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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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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.
 

EchoStar: Lawful. The General Counsel took issue with this policy because it included "employee information" in the list of proprietary information EchoStar considered confidential and subject to the policy. The NLRB reviewed the challenged portion of the policy within the context of the policy as a whole, which used the phrase in a larger definition of "confidential information", which also included trade secrets, satellite technology, customer lists, vendor lists, pricing lists, computer systems technology, sales and profit data, and strategic business plans". Relying on another case that had used the term "employer information" among a list of things that constituted confidential intellectual property where the policy was upheld, the ALJ concluded that a reasonable employee would reasonably understand that the policy was designed to protect the confidentiality of the Company's proprietary business information rather than to prohibit discussion of employee wages or other topics protected under Section 7.

EchoStar: Lawful. The General Counsel argued that the policy limits an employee's ability to participate in the Board's processes and would also be read to limit an employee's ability to concertedly seek the assistance of other government agencies to improve working conditions and that employees are not at liberty to independently discuss the Company or its business with any government agent. The ALJ disagreed and found that the rule made it obvious to a reasonable employee that the limitations apply only to official contacts directed to the Company and not to the employee as an individual with individual information or questions.

EchoStar: Unlawful. Here, the General Counsel argued that the confidentiality policy contained no limiting language and appeared to apply to all investigations and to all employees, whether the employee herself was under investigation, cooperating with the investigation, or merely became aware of the investigation. The General Counsel also took issue with the lack of any temporal restriction in the policy, which could mean the policy applied equally to ongoing and closed investigations.

Although the Company argued that employers need confidentiality in their investigation to be able to conduct a fair and unbiased investigation into matters, the ALJ concluded that the need for confidentiality needed to be determined on a case by case basis after balancing the need for confidentiality against the employees' rights to discuss terms and conditions of employment. Relevant factors according to the ALJ included, 
 

"whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up. Only if the [Company] determines that such a corruption of its investigation would likely occur without confidentiality is the [Company] then free to prohibit its employees from discussing these matters among themselves."
 

EchoStar: Unlawful. The problem in this rule was one not with the inclusion of "insubordination" as grounds for termination; the problem was with the parenthetical that followed, specifically the "undermining" part. The General Counsel argued that this statement was vague and might include conduct that employee might engage in to improve their working conditions, but that have the effect of undermining the Company's interest, e.g., striking, picketing, etc. The ALJ agreed and struck down the policy on what appears to be based the use of the phrase "undermining the Company, management or employees." Had EchoStar not included the parenthetical, specifically the "undermining part, the policy likely would have survived the Board's scrutiny.

EchoStar: Ineffective. The ALJ held that the Company's savings clauses did not in fact "save" " any of the policies he concluded to be unlawful, stating (1) the employee should not be required to "voice his or her fears and trepidations" to human resources if they have questions about a policy's possible reach and (2) a general clause asserting that a policy should be applied and interpreted does not "save" an otherwise invalid rule.

So, for those of you keeping score, 5 of the 7 policies challenged in the EchoStar case were found unlawful and the Savings Clause struck down. For those who like charts like I do, here is what survived under both EchoStar and Costco, which we reported on here, and what did not:

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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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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 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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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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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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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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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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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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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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Over the past few weeks, we have documented the NLRB’s efforts to expand worker rights through rule-making and General Counsel directives. On January 28, 2011, however, the Board went back to its traditional means of fashioning federal labor policy by issuing its decision in Parexel International, LLC., 356 NLRB No. 82 (January 28, 2011).  

In Parexel, the charging party had a conversation with a co-worker about whether he received a wage increase after he had left and then returned to work for the company. He indicated (apparently falsely) that in fact he had received a raise and so did his wife who also had left and returned. The charging party then went to her supervisor, repeated the tale from her co-worker and then suggested that her entire unit should quit and return so they could get raises. The supervisor then told management about the conversation, which resulted in the charging party being summoned to discuss the matter. The charging party reiterated her conversation with the co-worker and stated her belief that the company, which had a significant number of employees from South Africa, was favoring the South Africans when it came to wages. When questioned, the charging party denied having spoken with any of her co-workers regarding her concerns. A few days later, the employee was terminated.

Section 8(a)(1) of the National Labor Relations Act makes it illegal to terminate an employee for engaging in "protected concerted activity." One form of protected concerted activity is to talk to co-workers to raise issues of mutual concern about wages or other working conditions. The NLRB Judge (ALJ) in this case concluded that the company had not violated the National Labor Relations Act because the employee, who had not discussed her concerns with any co-workers, had not yet engaged in any protected activity. In reaching this conclusion, the ALJ noted:

In some respects, [the charging party’s] termination was a pre-emptive strike to prevent her from engaging in activity protected by the Act. See Compuware Corp., 320 NLRB 101, 102-103 (1995). However, I have not encountered any precedent for the proposition that I can find a violation on this basis without evidence that the alleged discriminate (sic.) had in fact engaged in concerted protected activity. Therefore, I decline to affirm the complaint on this basis.

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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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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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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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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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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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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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