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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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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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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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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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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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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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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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