings in Karl Knauz Motors, Inc., case i.e., the “this is your car on drugs” and the Hispanics United of Buffalo Inc. case, i.e., the “a coworker feels that we don’t help our clients enough,” but, nevertheless, here we go again. If an employee complains in any forum about their working conditions, including on social media, those complaints likely are protected and an employer may not take adverse action against the employee for those complaints/posts.
• Employers cannot issue gag orders and prohibit their non-management employees from talking about their wage and salary information. An employer can argue that this information is confidential, but they will lose this argument in favor of an employee’s rights under the NLRA.

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Back in August, we alerted you to an NLRB decision in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438, in which the Board held that an employer’s blanket rule requiring employees to maintain the confidentiality of pending internal company investigations violated the employees’ Section 7 right to discuss discipline or disciplinary investigations involving their fellow employees. At the time, we expressed the concern that the NLRB's position complicates an employer’s ability to protect the integrity of an ongoing investigation. Nevertheless, at the time, we recommended that employers should treat each investigation on an individualized basis and that employers should document its specific business rationale for requesting employee confidentiality during an investigation.

Last week, the NLRB’s Division of Advice issued a Memorandum revisiting this issue. In Verso Paper, NLRB Div. of Advice, No. 30-CA-89350, 1/29/13 [released 4/16/13] Associate General Counsel Barry J. Kearney advised that the employer maintained an overbroad rule requiring employee confidentiality to maintain the integrity of all internal investigations. The company’s Code of Conduct specifically provided:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Reviewing this policy, Mr. Kearney reiterated the Board’s position from Banner Health that an employer must show more than a generalized concern with protecting the integrity of its investigations. “Rather, an employer must ‘determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up." Thus, according to Kearney, a blanket rule prohibiting employee discussions of ongoing investigations is unlawful because it does not require the employer first to demonstrate a particularized need for confidentiality in any given situation. He therefore advised the NLRB’s Region 30 Director to issue a complaint against the employer in the absence of settlement.

In a footnote to his Memorandum, Mr. Kearney provided employers with a safe harbor policy that would avoid the potential Section 7 pitfalls. Specifically, he noted that the first two sentences of the employer’s rule lawfully set forth a legitimate interest in protecting the integrity of its investigations and then recommended modifying the remainder of the rule to lawfully advise employees that:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

It is easy for employers to make any necessary changes to its policies. In addition, there is not a lot of gray area in the Board’s position as there was with respect to social media policies. Therefore, it is unlikely that we will see any actual litigation arising out of the Verso complaint if it gets issued or regarding any other similar company policies. As we previously pointed out, however, it is hard to imagine many, if any, internal investigations that could not be thwarted by the loose lips of co-workers. As a result, I expect that the next significant clash on this issue that goes before the Board will address actual employee discipline cases. When that happens, we will see how far the Board is willing to go to protect employees who interfere with their employer’s internal investigations.
 

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On the heels of three memoranda from its General Counsel, multiple ALJ decisions, and even one or two decisions of the full Board addressing employer social media and communications policies over the last couple of years, the National Labor Relations Board (NLRB)’s decision last week in DirecTV, which held that DirectTV's policies restricting certain employee communication were unlawfully overbroad, might be viewed by some as rather predictable. Nevertheless, despite the uncertain validity of recent Board decisions in general in light of the D.C. Circuit's Noel Canning decision (see our blog post from yesterday for more discussion of the Noel Canning decision), DirecTV is instructive precisely because of its apparent routine nature. In short, as Board decisions related to social media and employee communications become more predictable and routine, the more the employer community has some reasonable assurance that it can craft policies that can withstand NLRB scrutiny.

Communication with the Media:

DirecTV had two policies relating to communications with media that were challenged in this case. The first, a handbook policy, said, simply, “Do not contact the media.” The NLRB said that this policy violated employee rights under Section 7 of the National Labor Relations Act (NLRA) because it covered employee comments to reporters about labor disputes. The Board did offer some guidance about what might be required of a permissible policy, finding that the rule should have differentiated between protected (by Section 7) statements and non-protected statements, like those that are maliciously false.

The second media communication policy, a “Public Relations” policy on the company intranet, said, in part, “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board struck down this policy as well, holding that it would prevent workers from expressing disagreement with DirecTV to the media about labor disputes, including those about wages, hours, or terms and conditions of employment. These rights are protected by Section 7 of the NLRA. The Board noted that the rule made no attempt to limit its application to statements about proprietary information, which presumably would have been permissible.

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As the D.C. District Court's long-awaited decision in Noel Canning v. NLRB, invalidating President Obama's January 2012 "recess" appointments, likely heads to the United States Supreme Court, here's what employers need to know in the interim about the impact of that decision.

The Background

As we explained in our post, President Obama's Move to Sidestep the Senate with Recess Appointments, when the National Labor Relations Board's ("NLRB") normal five-person membership fell to two in late 2011 when Craig Becker's (who had also been an Obama recess appointee) appointment expired and the agency, therefore, lost its statutory authority to issue rulings, President Obama made three appointments in early 2012 as the Senate was scheduled to leave on holiday break, which sparked a host of controversy.

The controversial appointments included the appointment of Democrat Sharon Black, a Labor Department Official; Democrat Richard Griffin, General Counsel for the International Union of Operating Engineers; and Republican Terrance Flynn, an NLRB attorney.

Setting the Stage for a One-To-Watch Decision

So why the controversy? Well, President Obama made the appointments while the Republican Senate was holding pro forma sessions over the holiday to technically avoid going into recess. While this tactic was certainly not a new one, as it had been used by other Congresses to avoid triggering the president's recess appointment power, President Obama's move was particularly aggressive because the Senate was meeting every three days with the specific purposes of staying in session and denying him the chance to make recess appointments. With the standoff, President Obama called the Senate's bluff and seated all NLRB nominees.

The recess appointment issue is the focus of over a dozen lawsuits, many of which remain pending, but the lead case — the one to watch — has always been Noel Canning v NLRB pending in the D.C. District Court, which we first introduced you to back in March 2012 in A New Challenge to President Obama's Recess Appointments in Federal Court Means a Decision on the Constitutionality of the Appointments is Getting Closer. The attention certainly is warranted, but not because of the underlying facts, which concern a run-of-the-mill, routine labor dispute. Where it gets interesting is that the decision was decided by three of the five NLRB members, two of whom were "recess" appointees. The case was appealed to the D.C. District Court and the issue to be decided was whether the three-person decision had the necessary quorum of at least three members to be valid. Because the three temporary appointees, were arguably, not legally appointed, the decision was subject to nullification.

The challenge was based on the United States Supreme Court's 2010 case New Process Steel, L.P. v. NLRB where it held that the five-member NLRB could not delegate its authority to fewer than three members. Thus, a two-person board is not a quorum and is powerless to render decisions. Since Wilma Leibman's term expired in August 2011, the NLRB had been functioning as a three-member unit. The NLRB lost that three-person quorum when Becker's term expired at the end of 2011. When President Obama made the three "recess" appointments, the NLRB only had two members. Therefore, if the President's three "recess" appointments were unconstitutional, arguably every decision made by the NLRB with the recess appointments sitting as quorum effectively would be moot.

The D.C. District Court's Decision

The D.C. District Court issued a two-part decision and held that President Obama's "recess" appointments in January 2012 were constitutionally impermissible.

Part One: The appointments were "made when the Senate was not in Recess" because the President's recess appointment power does not apply to "intrasession" appointments, only "intersession" appointments.

The first part of the court's ruling was unanimous and answered the question: "How long must the Senate be away to technically be on 'recess'"? Article II, Section 2 of the Constitution gives the President the "[p]ower to fill up all vacancies that may happen during the recess of the Senate," and these recess appointments do not have to be filled by the Senate. The Constitution does not specify how long the Senate had to be in recess to trigger the President's appointment power so the court answered it, and held that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, and not during a break between two sessions of the same Congress. Therefore, the President's recess appointment powers do not apply to "intrasession" appointments i.e., those made when Congress has left town for a few days or weeks.

The court's opinion affirmed the "original meaning" mode of interpreting the Constitution, meaning the judges reviewed the constitutional issue by looking at what the framers meant by the words when they originally wrote them. The D.C. District Court reviewed the history of the Recess Appointment Clause, and concluded that "Recess" referred to intersession recesses and not the generally shorter intrasession ones and found:

We hold that "the Recess" is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the test, history and structure of the Constitution, these appointments were invalid from their inceptions. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.

The court found that to interpret "the Recess" to include other breaks in Senate business would give the President "free rein" to make appointments "at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction." Thus, the judges made a bright-line decision in holding that the Senate only recesses, for purposes of the President's recess appointment power, at the end of the year.

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Just when employers were thinking they might have to throw out their at-will disclaimers, the National Labor Relations Board Acting General Counsel released an analysis of two at-will employment clauses (Mimi's Café, Case Number 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), and in finding both lawful under the National Labor Relations Act ("NLRA"), gave employers a Halloween treat!

The first at-will disclaimer analyzed was contained in Mimi's Café's handbook (a company acquired by Bob Evans Farms, Inc. in 2004), that provided:

AT-WILL EMPLOYMENT
The relationship between you and Mimi's Café is referred to as "employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

The second challenged at-will provision was in Rocha Transportation's Handbook that provided:

Statement of At-Will Employment Status
Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

This Handbook also contained an "Acknowledgment of Receipt" employees were required to sign that noted "nothing in the employee handbook creates or is intended to create a promise, contract, or representation of continued employment ..."

The bolded provisions were challenged as violating Section (a)(1) of the NLRA because they were allegedly overly broad and would reasonably chill employees from exercising their Section 7 rights to select union representation and engage in collective bargaining.

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Following closely after the NLRB's first social media decision in Costco Wholesale Corporation (NLRB Case No. 34-CA-012421) just weeks ago, an ALJ for the Board has issued a mammoth 43 page decision in EchoStar Technologies (NLRB Case No. 27-CA-066726) striking down numerous employer policies that in his opinion unlawfully chilled employees' rights to engage in protected concerted activity.

This post takes a look at the policies challenged in the EchoStar decision and summarizes where employers stand now.

To understand the NLRB's recent decision in EchoStar, it is important to first understand where the NLRB is coming from. When reviewing employer policies, whether they be social media related or not, the Board and its ALJs focus on whether the challenged policy would reasonably tend to "chill" employees in their Section 7 rights, which include the right to discuss and complain about their issues such as wages, hours, and working conditions with other employees and to disclose, discuss and complain about those matters to labor organizations and to the public. Whether a particular employer policy would "reasonably tend to chill employees" in their exercise of their Section 7 rights is judged objectively by whether it is likely to have a chilling effect on Section 7 rights, even if the employer has never even enforced the policy.

Keeping this background in mind, let's go through each of the employer policies that were at issue in EchoStar to see where the ALJ came out and why.

EchoStar: Unlawful.  The ALJ found that a reasonable employee would read the prohibited action "disparaging" to intrude on protected conduct and struck down the policy in full. In essence, the ALJ accepted the NLRB General Counsel's argument that handbook’s “blanket” prohibition of employee “disparaging comments” … “fails to make exception for statements and comments that, although critical or harsh, may enjoy the ’[NLRA]’s protection”. This is consistent with the Costco decision where the Board struck down a broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation”. The ALJ, however, expressed that a policy could prohibit "malicious gossip" or "malicious statements."

EchoStar: Unlawful. Although the ALJ did not detail his reasons for striking down this policy, the General Counsel argued that the Handbook did not define what was considered "Company time" as opposed to "working time and there was no indication that any lawful limits were ever communicated to employees. Taking this cue, had the policy prohibited employees from engaging in social media activities during "working time" and narrowly defined working time in the context of their employment with EchoStar, the policy might have survived the ALJ's scrutiny.
 

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Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what sorts of social media policies the General Counsel believes violate Section 7. The NLRB considers but is not bound by the General Counsel’s guidance when issuing decisions. Until recently, the NLRB itself had not had occasion to issue a decision on a social media policy.

In Costco Wholesale Corporation (NLRB Case No. 34-CA-012421), the NLRB considered a social media policy for the first time. The NLRB invalidated portions of Costco’s policies and in doing so signaled that it will probably track closely with the General Counsel’s guidance when reviewing social media policies. That means a very aggressive review and the likelihood that policies which are not drafted narrowly and carefully will be struck down.

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With Martin v. Spring Break '83 Productions, LLC,, the Fifth Circuit put a much-needed (and 30-year-in-the making) dent in a long line of case law refusing to enforce private Fair Labor Standards Act (FLSA) waivers between employees and employers that are not approved by the Department of Labor (DOL) or by a court during litigation. This case is one that will be well-received by employers and, optimistically, followed by courts outside the Fifth Circuit, which governs Louisiana, Mississippi and Texas. With any luck, FLSA settlements will be increasingly private matters between employer and employee, like other agreements settling employment-related claims, and the requirement that FLSA claims be released only through long protracted and expensive litigation be the exception, not the rule.

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In recent months, the National Labor Relations Board (NLRB) has grabbed the attention of many employers, union and non-union alike. NLRB decisions and guidance documents have found that a number of very common company policies and practices violate employee rights under Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to communicate with co-workers about wages and other working conditions and to act together, including by supporting or joining unions.

In a decision on July 30, 2012, the NLRB continued the trend of finding legal fault with practices that may sound very familiar to you. The decision is Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438. One of the issues in the case was the company's routine practice when conducting internal investigations to ask the complaining employee and all witnesses interviewed not to discuss the matter with co-workers while the investigation was ongoing. Sound familiar?

The employer argued that it had a right to request employees not to discuss ongoing investigations in order to protect the integrity of the investigation. This is a common employer concern. Widespread discussion of an ongoing investigation can compromise future interviews by making people aware of the issues before they are talked to. Talk in the workplace about an ongoing investigation could also cause employees to feel intimidated about cooperating. The NLRB found the employer practice an illegal restriction on the rights of employees to discuss workplace issues among themselves. The NLRB considered but rejected the employer's argument that the caution about confidentiality was merely a request, not a mandatory rule. The NLRB left the door open for an employer in some cases to justify a prohibition on employee discussions of ongoing investigations. But, the NLRB said to justify that restriction, the employer would have to be able to show a specific legitimate business justification, not a generalized concern. As an example, the Board said that the employer should be required "to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover-up."

The NLRB's position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case.

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On May 30, 2012, the NLRB's General Counsel's Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board's regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers' confusion on what they can and cannot include in their social media policies -- even though the GC took the unusual step of appending to the Memo a social media policy that it considered entirely lawful.

Having spent a fair bit of time pondering the significance of this Memo, I have arrived at this conclusion: Though I am pleased to have a policy that the General Counsel's office has endorsed, the highly nuanced distinctions made between policies considered lawful and unlawful are baffling.

Here are a few examples:

Regarding defamation:

LAWFUL:

Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers people working on behalf of [Employer] or competitors.

UNLAWFUL

You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their products/services.

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Continuing its campaign to educate workers, particularly those in non-union settings, regarding their Section 7 rights, the National Labor Relations Board this week launched a new webpage on its website specifically to describe protected concerted activity and to apprise workers of their rights "to act together for their mutual aid and protection, even if they are not in a union."

Section 7 of the National Labor Relations Act ("NLRA") states that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

To demonstrate what Section 7 rights look like in action, the webpage contains 13 case examples from around the country of employer discipline that the Board found unlawful, which can be viewed by clicking points on a map. The case examples are wide-ranging and span the typically-thought-of examples of employees registering complaints directly to their employers to cases where employees aired their employer grievances on YouTube and Facebook. The diverse range of case examples appears to be a conscious effort by the NLRB to spotlight the ever-expanding face of Section 7 concerted activity in light of social media.

Some of the highlighted cases include stories of:

• Five construction employees fired after several of them appeared in a YouTube video complaining of hazardous working conditions;
• A customer service representative fired after discussing wages with another employee, based on a policy in the company handbook that the NLRB found was unlawful;
• A paramedic fired after posting grievances about her supervisor on Facebook following a work-related incident;
• An employee fired and threatened with deportation after he delivered a petition protesting their poor living conditions and irregular hours that was signed by several dozen welders who were performing contract work under temporary visas; and
• Two women fired for telling a newspaper that they, along with a group of poultry workers, walked off the job to protest a new requirement that they pay 50 cents per pair of latex gloves that they used.

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The NLRB was issued a stunning rebuke yesterday by U.S. District Court Judge James Boasberg (an Obama appointee) when he ruled that the NLRB's controversial union election rule changes were invalid because they were enacted without the required three-member quorum. The NLRB may appeal Judge Boasberg's decision. However, at least for the present, the Court's decision in Chamber of Commerce, et al. v. NLRB renders the union election rule changes, which took effect April 30, 2012, null and void.

The election rule changes have been the source of considerable tension between employer and union groups for the past year. They were predicted to shorten the period for union elections from the current average of approximately 40 days to as few as 10 to 21 days after a union election petition is filed. The NLRB and pro-labor groups contended the rule changes were desirable because they would streamline the election process and cut down on litigation costs. Employer groups came out strongly against the election rule changes, contending that they gave unions an unfair advantage.

The employer group's strong opposition to the rule changes was shared by NLRB Member Brian Hayes, the lone "Republican" appointee on the Board when the NLRB took its final vote on the rule changes in December, 2011. In fact, Member Hayes was so strongly opposed to the election rule changes that he threatened to resign prior to the vote being taken to prevent the NLRB from having the three-member quorum necessary to approve the rule changes. Ultimately, Member Hayes decided not to resign. However, when the NLRB used its electronic case management system to circulate the final rule among the NLRB's three Members, Member Hayes did not cast a vote or enter an appearance. The other two NLRB Members, both Democratic appointees, did cast votes to adopt the rule changes. The NLRB proceeded with implementing the rule based on those two favorable votes.

The U.S. Chamber of Commerce filed suit seeking to enjoin enactment of the rule changes within days of NLRB's December vote. The Chamber's lawsuit raised multiple substantive and procedural challenges to the election rule changes. However, Judge Boasberg found that it was unnecessary to rule on any but one of the Chamber's arguments because he agreed that the NLRB lacked the authority to issue the rule changes. In what will likely be an oft quoted passage from the decision, the first paragraph of Judge Boasberg presaged the outcome: "According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically."

The NLRB may appeal Judge Boasberg's decision. Or, it may go back and take another vote on the election rule changes. However, any vote now taken also will be taken with the backdrop that federal litigation is now pending that challenges the three recess appointments that President Obama made to the NLRB on January 4, 2012.
 

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Starbucks recently won a limited victory in a case involving employees wearing pro-union buttons at work. National Labor Relations Board v. Starbucks Corp. Court of Appeals Second Circuit, Case No. 10-3511. A common union organizing tactic is to have pro-union employees wear union buttons at work. Employers often have the mistaken impression that they can ban union buttons at work as part of their dress code or uniform policy. But, the NLRB and courts have consistently held that expressing support for unions by wearing buttons on clothing is a protected means of expression about union organizing. Even if the company policy is to ban other sorts of buttons, like political campaign buttons or sports team buttons, union support buttons cannot be prohibited because wearing them is a special protected form of expression. Employers can restrict wearing union-support buttons only in very limited circumstances, such as when the buttons may scratch or otherwise damage products.

Even though Starbucks prevailed ultimately, the case illustrates how aggressively the NLRB enforces the rights of employees to wear union buttons at work. Starbucks was actually allowing employees to wear one pro-union button while working. The problem came when some employees insisted on wearing multiple union buttons at the same time. In fact, one worker was wearing eight union buttons. Starbucks argued that multiple union buttons detracted from the the impact of certain company-issued buttons and badges relating to the business. The NLRB held that Starbucks could not limit employees to wearing only one pro-union button. Starbucks appealed and the Second Circuit Court of Appeals reversed the NLRB and held that Starbucks could limit employees to wearing just one pro-union button at a time. The Court also reversed an NLRB finding that Starbucks had fired an employee for union activity and sent a similar claim regarding another worker back to the NLRB for further consideration.

The lesson: If you are faced with employees wearing pro-union buttons, pins, hats, t-shirts, etc., do not presume you have the right to ban or limit those actions. It is not enough to argue that you enforce restrictions consistently. The right to express support for unionization by wearing the message is one protected under the National Labor Relations Act. You should contact legal counsel before deciding how to handle the issue.
 

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The National Labor Relations Board has postponed indefinitely the effective date for its employee rights posting requirement. On its website, the NLRB states:

"The rule, which had been scheduled to take effect on April 30, 2012, will not take effect until the legal issues are resolved. There is no new deadline for the posting requirement at this time."

The NLRB's action is a result of the decision of the D.C. Circuit Court of Appeals earlier this week enjoining the posting rule while the appeal before that court is pending. (See our earlier post - NLRB Posting Rule Lifted:  At Least For Now.)

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In an order issued today, the Circuit Court of Appeals for the District of Columbia granted a temporary injunction, barring the NLRB from enforcing its posting rule, at least while the appeal before that Court is pending.

We reported yesterday about the decision by a federal District Court in South Carolina invalidating the NLRB posting rule. As we noted, that decision is in contrast with an earlier decision by a federal District Court for the District of Columbia upholding the NLRB's right to impose the rule. The D.C. District Court decision is currently on appeal to the Circuit Court of Appeals for the D.C. Circuit, which issued the injunction order today. The Court set a briefing schedule for hearing the appeal and directed that oral arguments be set for some time in September. That means the temporary injunction will stay in place at least until sometime this fall.

So, if you are keeping score: the NLRB's rule requiring posting was to take effect on April 30. Both cases filed in federal court challenging the rule have gone against the NLRB, at least for now. The dust will not have settled completely until these cases are decided on appeal. In fact, if there are conflicting decisions in the Courts of Appeal, the issue could reach the U.S. Supreme Court. But at least for now, employers will not be required to post the NLRB employee rights notice on April 30.

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Friday the 13th was unlucky for the National Labor Relations Board. A Federal District Court for South Carolina ruled on Friday that the NLRB overstepped its authority by issuing a rule requiring employers to post notices. In Chamber of Commerce of the United States v. NLRB, Case No. 2:11-CV-02516-DCN (D.S.C. April 13, 2012), Judge Norton considered the limits on the rights of federal agencies to impose obligations which are different from those Congress has imposed by law. The NLRB was created by Congress under the National Labor Relations Act (NLRA). Relying on the language of the NLRA, Judge Norton found that the NLRB was created to be reactive, not to create new obligations. The Judge found that the NLRB has two roles: conducting union representation elections; and deciding unfair labor practice charges. The Judge decided that because the NLRB has a purely reactive role, and because the NLRA does not establish any obligation for employers to post notices, the NLRB overstepped its authority by issuing the notice posting rule. The Judge noted the fact that in at least eight other federal workplace laws, Congress did include a posting requirement. The Judge reasoned that if Congress had intended a posting requirement under the NLRA, it would have been included in the statute.

The decision is in stark contrast with the earlier decision in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. March 2, 2012). In that case, the Federal District Court for the District of Columbia upheld the Board's right to require posting. (For more discussion about this case, please see our previous post - Federal Court Upholds NLRB Posting Rule.) The D.C. District Court case is on appeal and it is likely the NLRB will appeal the decision of the South Carolina District Court.

So, with conflicting decisions by federal courts in two different parts of the country, what is an employer to do? It is possible the NLRB will postpone the current April 30, 2012 effective date for the posting rule. We will post a notice in this Blog if that happens. But, if the NLRB does not postpone the effective date, it will expect employers to post by April 30, with the possible exception of employers in the jurisdiction of the South Carolina District Court.
 

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None of the various legal challenges to the controversial NLRB posting rule have yet been effective. As things stand now, with only a few very narrow exceptions, all employers will be required as of April 30 to post a notice in the workplace advising employees of their rights regarding unions and their rights to discuss wages and other working conditions with co-workers (see our previous blog posts: "NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights," and "NLRB Posting Requirement Delay - New Date January 31, 2012.")  As we reported recently, the federal court for the District of Columbia upheld the NLRB's right to require the posting. The District Court Judge also rejected a request for a temporary delay (injunction) on the posting requirement while the case is appealed. That means that unless the Appellate Court either issues an injunction or issues a decision between now and April 30 reversing the lower court, the posting requirement will go into effect as scheduled. There is another legal challenge to the posting rule pending in a federal District Court in South Carolina, but no decision has been issued in that case and there is no reason to expect one will be issued before April 30.

The poster is available on the NLRB's web site at www.nlrb.gov. Also, various businesses which offer reproductions of government-required employment postings have already developed products that incorporate the new NLRB posting.

The poster is titled "Employee Rights Under the National Labor Relations Act." It must be posted at all workplaces in conspicuous locations and must be no smaller than 11" x 17". The NLRB also requires employers to include a link to the poster on internal or external web sites if other employment policies are posted there. The poster gives employees a detailed list of their rights under the National Labor Relations Act (NLRA). The rights highlighted in the poster include:

• The right to join a union;
• The right to bargain with the employer through representatives, such as a union, about wages, benefits, hours, and other working conditions;
• The right to discuss wages and benefits and other working conditions with co-workers;
• The right to take action with co-workers to improve working conditions by, among other things, making internal complaints to the employer or to a government agency or by asking for help from a union; and
• The right to strike and picket;

The poster also notifies employees, in one bullet point, that they alternatively have the right to "choose not to do any of these activities."

The poster also advises employees that it is illegal for an employer to prohibit employees from talking about unions during non-work time, such as breaks or before or after work. It notes that it is illegal for an employer to question employees about their support for a union in a way that discourages them from supporting a union, and to make promises of benefits in order to discourage union support. The poster also notes certain things that unions are not permitted to do, such as threatening or coercing employees to get them to support the union. Finally, the poster advises employees of how to file charges if they feel their rights are being violated.

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While the NLRB Posting Rule, which is scheduled to become effective April 30, 2012, has rightly received much attention from concerned employers and employer advocacy groups, it isn't the only thing non-union businesses should be concerned about in the coming weeks.

Last Friday, March 23, 2012, an NLRB spokesperson confirmed that the NLRB intends to also launch a website in April that will provide information to non-union workers about their rights under the National Labor Relations Act that includes information far beyond their rights with respect to forming a union. According to the spokesperson, the website will focus on educating workers about their rights to engage in protected concerted activity and will include specific examples based on real life cases. We would expect these examples to include that the NLRA gives employees the right to discuss their wage rates with one another, and that they have the right to express their views about employer policies and practices even in terms that the employer may consider to be disloyal or insubordinate.

This is an area of the law that has received relatively little national attention for decades. We suspect that many employers make disciplinary and termination decisions without properly assessing whether the employee's rule violation might actually be deemed by the NLRB to be protected concerted activity. Employers would be well-advised to educate themselves in this area before the NLRB educates their workforces.
 

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The first challenge to President Obama's recess appointments, which was an attempt to bootstrap the issue to a federal lawsuit targeting the constitutionality of the National Labor Relations Board's ("NLRB") notice-posting rule, has come and gone. The court did not address the constitutionality of the President's appointments, who emerged unscathed. Now, and more determined than ever, business groups are picking up the gauntlet and challenging the appointments through more conventional means.

As we reported earlier, the National Right to Work Foundation (“NRWF”), was the first to ensure the issue of the constitutionality of the President's appointments would be decided when it filed motions in six cases it has with the NLRB seeking to disqualify the three purported recess appointees from participating in those cases.

On February 24, 2012, Noel Canning, a bottling company, took a different approach and filed a lawsuit (Noel Canning v. NLRB, No. 12-1115 pending in the United States Court of Appeals for the District of Columbia Circuit) appealing the NLRB's February 8, 2012 decision that held that it violated the National Labor Relations Act ("NLRA") by unlawfully refusing to reduce to writing a verbal collective bargaining agreement with a union. According to Noel Canning's Petition for Review, the NLRB's decision was invalid. While the decision was decided by three of the five NLRB members, two of the three decision makers (Sharon Block and Terence F. Flynn) are two of the controversial appointees whose appointments are being challenged as unconstitutional. Accordingly, if the recess appointments are deemed unconstitutional, the decision was rendered by only one NLRB member, not with the statutorily required quorum of at least three members, and the decision would be invalid.

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We reported yesterday about the decision in the federal District Court for the District of Columbia which upheld the NLRB rule requiring a posting about union organizing rights. The plaintiffs in that lawsuit who were challenging the posting rule filed an appeal Monday in the D.C. Circuit Court of Appeals. In the appeal, the National Association of Manufacturers and the other plaintiffs have asked the Court to issue an injunction stopping the NLRB from implementing the posting rule on the current April 30, 2012 effective date and delaying implementation until the appeal has been decided. We will keep a close eye on the case and report any further developments, particularly any impact on the current April 30 effective date.

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In a decision on Friday, March 2, the federal District Court for the District of Columbia upheld the right of the National Labor Relations Board (NLRB) to require all employers to post a notice regarding employee rights to join unions. National Association of Manufacturers, et al. v. National Labor Relations Board, et al., U.S.D.C. 1:11-cv-01629. The posting rule is currently scheduled to take effect on April 30, 2012. At least one of the parties that filed the challenge in the D.C. Circuit has promised to appeal and there is a similar challenge to the rule still pending in federal district court in South Carolina. Chamber of Commerce of the United States, et al. v. National Labor Relations Board, (Dist. S. C.) 2:11-cv-02516.

Judge Amy Berman Jackson upheld the NLRB's right to impose the posting rule, finding that the National Labor Relations Act (NLRA) gives the NLRB broad authority to make enforcement rules. The Judge rejected arguments by the National Association of Manufacturers, the National Right-To-Work Legal Defense & Education Foundation, and the Coalition for a Democratic Workplace challenging the NLRB's right to require posting. However, the Court did not reject all of the arguments challenging the posting rule. The Court ruled that the NLRB overstepped its authority by including in the rule provisions saying that failure to post is automatically an unfair labor practice. The Court also struck down that portion of the rule which said that if an employer fails to post, the time limit for an employee to file an unfair labor practice charge would not begin to run.

A few important questions remain after this decision. First and foremost, will the NLRB stand firm on its April 30th deadline for posting, even if this decision is appealed and even if the South Carolina case is still pending? We will follow that question closely. Another question raised by this decision is how the NLRB will enforce the posting rule, considering the Court's ruling that failure to post is not, standing alone, an unfair labor practice and that failure to post does not have the effect of delaying the start of the time limit for filing an unfair labor practice charge.

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The Columbus Dispatch reported on February 14, 2012 that a majority of Ohioans responding to a recent poll believe Ohio should become a "right-to-work" state. In most respects, federal law, not state law, governs collective bargaining and union membership. But, "right-to-work" legislation is one area in which states have successfully regulated union rights. Many collective bargaining agreements (CBA's) require that an employee become at least a "financial member" of a union – meaning the employee must pay regular union dues, fees, and assessments in order to keep his or her job. In a "right-to-work" state, it is illegal for a CBA to mandate that employees join or financially support a labor union. Currently, 23 states have "right-to-work" laws.

Of course, "right-to-work" laws are strenuously opposed by organized labor. Unions feel that those laws make it too easy for employees to be in a group covered by a union contract but, at the same time, refuse to pay union dues to support the union's efforts. For example, presume a union wins a secret-ballot election by a majority vote to represent a group of workers. The union has to represent the interests of all the workers, even those who did not vote for or who do not join the union. Unions argue it is unfair if some of the workers are able to be represented without having to pay union dues. By contrast, supporters of "right-to-work" legislation consider it unfair in any circumstance for an employee to be forced to support a union, financially or otherwise, as a condition of keeping his or her job.

In this poll, participants were asked this question: "Indiana recently became a 'right-to-work' state, meaning that workers can no longer be required to join a union or pay dues or fees to a union as a condition of employment. Do you think that Ohio should become a 'right-to-work' state or don't you think so?" Fifty-four percent (54%) of those polled said that Ohio should become a "right-to-work" state. Not surprisingly, 77% of Republicans polled supported, while 61% of Democrats polled opposed "right-to-work."

This apparent support for a "right-to-work" law in Ohio may surprise some, given that in November an overwhelming majority of Ohio voters rejected Senate Bill 5, a law which many saw as anti-union legislation. But, keep in mind that the Senate Bill 5 vote in November came after months of extensive media coverage of the issues and campaigning by union-represented firefighters, police, and school teachers opposing the Bill. Rest assured that if "right-to-work" legislation gains traction in the Ohio legislature, it will be the subject of much media attention as well as vocal support and opposition from interested parties.
 

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The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), held its hearing Wednesday, February 7, 2012 titled, “The NLRB Recess Appointments: Implications for America’s Workers and Employers.”

As Chairman Kline explained in his opening remarks, the Committee's "primary concern is the fear and uncertainty [that President Obama's] action [in making three recess appointments to the National Labor Relations Board ("NLRB")] has unleashed – the fear of the activist NLRB’s future actions and the uncertainty of whether its mandates and decisions can stand under constitutional scrutiny.”

Given that the Chairman framed the issue as a "constitutional crisis," noting, “[t]he highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged," it is no wonder that the recess appointments did not weather well under the Workforce Committee's aggressive oversight.

Chairman Kline continued his assault on President Obama's recess appointments by referring to President Obama's actions taken during the Senate's pro forma sessions as, creating an "embarrassing contradiction":

According to the rationale of the administration, pro forma sessions are nothing more than a “gimmick” that do not interrupt a recess of Congress; therefore, the president can fill these positions without the Senate’s consent. Decisions based on shaky legal ground can often lead to embarrassing contradictions. Days before the president decided to become the arbiter of congressional rules and proceedings, Congress approved a bill to prevent a tax hike on millions of Americans. Later that day the president signed that very same bill into law. Either the payroll tax cut passed by the Senate during a pro forma session is the law of the land and the recess appointments are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointments should stand. No amount of legal manipulation can allow the president to have it both ways.

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When we left off, numerous business groups had lobbed the first attack at President Barack Obama’s three recess appointments to the National Labor Relations Board (“NLRB”) by adding it to their pending lawsuit challenging the NLRB’s highly controversial “Notice Posting Rule,” set to take effect on April 30, 2012.

On January 30, 2012, the NLRB responded, but opted to stay clear of the issue on everyone’s mind—whether the appointment were constitutional or not? Instead, it punted the issue and took a safer approach arguing that the business groups lacked standing to challenge the appointments in the notice-posting lawsuit. The crux of the NLRB’s response was that the notice-posting rule was promulgated before the recess appointments were made. Thus, the newly-constituted NLRB—constitutional or not—will not have to actually act for employers to be under a legal duty to post the required notice come April 30th. The NLRB also argued that any purported injury suffered would be purely speculative and is “not sufficiently concrete to confer standing."

The business groups will have an opportunity to respond, but one of the groups, the National Right to Work Foundation (“NRWF”), has already taken steps to ensure that the issue of the constitutionality of the appointments will be decided, one way or another. It did so, as we predicted, by filing motions (click here to see the motion filed in Stewart v. UFCW Local 99 & Fry’s Foods of AZ) with the NLRB to disqualify the three purported recess appointees from participating in its six cases pending before the NLRB. Like in the federal lawsuit, the NRWF argues that the appointments are unconstitutional and that the Board lacks the quorum necessary to hear cases. It is likely that we will see many other businesses and business group filing similar motions with the NLRB.

The cases involved are: Richards & Yost v. Steelworkers; Sands v. Food & Commercial Workers; Gray v. Coupled Products, LLC & UAW Local 2049; Lugo v. Electrical Workers Local 34; Geary v. Nurses & Allied Professionals Local 5008; and Stewart v. UFCW Local 99 & Fry’s Foods of AZ.

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On Wednesday, the NLRB General Counsel's Office issued its second report on social media cases that have been brought to it for advice by regional directors. Our take on the first Report can be found here.  As noted in the Board's press release which links to the Report, the Report covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised. The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

With respect to the discharge cases, the Board's press release notes that the Report underscores that "[a]n employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." Indeed, as we have noted previously, the Board does appear to be gaining some consistency in this regard. Somewhat troubling, however, is the Board's continued reliance on whether and how co-workers respond to the Facebook post in determining whether the original post is entitled to Section 7 protections. Doing so seems like an easy vehicle for potentially transforming what really was a personal gripe without any obvious intent to initiate or induce coworkers to engage in group action, into what the Board views as concerted activity. On the other hand, the Board hopefully will continue to view negative co-worker responses as evidence of the lack of concerted activity.

With respect to the lawfulness of social media policies, the Board's press release notes simply that "[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees." Though the cases cited in the Report give employers some examples of permissible policy provisions, it is still lacking in more concrete general guidance about what is permissible. In particular, the Report fails to give a clear thumbs up or thumbs down to the effectiveness of a disclaimer in a social media policy that disavows any intent to restrict employees' rights to communicate with each other regarding terms and conditions of employment.
 

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On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board (“NLRB”).

Procedurally, the groups bootstrapped their challenge to a lawsuit pending in the U.S. District Court for the District of Columbia challenging the NLRB’s highly controversial “Notice Posting Rule” that would require businesses to post notices and inform employees right to bargain collectively, distribute union literature, and engage in other union activities without reprisal under the National Labor Relations Act (“NLRA”), which is set become effective April 30, 2012.

As we more fully discussed here on January 6th, the NRLB lost its quorum when former Member Craig Becker’s term expired on January 3, 2012. President Obama then appointed Terence Flynn, Sharon Block, and Richard Griffith to the NLRB. The business groups argue in their motion and accompanying legal memorandum that these appointments are “unconstitutional, null and void,” because they were done while the Senate was in session, leaving no “recess” during which time President Obama could make appointments “without seeking or obtaining the advice and consent of the Senate.” As a result, the NLRB, with only two members, lacks the necessary quorum and ultimately “authority to implement or enforce” the Notice Posting Rule pursuant to New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).

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The last six weeks or so have brought us a flood of NLRB General Counsel Advice Memoranda addressing whether an employee's social media activity is protected concerted activity for which he or she may not be disciplined. In his excellent Ohio Employers Law Blog, John Hyman discusses four of them and suggests that the NLRB may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases. In three of those cases, the General Counsel's Office recommended dismissal because the employee at issue was merely venting an individual gripe and was not seeking to incite group action. In the fourth, the General Counsel's office concluded that the employee was rightfully terminated after refusing to delete a comment accusing the employer of fraudulent accounting practices after it was demonstrated that her allegations were false.

On January 3rd, the General Counsel's Office issued two new Advice Memoranda relating to social media issues. In Miami Jewish Health Systems, the charging party, a nurse who had been transferred from the ICU to another position, wrote an email, though Facebook, to a former co-worker who still worked at the hospital. In her email, she asked if the manager was "still there making life miserable for u guys" and if he was "still the wimp he is." In addition, he asked, "How long u gonna put up wit that?" The former co-worker apparently didn't share the charging party's views on the manager and reported the charging party. The General Counsel's Office concluded that the charge should be dismissed relying again on the concept that the employee was simply airing a personal gripe and was not an effort to initiate group action.

The second Advice Memorandum, Thomson Reuters provides an opportunity to update to an earlier post of ours here where we discussed a news article on this dispute. The Advice Memorandum discusses several issues arising out of what appears to have been some fairly contentious collective bargaining. During this time period, the employer invited employees to visit its new Twitter feed and encouraged them to "join the conversation on making Reuters the best place to work." One of the employees, a journalist, wrote on her own personal Twitter feed – which did not reference her affiliation with the employer – that "one way to make this the best place to work is to deal honestly with Guild members." The next day, the journalist's bureau chief called to "remind" her that the company's Twitter policy prohibited tweeting about anything that would damage the employer's reputation. Although no formal disciplinary action appears to have been taken against her, the journalist noted that from that point forward she refrained from tweeting about the employer's Twitter feed. Nevertheless, the Board concluded that the employer's policy and its application to this journalist violated Section 8(a)(1) of the NLRA because it would reasonably tend to chill the employees in the exercise of their Section 7 right to engage in concerted activity. The General Counsel concluded – consistent with the Board's approach to date – that broad prohibitions against damaging the employer's reputation, embarrassing the employer, and the like, without providing "limitations or examples" renders the policy overbroad and unlawful. In addition, the application of the policy to this particular tweet demonstrated to the General Counsel's Office the overbroad nature of the policy. Finally, the Advice Memorandum goes on to conclude that the specific application of the policy to this particular tweet also violated Section 8(a)(1), noting that the tweet about "dealing honestly" with the union was not so disloyal as to lose protection.

Perhaps I am starting to become numb to the NLRB's treatment of these issues, but there is nothing monumental about any of the General Counsel's treatment of the social media issues arising out of any of these cases. Though all of us on the employer side of the equation certainly wish that Board would be more sensitive to their concerns about employee social media use, we at least may be starting to see the next best alternative, consistency in approach.
 

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A manager's involvement in the disciplinary process isn't necessarily enough to make them a "supervisor" under the National Labor Relations Act, according to a recent NLRB decision.

In DirecTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011)  the Board, in a 2-1 decision, held that DirecTV's "field supervisors" weren't actually supervisors as defined in the National Labor Relations Act. Section 2(11) of the NLRA defines supervisors as individuals who have certain authority with respect to other employees, including the ability to discipline or "effectively recommend" discipline for other employees. The issue arose following a representation election won by the union. DirecTV argued that the field supervisors were "supervisors" under the NLRA and that the field supervisors' pro-union activities during the pre-election period interfered with the employees' free choice in the election. DirecTV asked the NLRB to invalidate the election.

In addition to leading team meetings, answering their team members' technical questions, and examining their work, field supervisors had authority to issue verbal warnings to their team members and, using a separate process, to initiate other levels of discipline, including termination. This process involved a form that field supervisors completed with the relevant facts and, in the form, the field supervisor identified the discipline that he thought appropriate. Then the field supervisor's manager, the site manager, and human resources would review the form, and in some cases review the performance and disciplinary history of the employee to be disciplined and consult with the field supervisor before making a final decision. In the majority of cases, the field supervisor's recommended action would be taken.

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Back in May, we hailed the Supreme Court's decision in AT&T Mobility v. Concepcion as a potentially huge step forward for employers that seek to require individual arbitration of employment claims. Last week, however, the NLRB again proved to be the wet blanket at the party. In D.R. Horton, the Board addressed an employer agreement that required all employees to waive their right to a judicial forum and to agree to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees. The Board held that such an agreement violated the National Labor Relations Act because it unlawfully barred employees from engaging in “concerted activity” which includes the right to file a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator because such an action seeks to initiate or induce group action protected by [the NLRA]." The Board emphasized that requiring employees to individually arbitrate their grievances is lawful so long as the requirement does not foreclose collective action judicially. 

Everyone expects that this decision will be appealed. Not only is the decision in apparent conflict with the AT&T Mobility decision, but the decision was also rendered by only two Board members potentially in violation of the Supreme Court's decision in New Process Steel v. NLRB. Also, it is interesting to note that the EEOC submitted an amicus brief urging the NLRB to decide in the manner that it did. As a result, we can expect continued hostility from that agency as well in response to collective arbitration requirements. 

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When the National Labor Relations Board (NLRB) lost its statutory authority to issue rulings because its normally five-person membership fell to two last week, President Obama made three recess appointments sparking a new controversy between Democrats and Republicans.

One reason the appointments have generated so much attention stems from New Process Steel, L.P. v. NLRB , 130 S. Ct. 2635 (2010), where the United States Supreme Court held that the five-member NLRB cannot delegate its authority to fewer than three members. Thus, a two-person board is not a quorum and is powerless to render decisions. Since Wilma Leibman's term expired in August 2011, the NLRB had been functioning as a three-member unit. The NLRB lost that three-person quorum when Craig Becker's term expired at the end of 2011.

Just days before Becker's term expired and as lawmakers were scheduled to leave on holiday break, President Obama nominated Democrats Sharon Block, a Labor Department Official, and Richard Griffin, General Counsel for the International Union of Operating Engineers who also serves on the board of directors for the AFL-CIO Lawyers, to the NLRB. Griffin is only the second nominee ever to come directly from a labor union. Becker, another controversial Obama recess appointee, was the first. Earlier in 2011, President Obama nominated Republican Terrance Flynn, an NLRB attorney, for appointment to the NLRB, but the Senate while in session did not act on the nomination.

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The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s says it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012. A copy of the NLRB's very brief Press Release can be accessed here.

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As we reported last week, on November 18th, the NLRB announced that it would vote on "whether to adopt a small number of the amendments to its election procedures that it had proposed earlier this year." Yesterday, the Board moved forward with that vote. Predictably, the two Democratic Board members voted in favor of the amendments while Republican appointee, Brian Hayes dissented. Member Hayes had threatened to resign from the Board in order to block the vote from going through, but ultimately decided not to do that.

The controversial NLRB proposed rule includes various measures that would significantly shorten the time between when a petition for a representation election is filed and when the election occurs, making it difficult for employers to adequately respond to union organizer claims and promises. In response to the anticipated vote, the Republican majority in the House of Representatives was able to pass a bill intended to override the NLRB vote, but that measure almost certainly has no chance of passing in the Senate, where the Democrats have the majority.

It is expected that the Board will attempt to issue and vote on a final rule before the end of the year. We will keep you up to date on any developments on this critical story.
 

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With apologies to Jeff Foxworthy and his "you might be a Redneck" routine: "If you arrive at work in the morning and find a 25-foot high inflatable rat balloon on the sidewalk – you might have a union issue." That was the situation in which Miami University officials and one of their construction contractors found themselves recently. Laborers Union Local 534 has a dispute with a contractor doing renovation in a building on the Miami University campus in Oxford, Ohio. A common method used by unions to show displeasure with non-union contractors is public display of the 25-foot rat balloon with appropriate signage and handbills to equate the contractor with the "rat." When Laborers Local 534 attempted to inflate the balloon on the sidewalk outside the campus building, they were stopped by Miami University police.

Local 534 filed a lawsuit in the United States District Court for the Southern District of Ohio, asking for a temporary restraining order ("TRO") against the University allowing the Union to inflate their balloon. The Union argued that the University and its police were violating their First Amendment right of free speech. This was not the first Constitutional law rodeo for this particular rat. In an earlier case, the United States Circuit Court of Appeals for the Sixth Circuit, which covers courts in Ohio, ruled that display of the inflatable rat is constitutionally-protected expression. But, in this case, Judge Barrett refused to grant the TRO for the Union. To get a TRO, the Union had to show a substantial likelihood that they would succeed with their First Amendment argument when the case goes to a full trial. The Judge said the Union did not show a substantial likelihood of success because the specific sidewalk on which they were attempting to inflate the balloon is only a "limited public forum" and therefore the Union's right to speech is more limited.

Determining whether to limit speech in a public area requires a court to consider whether the location is a "traditional public forum" or a "limited public forum." In this case, even though the Union demonstrated that the sidewalk in question is designated a "public right of way" on county maps, the Judge was more persuaded by the fact that the sidewalk is entirely on the University campus, is maintained by the University, and is patrolled by University police, rather than City police. The Union had no evidence that the sidewalk has been used historically for public speech or that Union support was being singled out for restriction. Also, the University presented evidence that the balloon might present safety hazards. The Union can continue to pursue the case to a full trial where both sides will have a more expanded opportunity to present evidence and arguments, but in the meantime, the rat has been deflated.
 

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The NLRB announced on Friday that the three-member Board will vote on November 30 on "whether to adopt a small number of the amendments to its election procedures that the Board proposed earlier this year." The controversial NLRB proposed rule included various measures that would significantly shorten the time between when a petition for a representation election is filed and when the election occurs.

Republican NLRB appointee Hayes, who has expressed strong opposition to the proposed rules, estimates that, under the new timeframes, elections might occur in 10-21 days after a petition is filed, as opposed to the average current time of 38 days. Because the proposed "quickie elections" could significantly hamper an employer's opportunity to communicate to workers before the election, the business community has also expressed significant concern about the proposed rules.

The November 30 vote is timed to occur before the expiration in January of the appointment of Democratic-appointee Becker. When Member Becker's term expires, Democrats will lose their majority on the current three member Board. Member Hayes has contacted Congress, arguing that the two Democratic members are trying to push the rule-making through without giving him adequate opportunity for dissent. Even if the vote goes forward as scheduled, we expect further legal challenges to the propriety of the action.
 

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Just when I started to think that I might have the answers regarding the NLRB's obsession with social media, the NLRB starts changing the questions. Not that that is always a bad thing. Just ask Schulte, Roth & Zabel.

In Schulte, the charging party alleged that he was terminated for his role in employee discussions about the employer's allegedly unlawful overtime policy. Schulte, however, contended that it had terminated the charging party for referring to his job title as "fucktard" in response to a LinkedIn invitation from a supervisor in the firm's IT department in violation of the firm's electronic communications policy, which prohibited using the firm's electronic communication systems to communicate "obscene, defamatory, harassing or abusive" material to any person or entity associated with the company. (Sorry for the profanity, but I assume you already have clicked on our link to the General Counsel's Advice Memorandum, where the word is used twice.)

In his Advice Memorandum to the Regional Director, the Board's Associate General Counsel recommended dismissal of the charge since there was no way to argue that the charging party's use of that word was concerted protected activity and there apparently was no evidence that the employer had any knowledge of the employee unrest regarding the overtime policy. Consistent with Knauz BMW, the Advice Memorandum concluded that because the employer's policy was not enforced in a manner that restricted the charging party's Section 7 rights, the discharge was valid. Certainly, this portion of the Advice Memorandum is not surprising.

What was a little more unexpected (to me at least), however, was the General Counsel's Office's failure to go ahead and also consider whether the policy itself was overbroad. I mean, this decision comes directly on the heels of the ALJ's decision in Knauz BMW to find a similar policy -- requiring employees to be courteous and polite -- unlawful despite upholding a discharge for Facebook posts based in part on that policy. In Schulte, however, the Advice Memorandum simply states, "In any event, there is no allegation that the rule here is unlawful."

Huh? Don't get me wrong. I'm not looking this gift horse in the mouth, but for those of us looking for some semblance of consistency from the Board on these issues, the General Counsel's position in Schulte is a bit of a head scratcher. Granted, all of these cases are very factually dependent, but this Advice Memorandum not only seems inconsistent with Knauz BMW, it also seems contrary to the position the General Counsel's office took in the initial Facebook firing case, American Medical Response of Connecticut, Inc., where it alleged that policies prohibiting "disparaging remarks" about the employer violated Section 7 of the NLRA. Again, I welcome this favorable outcome for employers, but going forward, prudent employers should strongly consider including a disclaimer in their social media and electronic communications policies stating that those policies will not be enforced in a manner that would interfere with employees' rights to communicate regarding working conditions. Not a cure-all, for sure, but hopefully it will help the policies withstand NLRB scrutiny until the Board and its counsel's office find some consistency on these issues.

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We reported recently that motions for summary judgment had been filed in the United States District Court for the District of Columbia in the case challenging the NLRB's rule requiring that all employers post a notice about union organizing rights.  Now summary judgment motions have also been filed by both sides in the other case in which the NLRB rule is being challenged. In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al. (U.S.D.C., South Carolina, Case No. 2:11-cv-02516), the Chamber of Commerce and the NLRB have filed motions with the Court making arguments essentially the same as those made in the D.C. district court case.

The U.S. Chamber did raise one interesting argument not made in the D.C. district court case. The Chamber argued that the NLRB rule requiring employers to post notices about union organizing rights is "forced speech" violating the First Amendment of the United States Constitution. The Chamber argues that requiring employers to post the notice effectively forces employers to communicate to their employees about labor relations in a manner dictated by the NLRB. In response, the NLRB argues that the notice is not forced speech by the employer, but, rather, is the government communicating to the workforce.

With the current effective date of the posting requirement looming at January 31, 2012, we will keep close watch on further developments in both of these cases.
 

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In the Ohio General Election on Tuesday, Ohioans voted by a margin of 61% to 39% to repeal Senate Bill 5. The highly-contentious legislation passed in Ohio last summer would have made sweeping changes to Ohio collective bargaining law applicable to workers in the public sector. (See our previous blog posts on Senate Bill 5 here and here.) Among the most significant provisions in S.B. 5 were a ban on strikes by all public sector workers, elimination of binding arbitration as the way to resolve bargaining disputes, mandated minimum employee contributions for medical insurance and pension benefits, and a prohibition of "fair share fee" union dues provisions in collective bargaining agreements.

S.B. 5 was seen by supporters as a necessary control on the public sector collective bargaining system in Ohio, which some claim has resulted in runaway wages and fringe benefits for public workers and has created an unsustainable financial burden on state and local governments. Supporters of S.B. 5 argued it was a necessary measure to avoid tax increases.

Opponents of S.B. 5 argued that it was an attack on unions and an effort to eliminate any true collective bargaining in the public sector. Relying heavily on public support for police officers, fire fighters, and teachers, opponents of S.B. 5 marshaled substantial financial and other resources to achieve a sweeping victory in the election.

So, what is next? Supporters of S.B. 5 may return to the Legislature with a revised, scaled-back version of the Bill. Alternatively, some of the provisions of S.B. 5 might find their way into future budget bills which are not susceptible to referendum and repeal. There are also reports that efforts will be made to pass "right to work" legislation in Ohio applicable to public and private sector workplaces. Right to work laws make it illegal for a contract between a union and employer to require any employee to pay union dues or to be a member of or affiliated in any way with a union.

What will be the effect of the S.B. 5 referendum on organized labor and on public employers? Unions can draw from the election results a certain feeling of vindication. Unions may try to ride the wave of public support with more aggressive union organizing in both the public and private sectors. At a minimum, unions representing employees in the public sector are safe at least for now from those provisions of S.B. 5 which would have substantially reduced their influence and effectiveness at the bargaining table.

The initial reaction from public employers may be disappointment that much needed improvements to the public sector bargaining process did not take effect. But at the same time, the political melee that surrounded S.B. 5 brought substantial attention to the financial crisis that many public employers are facing. The election results do not change the fact that many public employers simply cannot continue to fund wage and benefits increases as they have done in the past. So expect public employers to take a strong stance at the bargaining table to control costs despite the fact that S.B. 5 was repealed.
 

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As we reported previously, the National Labor Relations Board ("NLRB") issued a rule in August requiring all employers to post workplace notices about employee rights to join a union. This effort by the NLRB to require posting about union organizing rights in all workplaces has caught the attention of the employer community more than any NLRB action in recent memory. The rule reaches into the workplace of all employers except for those few which are outside of the NLRB's jurisdiction. [See our earlier post that outlines NLRB jurisdiction]. Briefly, if you are wondering if you are covered, you probably are covered. The original effective date for the rule was to have been November 14, 2011, but that effective date was delayed when lawsuits were filed in two federal district courts challenging the NLRB's authority to issue such a rule. The new effective date is January 31, 2012 and the arguments in the lawsuits challenging the posting rule are beginning to take shape.

In a case before the federal District Court for the District of Columbia, all of the parties filed motions for summary judgment on October 26, 2011. (National Ass'n. of Mfrs. v. NLRB, D.D.C., No. 11-CV-1629). In addition to the National Association of Manufacturers, others challenging the NLRB rule in this case include the National Right to Work Legal Defense and Education Fund, Inc., the Coalition for a Democratic Workplace, the National Federation of Independent Businesses, and several specific employers. The primary arguments being made by those challenging the posting rule include:

• The NLRB's jurisdiction is limited to specific cases where unions are trying to organize employees (representation cases) and cases where an employer has been charged with committing an unfair labor practice ("ULP"). The law does not allow the NLRB to impose obligations on employers which are not the subject of a representation case or being charged with a ULP. Therefore, the NLRB cannot require all employers to post the notice.
• The NLRB has exceeded its authority by stating in its rule that the failure to post will be considered a ULP. The NLRB cannot create new ULP's which are not found in the National Labor Relations Act and that law does not include a posting requirement.

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We reported earlier about the NLRB notice-posting rule, which was to take effect on November 14, 2011. The rule applies to all companies subject to NLRB jurisdiction. (See discussion below of NLRB jurisdiction.) The rule requires companies to post in the workplace notices to employees about their rights to join a union. Not surprisingly, the proposed rule has generated a great deal of attention and some controversy. Recently, we reported on the first lawsuit, filed by the National Association of Manufacturers, to challenge the NLRB's right to impose this rule. Since then, a number of other lawsuits have been filed, including lawsuits filed by the U.S. Chamber of Commerce, the National Right to Work Foundation and the National Federation of Independent Business.

Possibly in response to those lawsuits, the NLRB earlier today issued a notice on its web site saying that the posting requirement is now postponed to January 31, 2012. The Board's stated reason is to allow time for "enhanced education and outreach to employers, particularly those who operate small and medium-sized businesses." Indeed, we have received a number of questions regarding the scope of the posting requirement. For instance, many are asking whether the Board's posting requirement will apply to a particular company or industry. To put it briefly, just about every company in the private sector outside of a few very specific industries is covered by NLRB jurisdiction. For example, certain employers in the railroad, airline, and agricultural industries and federal, state, and local municipal government entities are not covered by the NLRA. Some religious institutions are not covered. But most employers in all other industries are covered.

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Last week, another ALJ for the National Labor Relations Board issued a decision on a case involving an employee claim that he was unlawfully fired for comments made on a personal Facebook page. Though the ALJ upheld the employee's termination, he also concluded that multiple employer policies were impermissibly over broad.

In Knauz BMW,  the charging party, a salesman at a BMW dealership, posted two comments regarding his employer on the same day. The first post expressed concerns he had expressed at work regarding the inadequacy of food being served to customers at a sales event and included photos of the event. The second related to an incident that occurred at a sister dealership in which he posted a photo of an accident that occurred when a salesperson apparently left a 13 year old behind the wheel of a vehicle. Both posts were delivered in a sarcastic mocking tone. After a meeting between management and the charging party at which both posts were discussed, the charging party was terminated.

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We have reported in recent months about steps that the National Labor Relations Board ("NLRB") has been taking that will make it far more easy for a Union to win and keep the right to represent a group of workers. The most recent NLRB decision to support union organizing rights opens the door for unions to target a smaller group of employees at a workplace, rather than having to organize a larger group of workers. This will make it much easier for a union to "cherry-pick" a group of workers, gain a foothold, and then try to expand from there to other groups in the same company.

To appreciate how important this can be, consider this example. Presume a union is interested in organizing the workers at a manufacturing plant where there are 300 hourly-paid production and maintenance workers. To get representation rights, the union has to target and gain support among a proper group of workers and then win a secret ballot election. But what group of workers? Is it all 300 production and maintenance workers? Until the NLRB's most recent decision on the topic, that would have been the group that the union would typically have had to try to organize. Now, presume that in this hypothetical manufacturing plant, there is substantial dissatisfaction for one reason or another among the 40 employees in the maintenance department, but not so among the rest of the workers. The union would have a much better chance at gaining enough support to win an election among just that group of 40. Now they can target that group, hope to win the right to represent them, and then begin a plan to expand later to organize other groups in the same workplace.

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As we noted last month, most private sector employers -- regardless of whether they are unionized -- will be required, beginning November 14, 2011, to post a notice advising employees of their rights under the National Labor Relations Act. Copies of the poster are now available for downloading and printing on the NLRB website here.

But, don't put that poster up a second before you have to. A lawsuit filed by the National Association of Manufacturers against the Board seeks to enjoin enforcement of the rule on the ground that it exceeds the Board's statutory authority. We will keep you posted on any new developments relating to this new rule.

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Earlier this year, speculation and educated guesses gave way to NLRB General Counsel Advice Memoranda on how the NLRB will address unfair labor practice charges challenging so-called Facebook firing cases. Now we have our first charge that actually has gone to hearing and resulted in an Administrative Law Judge decision.

In Hispanics United of Buffalo, Inc., the employer, a not-for-profit corporation that renders social services to economically deprived residents of Buffalo, New York, terminated five employees for their comments on Facebook after a co-worker had raised concerns about the job performance of other HUB employees. Apparently concerned that the co-worker would bring her concerns to management, one of the five employees posted the following on her Facebook page:

[Co-worker] feels that we don't help our clients enough at HUB I about had it!
My fellow coworkers how do u feel?

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Once a union has established majority support among a group of employees, the union's right to represent those employees continues as long as the majority support continues. Employees can demonstrate they no longer want a union to represent them in a variety of ways. They can file a decertification petition with the NLRB to have an election conducted to see if the union still has majority support. Also, if a majority of the represented employees demonstrate clearly that they no longer want the union to represent them, such as by signing an uncoerced petition that was not initiated or supported by the employer, then the employer might be justified in no longer recognizing the union.

However, certain presumptions exist that protect a union for specified periods of time from any attack on their majority status. For example, the typical method by which unions establish majority support is in an NLRB-conducted certification election. If the union wins the election, the union enjoys an irrebuttable presumption of majority support for one year from the date the election results are certified. Also, if a collective bargaining agreement ("CBA") is signed between the employer and the union, the union enjoys a presumption of continued majority support for the length of the collective bargaining agreement, up to a maximum of three years. In two recent decisions, the NLRB reversed existing law in a way to give unions even greater protections from challenges to their majority support.

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On December 27, we wrote a blog post regarding the NLRB proposed rule-making to require all employers to post notices advising employees of their rights to engage in union organizing. After a period of public comment, during which about 7,000 responses were submitted to the NLRB, the NLRB has now issued its final rule requiring the posting.

Effective November 14, 2011, all private sector companies covered by the National Labor Relations Act are required to post in the workplace a specific notice advising employees of their rights under the National Labor Relations Act to engage in union organizing, to bargain through a union with their employers, and to refrain from those activities. The notice also gives examples of employer and union conduct which is considered illegal and tells employees of actions they can file with the NLRB to enforce their rights. Here is a link to the NLRB announcement, which includes a copy of the required posting (as an Appendix.)  The NLRB promises that by November 1st, the posting will be available for downloading from the NLRB web site and that hard copies will be available from NLRB Regional Offices. All employers will be required to post the notices in conspicuous areas of the workplace where other employment notices are posted. Also, employers that routinely post notices regarding personnel rules or policies on an Internet or intra-net site will be required to post the new NLRB notice on those sites. However, employers are not required to distribute the notice to employees by email or other technological means. In workplaces where at least 20% of the workforce are not proficient in the English language, translated copies must be posted. The NLRB has indicated they will make copies available in various languages.

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As you have probably noticed, the interaction between social media and federal labor law has been one of this blog's favorite topics, which we have addressed on multiple occasions. On August 18, 2011, the National Labor Relations Board's Acting General Counsel ("AGC") issued a report that summarizes the General Counsel's Office's view on a variety of cases in which Regional Directors sought advice on social media issues and therefore provides excellent guidance to employers. With one exception, the topics addressed in the Report fall into two broad categories:

1. First, the Report addresses when an employee's social media activity is protected concerted activity under the National Labor Relations Act ("NLRA"), which may not be restricted by the employer.
    
2. Second, the Report addresses the extent to which employers' social media policies in general are so overly broad that they could be reasonably construed to prohibit employee rights to engage in concerted activity. The one exception addressed the question of union coercion of employees of a non-union employer. In that case, the union attempted to coerce the employees by making them believe that they were in danger of being deported for immigration violations. The union videotaped these interrogations and then posted edited versions on Youtube and Facebook. The AGC concluded that the threats and videotaping themselves violated the employees rights to refrain from union activity and that the postings on Youtube and Facebook unlawfully conveyed the same coercive message to any employees who may have viewed them.

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Beginning in late 2008, Verizon New England, Inc. (VNE) began requiring its field technicians to carry company-issued cell phones, containing a global positioning system (GPS) during work. Prior to adopting this policy, VNE issued its technicians pagers so that their supervisors could communicate with them. The technician would then have to locate a phone to return the call. Obviously, in emergency situations, this was a less than optimum arrangement. As a result, VNE, relying on the management rights provision in the collective bargaining agreement between it and the technicians unit, adopted the disputed policy.

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A Sixth Circuit decision issued on August 2, 2011, puts the spotlight on union high tech tactics in the midst of an organizing campaign and potentially puts employers in precarious positions in attempting to respond.  

In September 2009, Pulte Homes, Inc. fired a construction crew member for misconduct and poor performance. Claiming that the crew member really was terminated for wearing a pro-union t-shirt, the Laborers' International Union of North America (LIUNA) filed an unfair labor charge with the NLRB and unleashed a denial of service campaign that paralyzed Pulte's phone and email systems. 

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On July 7 and 19, 2011, the NLRB's Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB's General Counsel's Office concluded that there was insufficient evidence that the employee engaged in concerted activity.

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It's only Wednesday and already this is proving to be a potentially huge week for organized labor. In moves long sought by organized labor and opposed by business groups, the Obama Administration issued two proposed federal regulations this week that could significantly impact union elections.

First, on Monday, The Department of Labor ("DOL") issued a proposed regulation that would require employers to disclose more information about consultants they hire in response to union organizing campaigns. According to the DOL, the Labor-Management Reporting Disclosure Act which was enacted in 1959 currently is being applied too narrowly, because it only requires reporting of consultants who communicate directly with employees. Under the DOL's proposed new expanded definition of "advice," an employer would be required to report any arrangements with consultants who issue communications on behalf of the employer designed to "directly or indirectly" persuade workers concerning their rights to organize or bargain collectively. Under the proposed new rule, indirect persuasion could be construed so broadly as to require disclosures of attendance at "union avoidance" seminars and conferences offered to employers by lawyers or labor consultants. The proposed regulation is open for public comment until August 22, and the DOL will then decide whether to make the new rule official.

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No, this is not another comment on the much-publicized and highly politicized complaint filed by the National Labor Relations Board ("Board" or "NLRB") against Boeing for allegedly moving work from Washington to South Carolina in retaliation for protected union activity. Rather, it pertains to Sheet Metal Workers Local 15 (Brandon Medical Center) and Auto Workers Local 376 (Colt's Mfg. Co.), decisions issued by the Board on May 26 and May 27, 2011, respectively.

Although these cases involved entirely different fact situations, in each instance a panel of the NLRB rejected findings of an administrative law judge who, after hearing the evidence, concluded that a union had violated the National Labor Relations Act("NLRA" or "Act"). Both panels included Members Liebman and Pearce, while Member Hayes dissented in both cases.

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The NLRB’s General Counsel’s Office’s approach to employer social media policies and the discipline of employees pursuant to such policies has been a frequent topic of this blog. In fact, just last month, I called on both the NLRB and employers to take a step back from the rhetoric on this controversial topic. Yesterday, the NLRB’s General Counsel’s Office issued another Advice Memorandum (dated April 21, 2011), which again addresses the social media topic but this time upholds the employer’s discipline of an employee for posting offensive tweets on Twitter. In Lee Enterprises, Inc., d/b/a Arizona Daily Star the charging party was the public safety reporter for the Arizona Daily Star newspaper in Tucson. The newspaper had no social media policy, but began urging its reporters to begin using social media, including twitter. In early 2010, the charging party posted a tweet that ridiculed a headline in the newspaper’s sports section. He was called into a meeting with the human resources director, who encouraged him to discuss any concerns he had rather than tweeting about them. About a week later, he met with the managing editor, who “prohibited [him] from airing his grievances or commenting about the Daily Star in any public forum. The charging party then refrained from tweeting about the newspaper itself, but in August and September 2010, he tweeted the following:

• August 27 - “You stay homicidal, Tucson. See Star Net for the bloody deets."
• August 30 - “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
• September 10 - “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor’.”
• September 10 - “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”
• September 10 - “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”
• September 14 - “[FOIA Exemptions 6, 7(C)].”
• September 15 - “[FOIA Exemptions 6, 7(C)].”
• September 19 - “My discovery of the Red Zone channel is like an adolescent boy’s discovery of h...let’s just hope I don’t end up going blind.”

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Several days ago, I read the New York Times article reporting that the NLRB's Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter. At the time, I flagged the article because I wanted to use it to highlight my -- emphasis on the word, MY -- views on the NLRB's recent assault on social media policies: When it comes to social media, it is time for cooler heads to prevail, both at the NLRB and within the employer community.

So, what happened at Thomson-Reuters? According to the article in the Times, the company on one of its Twitter outlets had invited employees to post suggestions on Twitter about how to make Reuters the best place to work. In response, an employee, who was also the head of the Newspaper Guild at Reuters, tweeted: "One way to make this the best place to work is to deal honestly with Guild members." The next day, her supervisor contacted her at home to advise her about Reuters policy of not saying things that would damage the company's reputation. Though Reuters denies that it disciplined the employee, she complained that she felt threatened and intimidated. A source at the NLRB apparently confirmed to the Times that it would be filing a complaint against Thomson-Reuters accusing the company of violating the employee's right to engage in concerted, protected activity with co-workers to improve working conditions.

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On March 3, 2011, I wrote a blog post about Senate Bill 5 which had just been passed by the Ohio Senate.  S.B. 5 makes sweeping changes to the law of collective bargaining as it applies to public sector employees in Ohio. S.B. 5 has since been amended, was recently passed by the Ohio House and the Senate and, last night, was signed by Governor Kasich. But, whether S.B. 5 will ever become law remains to be seen. Organized labor and other opponents are determined to obtain the necessary 230,000 signatures from registered voters to stall the Bill and have it placed on the ballot in November for a public vote. The time limit for obtaining the necessary signatures is 90 days from the Governor's signature. If enough signatures are obtained, the law will not take effect unless it is supported by the voters in November.

The major provisions of S.B. 5 as outlined in my earlier article are unchanged by the amendments. The law still imposes significant restrictions on things that can be brought to the bargaining table by unions representing public sector employees. It still eliminates binding arbitration as the means to resolve negotiations disputes with police, firefighters, and other safety forces. Binding arbitration is replaced by a procedure whereby the Legislative body for the employer will select between the last best offer of the employer and the last best offer of the union. The right to strike has been eliminated for all public employees and the law imposes very significant potential penalties for any public employee who does strike.

The final version of S.B. 5 does include some significant changes which were made in the House of Representatives.

• The Bill now prohibits "fair share fees." Under current law, employees in a unit represented by a union cannot be required to actually join the union, but can be required in a labor contract to pay a fair share fee, which usually is approximately the same as union dues charged to union members. Unions argue that the fair share fee assures that all employees who derive the benefits from the union representation and the labor contract help to pay the cost to negotiate and administer the contract. Under S.B. 5, no employee can be required to join a union and no employee can be required to pay a fair share fee.
• S.B. 5 prohibits payroll deductions for contributions to union political action committees (although labor contracts can still require payroll deductions to pay actual union dues for union members who authorize the deduction).
• Under current law, a group of employees represented by a union can petition for an election to de-certify the union only if at least 50% of the employees support the petition. Under Senate Bill 5, a petition for a decertification election can be filed with just a 30% showing of interest, bringing that in line with the decertification rules in the private sector. Once a decertification petition is filed, a decertification election is held and, just as under current law, decertification will occur only if a majority of those who vote in the election support the decertification.

S.B. 5 will continue to be a hotbed of contention and the debate will really heat up this Fall if opponents are successful in having the issue placed on the ballot. Expect a barrage of TV commercial time as both sides will pull out all the stops on this one.

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After a week of significant media attention and almost unprecedented levels of protest at the Ohio Statehouse, the Ohio Senate passed Senate Bill 5 by a one-vote margin – 17 to 16. The Bill will now go to the House of Representatives where it is expected to pass quickly, paving the way for the Governor to sign it into law. A number of significant amendments were made from the Bill as originally proposed, but in its final form, the Bill still makes major changes to the law of collective bargaining in the public sector.

The Major Changes

• S.B. 5 places significant restrictions on the subjects that can be brought to the bargaining table for public employees. Specifically, bargaining will not be permitted about health insurance benefits, employer assistance towards the employee share of pension contributions, privatization of public services, staffing levels, and certain other management rights.
• S.B. 5 prohibits strikes by all public employees. Previously, Ohio collective bargaining law prohibited strikes only by police officers, firefighters, and other specified employees whose jobs have a direct impact on public safety. S.B. 5 makes it illegal for all public employees to strike and imposes extraordinary penalties if public employees do strike. Striking employees can be terminated, and can be subjected to substantial financial penalties.
• S.B. 5 establishes a new procedure for dispute resolution in bargaining. Under existing law, if contract negotiations reach a stalemate, the parties typically first have a hearing before a neutral "fact-finder." The fact-finder issues recommendations for resolving the dispute, but either the union or the employer can reject those recommendations. In the case of police, firefighters, and other specified safety employees who are prohibited from striking, the dispute then goes to a hearing before another neutral person whose decision is binding. The theory is that since those employees do not have the leverage of the threat of a strike, there has to be a neutral person to break the deadlock in the bargaining. S.B. 5 eliminates the binding arbitration step and prohibits all employees from striking. In cases where bargaining reaches a stalemate, the fact-finding proceeding will be followed first. If either party rejects the fact-finder's report, the employer's last best offer and the union's last best offer will be presented to the legislative body (i.e., City Council in the case of a municipality) which will conduct a public hearing and then vote to accept either the last best offer of the union or the last best offer of the employer.

S.B. 5 places in the hands of public employers substantial leverage and control in collective bargaining. Supporters of the Bill say this is necessary to address what they consider to have been a system slanted in favor of unions, which has resulted in over-generous pay and benefits and unreasonable restrictions on employer rights. Opponents of the Bill claim that it places all leverage and control in the hands of the employer and thereby eliminates true collective bargaining. Opponents also claim that the true underlying agenda for supporters of the Bill is to weaken union influence and political power.

Our firm has represented municipal and other government employers in the collective bargaining process under existing law, and we certainly understand the argument that the current system is broken. Whether the dramatic changes in Senate Bill 5 will prove to be a fair and reasonable fix remains to be seen. It will be interesting to observe the ongoing expected opposition and any possible legal challenges to the law on constitutional grounds.
 

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A recent advice memo from the Acting General Counsel for the National Labor Relations Board (NLRB) shows once again that the agency is stepping up the nature of the remedies it will go after when employers are accused of unfair labor practices.

In GC Memo 11-06 the General Counsel authorizes NLRB Regional Offices to seek certain extraordinary remedies where the employer is accused of bad faith bargaining with a union over initial collective bargaining agreement terms. The Regions are now authorized to pursue directly:

• notice reading (requiring a management representative to read a statement in front of employees saying the company will not violate the National Labor Relations Act);
• a minimum six-month extension of the certification year (unions enjoy a one-year period of time after they become certified to represent a group of employees during which they cannot lose their representation rights, even if a majority of the employees no longer want them. This remedy allows the NLRB to extend that protection for the union for a minimum of an additional six months. Although the GC Memo states that an extension of 12 months is "normally" best, it allows the Region to seek less time, but no less than six months. Interestingly, no maximum time is set for the extension); and
• a mandatory schedule for bargaining meetings of no less than 24 hours total per month and no less than six hours per session (the theory for this remedy is that employer's sometimes refuse to meet on a sufficiently frequent basis and/or refuse to provide information needed by the union).

In the past, Regional Offices could pursue these remedies only after asking for approval from the NLRB Division of Advice in Washington. The GC memo also mentions, as additional appropriate remedies, requiring the employer to reimburse the expenses the union incurs in the bargaining process allegedly caused by the employer's misconduct and to reimburse the union for its related litigation expenses. However for those remedies, the Regions must still seek approval from the Division of Advice.

This GC memo is just the most recent in a very clear pattern of actions by the NLRB to strengthen its tools of enforcement in ways that make it easier for unions to organize workers and to obtain first contract terms. These were among the main objectives in the ill-fated Employee Free Choice Act proposed in the early days of the current administration and supported fervently by organized labor. When it became clear there was not sufficient support in Congress for that law to pass, the NLRB began its efforts to support the same objectives through administrative measures like this most recent GC memo.
 

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Ohio Employment Practices Law:
Highlights from latest edition of "The" Book on Employment Law in Ohio
Wednesday, March 16, 2011
2:00 - 3:00 p.m. EST

Ohio Employment Practices Law - published by West - has become "the" important reference for Ohio employers. On Wednesday, March 16, 2011, editors Bradd Siegel and John Stephen will review highlights from the recently released 2010-2011 edition of this treatise that are most relevant for human resource professionals and in-house counsel, including the continued evolution of public policy claims; the clarification of pregnancy related obligations; and the practical impact of the ADAA upon employers.

Register Now!

Wednesday, March 16, 2011 from 2:00 p.m. - 3:00 p.m. EST

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As we have been noting recently, the NLRB and its Acting General Counsel (AGC) have embarked on an aggressive campaign to increase NLRB influence and control over labor-management relations. At hearings on Friday, February 11, 2011 before the House Committee on Education and the Workforce, the employer community raised concerns about a number of those initiatives, including two recent AGC Memoranda, which are enforcement directives from the NLRB General Counsel to NLRB Regional Offices around the country. In GC 11-04, the AGC issued a controversial direction to the Regional Offices to include mandatory default language in settlement agreements. In GC 11-05, the AGC announced a significant change in the way the NLRB will proceed when issues brought before the NLRB could also be brought in front of an arbitrator under a labor contract grievance procedure.

Memorandum GC 11-04 instructs the NLRB's Regional Offices to include certain language in all settlement agreements over unfair labor practice charges. The new language says that if an employer fails to comply with any aspect of the settlement, the employer will automatically be deemed to have admitted all of the allegations in the underlying unfair labor practice complaint. This language means that employers entering into settlement agreements with the NLRB will have to be very cautious not to do anything that might be construed a violation of its obligations under the settlement agreement because violating the settlement will make the employer automatically liable for the underlying allegations.

Memorandum GC 11-05 revises the NLRB's long-standing practice of deferring to arbitration awards and grievance settlements. Up until now, if a union that represented an employee covered by a labor contract with a grievance/arbitration procedure filed a charge with the NLRB claiming unfair treatment, the NLRB would usually defer to the grievance arbitration procedure if the conduct complained about could be pursued under those procedures. In Memorandum GC 11-05, the AGC says that the NLRB's current policy is "overly deferential" and does not adequately protect employee rights. The AGC urges Regional Directors to investigate charge allegations and make a decision whether the charge has "arguable merit" before deferring to arbitration. In cases where an arbitration decision has already been issued, the NLRB Regional Directors are told to determine whether the parties presented to the arbitrator the statutory right that the charging party sought to enforce and whether the statutory right was incorporated into the arbitrator's decision. The Regional Director is also to consider whether the arbitrator correctly recognized the statutory principles and applied them in issuing his or her decision. Only then will the Board defer to the arbitrator's award. Also, the AGC urges Regional Directors not to defer to grievance settlements unless it is clear the parties intended for the settlement to resolve the unfair labor practice issues. Regional Directors are also encouraged to consider whether the settlement is "reasonable," whether it appears any fraud, duress, or coercion occurred and whether the respondent has a history of unfair labor practices or of violating settlement agreements.

All of the hurdles set out in Memorandum GC 11-05 will make it far less likely that the NLRB will defer to grievance arbitration procedures. This means that employers with union contracts can expect much more often to be required to battle before the NLRB regarding the very same issues that are being pursued under the union contract grievance arbitration procedures.
 

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Earlier this week, the National Labor Relations Board issued a press release announcing the settlement of the NLRB’s Complaint against American Medical Response of Connecticut, Inc. (AMR) in what has become known as the Facebook Firing case.

In that complaint, the Board alleged that that AMR maintained an overly broad handbook policy regarding blogging, Internet posting and communications between employees and had unlawfully terminated an employee pursuant to that policy after she had posted critical comments about her supervisor and responded to further comments from her co-workers. The press release notes that, among other things, AMR has agreed to revise its policy to ensure that it does not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work and that it would not discipline or discharge employees for engaging in such discussions. The exact details of the required policy revisions are not clear as of this date; nor is it certain that the NLRB will be issuing any further press releases regarding this case. The text of the press release is reprinted below.

PRESS RELEASE

Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

A settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page.
The NLRB’s Hartford regional office issued a complaint against American Medical Response of Connecticut, Inc., on October 27, 2010, alleging that the discharge violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-workers. Under the National Labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers and others.

The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The National Labor Relations Board is an independent federal agency vested with the authority to safeguard employees’ rights to organize and to determine whether to have a union as their collective bargaining representative, and to prevent and remedy unfair labor practices committed by private sector employers and unions.
 

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In a decision issued this morning, the Sixth Circuit held that an Ohio complaint alleging wrongful termination for discharging employees for unionizing activities was pre-empted by the National Labor Relations Act (“NLRA”).  Specifically, the court in Lewis v. Whirlpool Corporation upheld the dismissal of the case by the district court based on a lack of subject matter jurisdiction.   

The plaintiff argued that because he had been employed as a supervisor, he was not an employee covered by the NLRA. The court noted, however, that a supervisor has a viable claim under the NLRA when he is terminated or otherwise disciplined for refusing to commit unfair labor practices. In addition, it appears that Lewis filed a charge with the NLRB, but withdrew it when it became clear that an NLRB Field Examiner had concluded that his claim had no merit. Because Lewis’s claim under Ohio law was identical to the claim he could (and, in fact, did) bring before the NLRB, the Ohio law claim was pre-empted and subject to dismissal. 

Although the court did not have to address the issue in light of its pre-emption finding, it seems that the availability of adequate remedies for Lewis under the National Labor Relations Act (had he been able to factually support his claims) would have resulted in dismissal of his Ohio wrongful termination claim in any event. Keep in mind, however, that on that front, we are still awaiting the Ohio Supreme Court’s decision in Sutton v. Tomco Machining, Inc., which we expect will again address the scope of Ohio public policy wrongful termination law in the context of a workers’ compensation retaliation claim.

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As expected, the NLRB has moved forward with initiatives that seem designed to make it easier for unions to successfully organize. The most controversial aspects of the proposed Employee Free Choice Act, including card-check recognition and mandatory arbitration in bargaining, seem to be dead in the water. But a union-friendly NLRB is pursuing initiatives administratively that will facilitate union organizing. 

Rule Making to Require Posting About Organizing Rights

The NLRB recently issued a Notice of Proposed Rule Making which would require all employers to post notices in the workplace advising employees of their rights to engage in union organizing. The notice would have to be posted prominently in the workplace and employers that communicate electronically with employees would be required to include the posting in an electronic communication The proposed mandatory organizing poster is very similar to one that is required for federal contractors and subcontractors. It gives a comprehensive explanation of employee rights to organize and restrictions on employer responses to organizing. 

A copy of the NLRB news release about the proposed rule, together with links to the Notice of Proposed Rule Making, which includes the full text of the proposed posting, and additional information, can be found here. 

The prospect of a mandatory prominent notice about union organizing in the workplace is good cause for every employer to evaluate its overall plan for response to possible union activity.

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There is a common perception that many employees in the public sector enjoy wages and benefits higher than those paid for comparable jobs in the private sector. Regardless of how accurate that perception is, there is no question that the budgets of government employers around the State and around the country are stretched now to a critical level and that often, wages and benefits are the greatest expenditures straining those budgets.

Governor-Elect Kasich has taken aim at public-sector unions and the Ohio Public Employee Collective Bargaining law, identifying them as two of the reasons that government entities are in an economic crisis. Kasich has been very vocal in his attacks on the collective bargaining law and has promised to support efforts to eliminate binding arbitration for safety forces and to prevent all public employees from striking. Under the 1983 Ohio Public Employee Collective Bargaining law, government employees have the right to collective bargaining and union representation. If negotiations for a labor contract covering safety forces, such as police and firefighters reach impasse, the dispute is sent to binding arbitration. Because they have that right to binding arbitration, police, firefighters and other safety and emergency personnel do not have the right to go on strike. If bargaining concerning non-safety or emergency personnel reaches impasse, the dispute is heard by a neutral fact-finder, but that person's decision is not binding. If the negotiations remain at a stalemate after fact-finding, those employees have the right to strike. Kasich argues that binding arbitration takes the decision regarding wages, benefits, and other working conditions away from elected officials and the citizens they represent. He argues also that no public employee should have the right to strike.

Other frustrated government officials have raised concerns about the public-sector bargaining system. For example, the Middletown City Council recently considered, but then tabled, a resolution to the Ohio General Assembly asking for review of the public sector collective bargaining law. In a novel lawsuit filed in October, the City of Akron sued the Fraternal Order of Police in an effort to undue the Akron/F.O.P. labor contract covering city police officers. The City Council argued that the City Administration and the FOP agreed to the contract without sufficient input from City Council.

Organized labor will fight vigorously to preserve collective bargaining for public-sector employees. Unions that typically represent police officers and firefighters will be especially aggressive in the political arena. Public employers should follow the debate closely because if the Governor-Elect has his way, there could be dramatic changes in the bargaining relationships with public sector employees.

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On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.

As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute a violation of 8(a)(1) of the National Labor Relations Act because they interfere with employees' right to engage in protected concerted activity under Section 7 of the NLRA. (The NLRB and courts typically interpret Section 7 as protecting employees’ right to discuss the terms and conditions of their employment with other employees or even non-employees.)  The NLRB also alleged that the employer illegally fired an employee pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.

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Wal-Mart has long been a target for union organizing.  But The Daily Show with Jon Stewart recently called into question whether the UFCW (United Food and Commercial Workers) itself adheres to the employment practices that it advocates for Wal-Mart. 

Click on the link for a good laugh and an enlightening bit of “reporting.” 

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As an update to my June 30 post regarding New Process Steel v. NLRB, the NLRB has sought to remand all 96 decisions currently pending in the federal courts of appeals and on appeal to the U.S. Supreme Court. The NLRB requested to have each of these 96 decisions reconsidered by a three-member panel, which would include Chairman Wilma Liebman and member Peter Schaumber who issued the decisions originally when the NLRB had only two members. It is undetermined what will happen to the remaining decisions that are not pending appeal in the federal courts (over 500) issued while the NLRB had only two members.

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As an update to my earlier blog postings (Supreme Court Agrees to Consider Legality of Two-Member NLRB Rulings, Second Circuit Agrees with First and Seventh Circuits that the Two-Member NLRB Had Authority to Issue Opinions, and Two Conflicting Federal Circuit Court Decisions Issued Today Call Into Question all NLRB Opinions Issued in the Past Year), last Thursday, the Supreme Court settled the issue of whether the two-member National Labor Relations Board (NLRB) that existed from January 1, 2008 to March 26, 2010 had the authority to issue binding opinions. 

In a surprise 5-4 decision, the Supreme Court held that the two member panel NLRB did not have authority to issue opinions—a decision that affects nearly 600 opinions issued during a two-year period of time. Justice Stevens, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, wrote the opinion for the Court. Justices Kennedy, Ginsburg, Breyer, and Sotomayor dissented.

Recall that, prior to this decision, there was a split between the federal courts of appeals regarding whether the two-member NLRB had authority to issue opinions. The First, Second, Fourth, Seventh, and Tenth Circuits had previously held that it had the authority, while the D.C. Circuit held that it did not.

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If your company has federal contracts or subcontracts, you should be preparing to comply with Executive Order 13496 by June 21, 2010. The Executive Order, which was signed by President Obama in January, 2009, requires that all companies with federal contracts or subcontracts post a detailed notice to employees informing them of their rights to engage in union organizing. The notice must be posted in “conspicuous places in and about the company’s plants and offices so that it is prominent and readily seen by employees.” “Conspicuous placement” includes, but is not limited to, areas in which the employer posts other notices to employees about terms and conditions of employment. If employers customarily give notices to employees electronically, this notice must be given in a similar format. Copies of the notice are available at the following link: www.dol.gove/olms/regs/compliance/EO13496.htm.

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The Ohio Supreme Court recently reversed two lower court decisions in holding that the Franklin County Board of Commissioners failed to exercise sound discretion in awarding a painting contract for Huntington Park, the home of the Columbus Clippers baseball team. In 2008, the Commissioners rejected a bid from The Painting Company (a non-union shop) in favor of the bid of a union shop, which was substantially higher.

In their bid instructions for the stadium, the Commissioners required contractors to certify that they had not violated Ohio’s prevailing wage law three or more times within a two-year period over the last ten years. The reason given by the Commissioners for accepting the higher bid was the fact that The Painting Company had previously settled a claim alleging it had paid its workers less than the required prevailing wage. In its 5-2 decision, the Supreme Court rejected The Paint Company's argument that the criteria used by the Commission to award the contracts was unlawful. However, the Court accepted the Company's argument that, because it had not been found to have committed a "violation" of the prevailing wage law, the Board of Commissioners failed to exercise sound discretion in applying its own bid evaluation criteria. Therefore, the Court remanded the case to the Franklin County Common Pleas Court for further proceedings. A copy of the Court's opinion is available at: http://supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1199.pdf.

This ruling may cause employers to properly evaluate any prevailing wage cases brought against them to make sure that they avoid any "violations" that may impact their ability to successfully bid on future projects.

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In a much anticipated and controversial move, President Obama announced on March 27, 2010 that he will appoint Democrats Craig Becker and Mark Pearce as members of the National Labor Relations Board (“NLRB”). 

Becker, Pearce, and a third candidate, Republican Brian Hayes, were first nominated by Obama to fill the three vacant positions on the five-member NLRB in July 2009. However, the nominations stalled in the Senate, primarily due to Republican concerns over the nomination of Becker. Becker has been an in-house attorney for the Service Employees International Union (SEIU) since 1990, an AFL-CIO staff counsel since 2004, and is a law professor. In a letter written last week, all 41 Republican senators urged Obama not to issue a recess appointment for Becker because his past work as legal counsel for the SEIU and AFL-CIO “indicate(s) that he could not be viewed as impartial, unbiased, or objective.” Similarly, the U.S. Chamber of Commerce issued a statement calling Becker’s appointment a “special interest payback” for unions, and warned “the business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to complete.”

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As an update to my earlier post, the U.S. Supreme Court has recently agreed to consider whether the National Labor Relations Board, which was designed to have five members but has operated with just two members for the past 22 months, has the legal authority to issue two-member rulings in unfair labor practice and representation cases (New Process Steel LP v. NLRB, U.S., No. 08-1457, cert. granted 11/2/09).

We will continue to update you on this case as it progresses.

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The Sixth Circuit has decided two new cases regarding ERISA lifetime retiree healthcare benefits under a collective bargaining agreement, continuing to put a thumb on the scale in favor of vested benefits, but recognizing that an employer may have the right to make “reasonable modifications” to those benefits. In an earlier post, we discussed the hurdles in place for employers attempting to reduce or eliminate these benefits.

In Reese v. CNH Am. LLC, No. 08-1234/1302/1912 (July 27, 2009), a group of retirees sought a declaration that they were entitled to lifetime healthcare benefits under a 1998 collective bargaining agreement (CBA), and that CNH was required to “maintain the level of retiree health care benefits currently in effect.”  The district court granted the retirees judgment, and CNH appealed. The CBA stated that CNH would provide healthcare benefits to retirees at no cost and tied eligibility for healthcare benefits to eligibility for pension benefits—“‘[e]mployees who retire [under the pension plan]. . . shall be eligible for’ health-care benefits” and “‘[n]o contributions are required for the Health Care Plans.’” While the CBA limited the duration of other benefits, it was silent as to the duration of these benefits. The Sixth Circuit found its earlier decision in Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571 (6th Cir. 2006) involving identical language and circumstances to be indistinguishable, although Yolton was merely a preliminary injunction decision, rather than a decision on the merits. 
 

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EFCA, as introduced in Congress in February 2009, includes sweeping changes to the rules for union organizing. (Please read our earlier blogs for further discussions on EFCA.)  The two most controversial original EFCA provisions are: (1) card-check recognition, which would allow unions to demand recognition rights based solely on union cards that they can pressure employees to sign through face-to-face interaction; and (2) mandatory binding arbitration to resolve impasse in first labor contract negotiations. The card-check provision has been especially controversial because it would result in unions obtaining bargaining rights without a secret ballot election. No doubt sensing that the general public favors secret-ballot elections, a number of moderate Democratic senators have begun to pull back support for card-check recognition as EFCA nears debate in the Senate.

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Back in December 2007, we wrote about the NLRB's decision in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70, which held that employees do not have a protected right to use employer email systems for solicitations or communications regarding union-related topics. In addition, the Board applied a new standard for determining when employers discriminatorily enforce email policies and, thus, violate Section 8(a)(3) of the NLRA. Specifically, as to the 8(a)(3) standard, the Board held that, in determining whether a policy had been discriminatorily enforced against the union, it looked to whether there had been "unequal treatment of equals."  Then, the Board upheld Register-Guard's enforcement of its email policy against an employee who was soliciting support for the union because there was no evidence that the company had permitted solicitation on behalf of other non-union groups (even though it had permitted various other personal uses of the email system, including personal solicitations for sports tickets and the like.) 

On July 7, 2009, however, the Court of Appeals for the D.C. Circuit refused to uphold the Board's conclusion as to whether the employer discriminatorily enforced its email policy but did not explicitly overrule the standard announced by the Board in December.   (On appeal, the union did not challenge the lawfulness of the email policy itself).   In short, the court held that the the company's discipline of an employee for using the email system to solicit employees to wear green in support of the union and to seek volunteers to help with the union's entry in a city parade violated 8(a)(3). Calling the distinction between organizational and personal solicitation a "post-hoc invention" that did not actually exist in the company's email policy, the court found that the company policy prohibiting non-work-related solicitations "made no distinction between solicitations for groups and for individuals."  Equally significant, the court noted that the company’s disciplinary warning" did not invoke the organization-versus-individual line drawn by the Board. To the contrary, the company told the employee in question to “refrain from using the Company’s systems for union/personal business.”

Because it is so fact-specific, the court's decision should not cause employers much concern.   In fact, the email policy at issue, which prohibited use of the company's communications systems “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations,” would seem to be equally applicable to personal solicitations of a non-work nature as it is to organizational solicitations.   The good news here is that the court's decision does not disturb the underlying premise that employers may prohibit union access to its email system so long as it does so in a nondiscriminatory manner.  

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As we reported earlier, there is a split in the federal courts of appeals regarding whether the National Labor Relations Board (NLRB) has authority to issue binding opinions while it is operating with only two members. Since that post, another federal circuit has weighed in on the issue.

The NLRB is the federal agency charged with governing relations between private employers and unions and administering the National Labor Relations Act (NLRA). Ordinarily, the NLRB has five members and frequently delegates power to issue rulings and opinions to three-member panels. In order for the NLRB itself to act, it must have a three-member quorum. In late December 2007, the NLRB had one vacancy and two members whose terms were nearing expiration. Congress and the President clashed on the nomination of replacement NLRB members, and filling the vacancies became unlikely (and still has not occurred). Just before the expiration of the two members’ terms, the four-member NLRB delegated all of its power to a three-member panel, which included the two members whose terms were not set to expire. After the two departing members’ terms expired, the two remaining members of the three-member panel continued to issue opinions, relying on statutory language in the NLRA allowing a three-member panel to proceed as a quorum in the absence of one of its members. 

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 As a result of two contradictory opinions issued today, over 300 decisions issued by the National Labor Relations Board (NLRB or “Board”) in 2008 are potentially in jeopardy because, according to one federal circuit, they were issued by a two-member panel without the authority to issue binding opinions. 

By way of background, the NLRB is a federal agency that administers the National Labor Relations Act (NLRA), which governs the relations between private employers and unions. It is made up of five members. Yet, the NLRA allows for the five-member Board to delegate power to issue rulings and opinions to a three-member panel. On December 28, 2007, the Board had only four members. On that date, the four-member Board voted to delegate all of its power to a three-member panel. Just three days later, the terms of two of the four members that made the vote to delegate expired, leaving only two remaining members. During all of 2008 and early 2009, the Board had three vacancies for which Congress and the President clashed on the nomination of replacement Board members. Yet the two-member panel issued over 300 published and unpublished opinions in the labor relations area, proceeding as a quorum of the three-member panel—with two of the three required members of the three-member panel to whom the Board delegated its power.

The U.S. Court of Appeals for the D.C. Circuit ruled today that those decisions were invalid because the Board, including the panel to whom it delegated its power, lacked authority to act without at least three members. Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, Nos. 08-1162, 08-1214 (D.C. Cir. May 1, 2009).  In reaching this conclusion, the D.C. Circuit relied on a provision of the NLRA requiring the Board to have a quorum of the Board itself (i.e. three members) “at all times” in order to be able to act. The D.C. Circuit held that, in order for two members of a three-member panel to act as a quorum under the statute, the Board itself must have at least three members; otherwise, the panel’s power is suspended along with the power of the Board itself. This decision invalidated all of the NLRB opinions issued in 2008 and early 2009.

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Struggling employers have been asking, can we reduce or eliminate retiree medical benefits? The Supreme Court has held that welfare benefits regulated by the Employee Retirement Income Security Act (ERISA) do not usually vest, and courts have generally followed the Sixth Circuit’s presumption that retiree medical benefits are not vested, unless the plan documents confer vesting. Thus, with proper reservation of the right to amend and terminate the plan, and consistent communications, an employer may be able to terminate these benefits without much risk of successful challenge.

But what if employees are unionized? In that case, the plan documents are not enough; courts also look to the terms of the collective bargaining agreement (CBA). And as the Sixth Circuit reminds us this month, the most important question just might be: in what court could this case be litigated? In Tackett v. M&G Polymers, USA, LLC, No. 07-4515/4516 (6th Cir. Apr. 3, 2009), the Sixth Circuit reversed dismissal of a retiree class action lawsuit, finding that the language in the CBA demonstrated an intent to vest retiree medical benefits sufficient to survive a motion to dismiss.

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Last week, the Obama Administration reiterated its commitment to enact comprehensive immigration reform during the first year of the new administration. On Tuesday, the New York Times reported that a coalition of unions have agreed to support the Administration’s initiative, joining the business community and the Chamber of Commerce, who have long supported immigration reform. Of course, with immigration reform, as with other contentious legislation, the devil is in the details, and different advocates define immigration reform differently. 

The Unions, Chamber of Commerce and the Administration agree that key elements of reform will include a reduction in the excessive backlogs for permanent resident status in both the employment and family based application tracts. There also appears to be an agreement coalescing among the interested stakeholders that will include a path to citizenship for the estimated 12 million undocumented immigrants in the country. 

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On April 1, 2009, in a 5-4 decision, the United States Supreme Court clarified an issue of confusion among lower courts when it held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.” 

The case, 14 Penn Plaza, LLC v. Pyett, No. 07-581, 556 U.S. ___ (2009), is a marked departure from established precedent in some jurisdictions and welcome news for employers who often prefer to present their cases to an arbitrator, rather than a jury. 

Until 14 Penn Plaza, the Supreme Court’s direction regarding the enforceability of a provision in a collective bargaining agreement that required a union member to arbitrate a statutory discrimination claim was not clear. In an earlier decision discussing whether an employee could be compelled to arbitrate a statutory discrimination claim, Alexander v. Gardner-Denver, 415 U.S. 36 (1974), the Court found that the provision at issue did not expressly require arbitration of a member’s statutory rights, so the employee could not be precluded from bringing statutory claims in a judicial forum.

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The Employee Free Choice Act, or EFCA, was introduced in Congress on March 10, 2009. The bill, introduced as H.R. 1409 and S. 560, is identical to last year’s bill. On February 26, we discussed the Secret Ballot Protection Act (see post here), which was proposed by Republicans as a preemptive strike against EFCA and which would prohibit employers from recognizing or bargaining with a union that had not won a secret-ballot election of employees. Democrat Joe Sestak, Congressman from Pennsylvania, has also introduced legislation targeting the relationship between unions, employees, and employers. Rep. Sestak introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355) on March 5, 2009. 

The NLRMA mirrors many of the provisions of EFCA but does not include one key provision: the NLRMA does not contain the card-check provision that would eliminate employees' right to choose a union through a secret-ballot election. The NLRMA does, however, contain EFCA’s increase of damages for employers who commit unfair labor practices, a provision similar to EFCA’s regulating the timeline for negotiating the terms of an initial collective bargaining agreement, and a requirement that the parties submit to binding arbitration if they are unable to reach agreement. The NLRMA also contains a novel section—not included or addressed in EFCA or SBPA—which requires employers, following the setting of an election date, to notify unions of any campaign activity they intend to undertake and to allow unions equal access to employees.

Although EFCA is currently in the nation’s spotlight, there is considerable discourse among the public and Congress about the appropriateness of its card-check provision. If Congress becomes convinced that a card-check provision is not the right way to go, NLRMA or some other compromise bill might provide the consensus necessary to pass some sort of labor reform legislation. One thing seems clear. In order for any compromise to get the support or organized labor, it will have to include some means to make it easier for unions to organize workers and some provision for binding dispute resolution when bargaining a first labor contract. These are the things considered by unions to be key to their goal of increased union representation, a goal supported by the White House, by union supporters in Congress, and by the newly appointed Secretary of Labor. Employers should begin now to plan and take steps to prepare for what is certain to be a very concerted increase in union organizing activity.

Among the essential steps are manager training, designed to make managers especially aware of the likely changes in the law, but more important to make them aware of the specific arguments that are used by union organizers to get cards signed and the sort of manager behavior that will make it more likely those union arguments fail. Employers should also undertake a concerted review of policies and practices to be sure that they have in place those rules that make it more difficult for union organizing to succeed and more important, those policies that demonstrate to employees a commitment to effective communication, fundamental fairness, and genuine worker involvement.

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The recent decision by the United States Court of Appeals for the First Circuit in Pan American Grain Co. v. NLRB serves as a good reminder for unionized businesses contemplating layoffs: They may be obligated to bargain with the union that represents their employees not only over the effects of the layoff on employees but, possibly, the decision itself.

In Pan American, the court affirmed the NLRB’s ruling that a Puerto Rico grain company violated federal labor law by laying off 15 striking workers in February 2002 without giving their union an opportunity to bargain over the decision. Approximately 40 employees had been on strike for about two months when the employer announced that 15 of the striking employees would laid off “due to economic reasons and as a result of a substantial decrease in production and sales.” During the unfair labor practice proceedings that ensued following the union’s unfair labor practice charge filing, the employer claimed that the layoffs were prompted due to a combination of its efforts to modernize its operations and reduced sales. The NLRB ruled, and the court agreed, that in situations where there are multiple motives for a layoff, the employer has a duty to bargain with the union over the layoff decision as long as it is based at least partially on labor costs.

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The chatter surrounding EFCA, or the Employee Free Choice Act, quieted down in mid-December, but EFCA is back in the news. 

Yesterday, President Obama’s nominee for his administration’s Secretary of Labor, Hilda L. Solis, was confirmed by the Senate. Secretary Solis was a co-sponsor of the Employee Free Choice Act when she was serving as a congresswoman from California. (See our prior post on Secretary Solis here.)
 

Today was also a big day for EFCA-watchers. Economists organized by the Economic Policy Institute, a progressive think tank, signed a public statement lauding the benefits of EFCA, which they claim would even the playing field between employers and workers in union organizing campaigns. The statement claims that the enactment of EFCA is “a critically important step in rebuilding our economy and strengthening our democracy.” Click here to see the statement in its entirety.

In an attempt to support the rights of employers and of employees who would value the chance to vote in a secret-ballot election, Republicans proposed the Secret Ballot Protection Act (SBPA) today as well. Previously introduced as S. 1312 and H.R. 866 in 2007, the SBPA is a preemptive strike against EFCA. SBPA would amend the National Labor Relations Act so that employers may not recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election administered by the National Labor Relations Board. Any employer who did recognize or bargain with a union that had not won a secret-ballot election of employees would be guilty of an unfair labor practice. The SBPA would also hold unions accountable for causing or attempting to cause an employer to recognize or bargain with a union that had not been democratically elected by employees. 

The SBPA is simply unlikely to pass—it has just 101 co-sponsors in the House and 16 in the Senate—but the bill’s re-introduction will help ensure that the debate about EFCA, both in Congress and in the media, remains two-sided. 

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On Friday, January 30, President Obama signed three executive orders which have a significant impact on the rights of employees of federal contractors. The President said that these orders would “reverse many of the policies towards organized labor that we’ve seen these last eight years, policies with which I’ve sharply disagreed.” In effect, these Executive Orders favor the interests of organized labor concerning representation of employees of federal contractors.

One order requires that a company taking over a federal contract from a predecessor company offer jobs to nonsupervisory employees already on the job when the new contractor takes over. This requirement is a revival of a Clinton administration order that was rescinded by President Bush. This Executive Order essentially gives the incumbent employees a right of first refusal for jobs with the new contractor. The effect is that if the employees were represented by a union with the predecessor company, the incoming company will have to recognize the union as the representative of the employees and bargain with the union over the initial terms and conditions of employment that will apply on the job.

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Numerous news reports suggest that President-Elect Obama will name California Congresswoman Hilda Solis (D. Cal.), who was a co-sponsor of the Employee Free Choice Act, as his administration’s Secretary of Labor. Both the SEIU and the AFL-CIO have issued press releases enthusiastically responding to this news. Those of you who are curious or wary about this selection may wish to visit her website at http://solis.house.gov

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As the economy takes a hit and the federal government considers bailouts, unions are chomping at the bit to get the organizing started. An SEIU (Service Employees International Union) internal email was leaked on CNN.com on Monday. In the email, SEIU employees disclose a specific plan to organize employees in the banking industry. The reason for targeting the banking industry? Because “the banking industry is now being infused with billions of dollars.” The email lists specific potential targets for future organizing efforts, including Fannie Mae, Freddie Mac, Chevy Chase/ B.F. Saul, BB&T, SunTrust, Bank of America/ Countrywide, Wachovia/ Wells Fargo, PNC Bank/ National City, and Citigroup. This list does not mean that SEIU will only target these banks. It is understandable that SEIU would target the biggest banks first—but other banks are surely to follow, especially if the union is welcomed by employees who are nervous about the future of their employment. 

As unions anticipate unprecedented changes to federal labor law that will make it far easier for them to organize workers (see EFCA post), economic uncertainty and federal bailouts are providing unions with precisely the talking points they need to convince employees that they are on uncertain ground without a union. As we have been discussing in our EFCA briefing sessions, it is important that employers in all industries develop a proactive strategy now that will protect them against union organizing campaigns in the future.

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Of course, no one can be certain of the exact workplace effects of Tuesday’s Presidential election results. But, at least one major change in employment law is pretty certain – and it is a change that all employers, large and small, in all industries, should be planning for now.

President-Elect Obama has stated clearly his support for the proposed Employee Free Choice Act (EFCA). His election, together with additional Democratic seats picked up in the Senate and Congress, make the passage of EFCA in 2009 a very strong likelihood. That will mean the most dramatic change in labor law in this country in decades.

As a reminder, there are two significant provisions of the EFCA: First, unions will be able to demand bargaining rights based solely on cards that they can pressure employees to sign face-to-face. The protection of a secret-ballot election will be taken away. Second, if labor negotiations between a union and employer for a first contract reach impasse, an outside arbitrator will dictate the terms of that key first contract.

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Starting in 2002, in an effort to organize employees at a Cintas Corporation facility in Pennsylvania, UNITE union organizers began recording the license plate numbers of vehicles located in the Cintas parking lot.  The organizers then accessed, either directly or through information brokers, state motor vehicle records to identify the employees’ names and home addresses. Ultimately, through this process, which is known as “tagging”, the union obtained the addresses for approximately 2000 workers (or their relatives or friends) and began visiting their homes with an eye toward convincing them to sign authorization cards. 

Unhappy with these tactics, several employees (together with family and friends whose cars also had been “tagged”) filed a class action lawsuit against UNITE under the federal Driver’s Privacy Protection Act.  That Act provides that a “person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall beliable to the individual to whom the information pertains, who may bring a civil action. . . .”

The federal district court found UNITE liable under the DPPA back in 2005, awarded most of the named plaintiffs the statutory $2,500 in damages but deferred consideration of classwide relief.   Finding that the union’s organizing efforts did not constitute a “permissible use” under the DPPA, the Third Circuit, on September 10, 2008, upheld the finding of liability in a decision that can be read here. In addition, the court remanded the case back to the district court to consider whether any of the plaintiffs were entitled to multiple damage awards for multiple DPPA violations and to determine whether to hold a jury trial on punitive damages. 

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

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

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

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