Labor Relations Counsel - Legal Insight into Labor Relations Developments

By Denise Barton Ward 

In NLRB v. Special Touch, 2013 U.S. App. LEXIS 4058 (2d Cir. Feb. 27, 2013), the U.S Court of Appeals for the Second Circuit denied a National Labor Relations Board petition for enforcement in a well-reasoned case that employers may view as a sign that someone is listening to their pleas for common sense in labor decisions. The facts are relatively straight-forward.  Special Touch subcontracts with nursing and health-related services to provide home health aides. The patient population has either been ordered by a physician to receive home care, has an illness that prevents normal functioning and daily living activities, is homebound, or is receiving in-home health services. The SEIU provided a Section 8(g) notice to the employer of its intent to strike, as is its right. The employer, according to its rights, contacted the approximately 1400 aides scheduled to work to inquire whether they planned to take any time off during the time period provided by the union for the strike. Approximately 75 aides stated their intent to be absent. When the strike began, however, an additional 48 aides who had not previously stated they would be absent failed to appear for work. At the conclusion of the strike, the 75 who had informed the employer of their absence were reinstated; the other 48 were terminated.

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By Jeff Place 

Many employers are surprised to learn that employees have a “presumptive right” to wear union insignia and to display pro-union messages on shirts, badges, or buttons while working, even when the employer finds the message objectionable. However, employers can enforce narrowly drawn restrictions against the wearing of union insignia if they demonstrate “special circumstances” that justify the restrictions. In an Advice Memorandum issued on November 28, 2012, the NLRB’s Division of Advice determined that an employer satisfied the “special circumstances” test when it prohibited attorneys in its law department from wearing any kind of t-shirt, including t-shirts displaying pro-union messages.  

The New York State Public Employee Federation (a union) employs a variety of staff personnel, including attorneys in its legal department. The Federation’s non-supervisory employees are represented by United Steelworkers Local 9265. During protracted negotiations for a new labor agreement covering the Federation’s represented employees, the Steelworkers distributed bright red t-shirts to its members with the message “Unionism Begins at Home” printed on the front. The Steelworkers urged all of its members to wear the t-shirts on a particular day, in a show of solidarity. When five out of the six attorneys in the Federation’s legal department wore the t-shirts on the designated date, the Federation’s general counsel sent an e-mail message to the attorneys stating “T-shirts are not acceptable attire in this office. Please do not wear them while you are in this office.”

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By George O’Brien

Lafe Solomon, Acting General Counsel of the National Labor Relations Board, spoke on June 11, 2012, at the annual meeting of the Connecticut Bar Association and made a number of comments on issues of concern to employers.

Social Media Policies. Solomon said there are now about 100 charges pending at the Board related to social media issues. The Acting General Counsel has taken an active role in handling these cases, both by having decisions about them centralized in the Division of Advice and by issuing three public memoranda wherein he discusses what social media actions are protected by the National Labor Relations Act and the kinds of employer policies that may violate the Act.  Solomon pointed out that while the Board does not issue advisory opinions, his most recent memorandum includes the full text of an employer’s social media policy that the Division of Advice found to be lawful in its entirety.

Solomon acknowledged that the same memorandum contradicts advice that some Regional Directors previously gave to employers that they could cure potential faults in social media policies by including a savings clause telling employees the policy would not prohibit discussions of wages, hours and working conditions or other activities protected by the Act. This point also is discussed in Littler’s recent ASAP. Solomon said that he and others at the Board’s national office in Washington, D.C. decided that “a savings clause no longer protects an unlawful provision” in such a policy.

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In D.R. Horton, Inc., (pdf) the National Labor Relations Board, by a 2-0 vote, found that an arbitration agreement requiring "as a condition of employment" all employees to agree to waive the right to bring class or collective actions in any forum violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which guarantees the rights of employees to engage in concerted, protected activity. The decision was issued by Board Chairman Mark Pearce and Member Craig Becker on January 3, 2012, the final day of Member Becker's controversial recess appointment. Republican Board Member Brian Hayes was recused and did not participate in deciding the merits of the case. The decision has potentially wide-ranging implications for employers who have required employees to agree to arbitrate their disputes and at the same time waive the right to pursue their claims on a class or collective basis. The decision, however, also leaves open the possibility that agreements that are not "imposed" on employees may yet be enforceable, even if those agreements ban class or collective actions in any forum. Continue reading about this development here.

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule (pdf) adopting regulations that implement Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) Among other requirements, this E.O. mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice "in all places where notices to employees are customarily posted both physically and electronically," informing them of their rights under the National Labor Relations Act (NLRA). Covered contractors are also required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000. This notification rule should not be confused with the National Labor Relations Board’s final rule – Notification of Employee Rights under the National Labor Relations Act – that requires private sector employers subject to the NLRA to post a notice informing employees of their rights under the NLRA. Continue reading this entry at Littler's Washington DC Employment Law Update.

An administrative law judge with the National Labor Relations Board issued an opinion last week holding that the National Labor Relations Act protected an employee’s sarcastic post, but nonetheless upheld the dealership’s termination decision because it was based on other, unprotected Facebook content. The decision is an important reminder for employers that when protected and unprotected content appear on the same Facebook wall, the protected content does not shield the employee from discipline based on the unprotected content. To learn more about the decision and its implications for employers, please continue reading at Littler's Workplace Privacy Counsel.

On July 26, 2011, in Register Guard, 357 NLRB No. 27 (July 26, 2011), the NLRB issued a decision on remand from the U.S. Court of Appeals for the D.C. Circuit involving a challenge to an employer’s e-mail use and solicitation policy, and its enforcement of the same.  Neither the new Board decision, nor the appellate court opinion changes the precedent set by the original Register Guard decision in December 2007.  In that decision, the NLRB modified then-existing precedent concerning discriminatory enforcement of company rules and policies, announcing a narrower standard for discrimination with respect to rules governing activities or communications.  In so doing, the Board upheld the facial validity of an employer’s policy that prohibited the use of e-mail for “non-job-related solicitations,” acknowledging that an employer could make distinctions in its rules that might adversely affect employees’ NLRA Section 7 rights (such as allowing charitable, but not non-charitable e-mail solicitations), so long as such policies (or enforcement of those policies) did not discriminate along Section 7 or union-related lines.

The initial case involved a challenge to two disciplinary actions the employer took toward an employee under its e-mail use policy.  The D.C. Circuit reversed the Board’s initial ruling, holding that both instances of discipline violated the Act.  The D.C. Circuit noted that, while the employer argued the employee was disciplined for making solicitations on behalf of an organization, rather than on behalf of an individual, there was no basis in the employer’s policy for such a distinction, thus leading to the inference that the enforcement was based on the union-related nature of the communication.  The court observed that neither the company’s written policy nor its explanation in the warning drew a distinction between individual and organizational solicitations, finding that the employer’s rationale was “a post hoc invention” raised only after the General Counsel filed the complaint.  On remand, the NLRB accepted the D.C. Circuit’s ruling in this regard as “law of the case.”

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Ever since the National Labor Relations Board (NLRB) filed a complaint, last November, against ambulance service provider AMR for firing an employee who had called her supervisor a “mental patient” on her Facebook wall, employers have been forced to ask themselves the following question: Do I really need to worry that the NLRB will knock on my door every time I discipline an employee for an obnoxious or offensive Facebook post related to work? Until two weeks ago, there was no easy answer to that question. The AMR case and virtually all of the other “Facebook cases” initiated by the NLRB had either settled or had not yet resulted in a published decision. Then, last month, the NLRB’s Office of General Counsel issued three Advice Memoranda in rapid succession that provide at least some guidance for employers trying to navigate the intersection of social media and labor law. To learn more about the memoranda and their implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.

The National Labor Relations Act (NLRA or “the Act”) requires unions representing employees in the health care industry to provide written notice to the employer ten days prior to any strike.  When a union provides the required notice, employers are permitted to poll employees to determine whether they plan to participate in the strike.  These polls, though unlawful in other industries, are allowed in the health care industry so that affected employers may make alternative staffing arrangements in order to avoid disruptions in patient care.  In Special Touch Home Care Services, Inc., 357 NLRB No. 2 (2011), the Board recently held that an employer violated the Act when it disciplined employees who responded to a lawful poll by indicating that they would work during a strike, but who then participated in the strike without providing any notice to the employer.   This decision appears to substantially undercut the effectiveness of the polling process available to employers in the health care industry.  The decision also reinforces that employers in all industries will be required to present individualized evidence of specific harms before they will be allowed to discipline employees for striking without notice.

Continue reading this blog entry on Littler's Health Care blog, www.healthcareemploymentcounsel.com

By Arturo Ross and Micah Heilbrun

The First Circuit Court of Appeals continued the current Board’s trend of striking down employer policies alleged to be overbroad restrictions on employees’ NLRA Section 7 rights.  In NLRB v. Northeastern Land Servs., Ltd., 2011 U.S. App. LEXIS 12678 (1st Cir. 2011), the First Circuit granted enforcement of the Board’s finding of 8(a)(1) violations and its order compelling the employer to rescind its confidentiality policy, reinstate a discharged employee, and compensate the former employee for lost interim earnings.  The decision is troubling for all employers as it demonstrates the Board’s increasing efforts to police non-union workforce issues and company confidentiality policies. 

In the NLS case, the Rhode Island-based employer provided temporary workers on a contract basis to its clients in the natural gas pipeline and telecommunications industries.  The employer required its employees to sign employment agreements that included a confidentiality provision stating that workers could not disclose compensation terms to third parties, and violations could result in termination.  In 2001, the employer began receiving complaints from one of its employees about his delayed repayments for hotel expenses, and a daily rate payment for use of his personal computer and use of his company-provided cellular phone.  Not satisfied with the employer’s response, the employee aired his gripes to his contact at one of the employer’s clients, in an effort to pressure the employer into caving into his demands.  The employer terminated the employee for violating the terms of the confidentiality provision in his employment agreement.  The employee filed a ULP charge with the Board and claimed retaliatory discharge.

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Continuing its efforts to shape the law in the area of social media, the National Labor Relations Board has filed a complaint against a nonprofit organization for terminating five employees based on comments posted on Facebook. This complaint is the latest in a string of recent Board actions taken against employers that target their employees’ social media use.

According to a press release on this complaint, an employee with the social services nonprofit mentioned on her Facebook page a coworker’s claim that other employees were not doing enough to help their organization’s clients. Other employees chimed in to defend their job performance and “criticized working conditions, including work load and staffing issues.” Claiming that the posts amounted to harassment against the original employee mentioned in the first posting, the employer fired the five employees who participated in the Facebook thread.

The NLRB alleges that these back-and-forth Facebook postings constituted protected concerted activity “because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.” A hearing on this complaint is scheduled for June 22, 2011.

This complaint, and the NLRB’s willingness to publicize this case and others involving social media at the complaint stage of the proceedings, demonstrates that the agency is actively seeking to shape the law governing social media and its role in the workplace.

Photo credit: Warchi

Several recent cases issued by the National Labor Relations Board continue to reflect a consistent majority view with respect to representation cases and unfair labor practice matters.  In Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant, 356 NLRB No. 129 (March 31, 2011), the Board held that the employer, a New York City restaurant, had engaged in a host of Section 8(a)(1) violations of the NLRA, including interrogating, threatening and attempting to arrest an employee because he and a group of 20 to 25 nonemployees entered the restaurant during evening dining hours to deliver a letter protesting the employer’s alleged labor law violations. The employer’s wait staff had been expressing dissatisfaction over their belief that they were not getting all the tips left by the customers.  Employees advised restaurant management of the issues, and the wait staff consulted with the Restaurant Opportunity Center, an advocacy group, in New York City that organizes restaurant workers for workplace justice campaigns. 

Although the legal standard involving Section 8(a)(1) allegations was not in dispute, there was a significant factual disagreement.  When the dust settled, the administrative law judge and the Board majority accepted the employees’ version of events.  The majority stated that there was no evidence that the group disturbed the handful of patrons present, blocked the ingress or egress of any individual, was violent or caused damage, or prevented any employee from performing his work. Thus, the activity remained protected at all times.  This case underscores the importance of the credibility of witnesses and the cohesion of each witness’ version of the events.

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On Valentine’s Day, 2011, the Board held that an employer violated the National Labor Relations Act when it fired an employee for carrying a hidden audio recorder into a meeting where the employee claimed he reasonably believed he would be denied rights guaranteed to him under the Act.  Surprisingly, the Board implied that any work rule prohibiting employees from making clandestine audio recordings in the workplace might be deemed unlawful, if the rule did not include an express exception for recordings made in an effort to protect or advance employee rights under Section 7.

In Hawaii Tribune-Herald, 356 NLRB No. 63 (2011), an employee made a clandestine audio recording of a meeting with his supervisor, after the supervisor refused to allow the employee to bring a union representative to the meeting.  The employee claimed he believed the meeting might result in discipline and that the company was violating his Weingarten rights by refusing to allow him to bring a witness to the meeting.  A union representative advised the employee to take detailed notes during the meeting, but, following discussions with coworkers, the employee decided instead to secretly tape record the meeting.  The employee borrowed a voice recorder from a coworker and concealed it in his pocket during the meeting.  At the meeting, the employee’s supervisor verbally warned him about low productivity.

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