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.
In a recently-issued decision, Supply Technologies, LLC, 359 NLRB No. 58 (2012), (pdf) the National Labor Relations Board struck down a non-union employer’s mandatory arbitration program on the grounds that the program interfered with employees’ Section 7 rights under the National Labor Relations Act (“the Act”). The Board’s penchant in recent years for finding various policies (social media, confidentiality, etc.) in violation of the Act has become as predictable as a reality TV episode.
The Board traditionally applies a three-prong test to evaluate whether a policy that does not explicitly restrict Section 7 rights may nonetheless violate the Act. Under this test, the employer’s policy runs contrary to the Act if: (1) employees would reasonably construe the policy to restrict Section 7 activity; (2) the policy was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict Section 7 activity. It is the first prong – whether or not employees would “reasonably construe” the policy as restricting Section 7 rights – that the Board has used to invalidate many policies that ordinarily would not reasonably be construed as having anything to do with Section 7 rights.
Member Hayes said it best in his dissent in Supply Technologies when describing the Board’s “distortion” of the first prong: “...the test is not whether ambiguous language would reasonably tend to interfere with employees’ Section 7 rights. The test is simply whether the language is ambiguous.”
As private sector unionization continues to decline, thereby reducing the number of employees who typically look to the Board for relief, the Board will likely continue to expand its reach to non-union settings – as it did in this case – by finding that everyday policies present in most workplaces violate the Act.
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Protection of Employer's Public Image Justifies Limited Rule Prohibiting Employees from Wearing Union T-Shirts
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.”
The National Labor Relations Board filed a brief with the Fifth Circuit Court of Appeals on September 4, 2012, defending its decision in D.R. Horton Inc., 357 NLRB No. 184 (Jan. 3, 2012), and asking the court to enforce its original decision and order.
In D.R. Horton, the NLRB held that an arbitration agreement requiring employees to waive “as a condition of employment” their right to bring a joint, class or collective action violates Section 8(a)(1) of the National Labor Relations Act, which protects the rights of employees to engage in concerted, protected activity. Significantly, for purposes of the appeal to the Fifth Circuit, the NLRB reached this decision in a 2-0 vote on January 3, 2012, which was the final day of recess appointee Craig Becker’s term.
The employer petitioned the Fifth Circuit for review on January 13, 2012, and the NLRB cross-applied for enforcement of its order on March 19. There are three issues on appeal: (1) whether the NLRB reasonably found that the employer violated Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration agreement that waives employees’ right to pursue employment-related claims in a concerted manner in any forum; (2) whether the NLRB reasonably found that the employer violated Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration agreement the employees could reasonably interpret as restricting their right to file unfair labor practice charges before the NLRB; and (3) whether the Board’s order, based on a 2-0 vote, was validly issued.
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.
By Reid Carron
Good news for employers: initial protected activity will not entitle a repeat offender to reinstatement. In its decision in Human Services Projects d/b/a Teen Triumph, 32-CA-25262 (February 6, 2012), a Board majority held that an unrepresented employee who had been discharged in violation of the NLRA lost the right to be reinstated when, several months after the discharge, he accosted a former coworker who was still employed by the respondent employer and verbally abused her in a “profanity-laced tirade” about a matter unrelated to his discharge. The Board held that such conduct made the former employee “unfit for further service,” and required the employer to reimburse the employee for lost pay and benefits from the date of discharge until the date that he accosted the former co-worker. The Board denied the request for reinstatement.
Conduct related to otherwise-protected activity can lose its protection and provide a lawful basis for discharge or a denial of reinstatement if it is “so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.” The Board found that the employee’s conduct immediately following his discharge – refusing to leave the premises, challenging a supervisor who ordered him to leave, and ultimately getting arrested – did not fall to that level. The later tirade against a coworker was the conduct the Board found rendered him unfit for further service.
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.
In an interesting interpretation of logic and language, a 2-1 NLRB majority decided that a company “reemployed” illegal strikers by telling them they were locked out when they attempted to return to work. Douglas Autotech Corp., 357 NLRB No. 111 (Nov. 18, 2011).
The United Auto Workers Local 822 (UAW) represented a unit of 146 employees at Douglas Autotech’s Bronson, Michigan plant. The UAW’s contract expired April 30, 2008, and employees struck the next day. Within days, the UAW discovered that although it had served notice to terminate the labor contract, it had failed to file the separate notice of dispute with the Federal Mediation and Conciliation Service (FMCS). As the party initiating bargaining, the union could not lawfully strike until 30 days after the FMCS notice was filed.
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.
Employers will now have until January 31, 2012 to comply with the National Labor Relations Board’s notice posting rule: Notification of Employee Rights under the National Labor Relations Act. This rule, which was slated to take effect as of November 14, 2011, mandates that all private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. Last month, the NLRB made available a copy of the required poster as well as a list of frequently asked questions about the rule.
According to a press release announcing the extension:
The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.
The rule itself is facing both legislative and legal challenges. Notably, the National Association of Manufacturers (NAM) has filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule. A hearing on motions for summary judgment is set for December 19, 2011. The court is expected to issue a decision on these motions before the rule’s new effective date.
For more information on the NLRB’s notice posting requirement, see Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles. In addition, Littler invites you to a complimentary webinar on the new rule and its workplace implications.
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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.
The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act. This final rule, issued on August 25, 2011 and effective November 14, 2011, mandates that private sector employers subject to the NLRA post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The agency has also posted to its website a list of Frequently Asked Questions regarding the notification requirement.
Meanwhile, the rule itself is facing both legislative and legal challenges. Two bills – the Employee Workplace Freedom Act (H.R. 2833) and the Employer Free Choice Act (H.R. 2854) – were introduced in the House of Representatives earlier this month. Both of these measures would rescind the posting rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.
In addition, last week the National Association of Manufacturers (NAM) filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule, claiming the Board exceeded its authority in issuing it. In a press release, NAM President and CEO Jay Timmons said: “This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have.”
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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.”
The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.
While the report does not provide any hard and fast rules for employers, taken as a whole, the various decisions appear to establish the following guidelines:
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.
A trio of advice memoranda issued by the National Labor Relations Board’s Office of the General Counsel has offered employers a glimpse of what showing must be made to render an employee’s social media use protected by the National Labor Relation Act. The Acting General Counsel’s recent trend targeting employers’ disciplinary actions based on employees’ inappropriate use of Facebook, Twitter, and other forms of social media, has left employers on unsteady ground.
In each of the three cases discussed in the advice memoranda released this week, the Division of Advice’s Associate General Counsel, Barry Kearney, recommends dismissal of the claims that the employers violated the NLRA by unlawfully terminating or reprimanding employees based on their inappropriate Facebook activity, as there existed insufficient evidence that the employees were engaged in concerted activity.
NLRB: Employees Failing to Notify Home Health Care Employer They Were Participating in Strike Could Not Be Disciplined
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.
Among the more significant initiatives that NLRB Acting General Counsel Lafe Solomon has pressed for is the implementation of a program to streamline the process for seeking Section 10(j) injunctive relief ‑ and to expand the substantive scope of when to pursue such serious relief. Section 10(j) of the National Labor Relations Act (NLRA) permits the NLRB to seek a federal court injunction to proscribe unions and employers from committing unfair labor practices – the intended purpose being to use such drastic court-sought remedies where needed to maintain the status quo while a matter is pending before the Board.
While Solomon focuses on the Section 10(j) program as a “top priority,” some have questioned whether the Board’s General Counsel even possesses the statutory power under the NLRA to approve independently such direct court action without the NLRB itself becoming involved.
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.
In Sheet Metal Workers Local 15 (Brandon Regional Medical Center) (May 26, 2011), the NLRB ruled that a union’s display of a large inflatable rat at the hospital worksite of a secondary employer was lawful. The case dates back to 2006, when Brandon Regional Medical Center filed charges under Section 8(b)(4)(ii)(B) of the NLRA based on the union’s act of staging a “mock funeral” on public property in front of the hospital, with union members carrying a fake casket, dressed in grim reaper costumes, and patrolling back and forth. The union’s activities were aimed at the hospital’s use of contractors with whom the union had disputes. Section 8(b)(4)(ii)(B) makes it an unfair labor practice for a union to “threaten, coerce, or restrain any person engaged in commerce or an industry affective commerce, where...an object thereof is...forcing or requiring any person to cease doing business with any other person.” The touchstone of such secondary violations has been the coercive nature of the behavior at issue. Conduct more akin to picketing or patrolling had been deemed coercive and unlawful, whereas conduct such as handbilling, even if directed toward the same ends, was deemed lawful persuasive – as opposed to coercive – behavior within the meaning of that section. Because the Board initially decided the mock funeral violated Section 8(b)(4)(ii)(B), it found it unnecessary to pass on the hospital’s allegation that the union violated the same provision by its display of a 12 foot wide by 16 foot tall inflatable rat 100 feet from the hospital’s entrance. The rat was identified as the nonunion contractor of the hospital, and the union distributed leaflets attacking the contractor as a “rat.”
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.
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While the rising number of matters before the NLRB has demonstrated that an employee’s use of social media such as Facebook or Twitter can be considered protected concerted activity, a recent NLRB regional office advice memo (pdf) emphasizes that not all social media use can be considered protected. The NLRB Division of Advice instructed the Board’s Phoenix regional office to dismiss a newspaper reporter’s unfair labor practice complaint, as the reporter’s “inappropriate and offensive Twitter postings” did not involve protected activity, and therefore his termination was not unlawful.
After the employer newspaper encouraged reporters to use Twitter to increase interest in and direct readers to the paper’s online articles, the reporter alleging the ULP violation opened a Twitter account with his own chosen screen name and password. He controlled the content of his tweets using his work computer, his company provided cell-phone, and his home computer. The biography section of his Twitter account included information that he was a reporter for his employer, and included a link to the paper. While the paper did not have a social media policy at the time, it did provide employees with an employee handbook that included various rules of conduct.
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.
The Board recently expanded its protections for union bannering by concluding that a union display of stationary banners was not a violation of the NLRA’s prohibition against secondary boycotts even where the “primary” and “secondary” employers shared a common job site. The union in Southwest Regional Council of Carpenters (New Star General Contractors) (pdf) placed a large banner at the secondary employer’s worksite to publicize the union’s dispute with the primary employer. The union’s goal was to pressure the secondary employer by publicly “shaming” it for doing business with the primary employer during an ongoing union dispute. In this case, the Board ruled that the union’s bannering at a common worksite (a “common situs”) was not an unfair labor practice and did not “threaten, coerce or restrain” the secondary employer’s workers.
The Board’s recent decision is significant because it permitted a union to publicize its dispute with the primary employer at a “common situs” shared job site where several other companies were also working. In reaching its decision, the Board majority (Chairman Liebman and Members Becker and Pearce) cited its recent 2010 decisions, finding that a union’s stationary banners near a secondary employer’s jobsite did not amount to illegal picketing of the secondary employer because it did not “induce or encourage” employees to stop working and did not otherwise signal to employees to engage in a work stoppage. Member Hayes dissented, restating his position from the previous cases that the stationary bannering displays were unlawful as coercive conduct. Member Hayes went further in New Star General Contractors, viewing the union’s banner both as unlawful picketing and as intending to communicate a message for the secondary employer’s workers to engage in a work stoppage at the common worksite.
The significance of this decision likely will be seen on a wider scale where unions engage in continued bannering efforts directed at neutral secondary employers where the primary employer’s workers are on the “common situs” shared job site. The Board’s reasoning permits unions to publicize disputes with primary employers without well-defined limitations requiring unions to avoid disruption or unlawful appeals to the workers of secondary employers. The Board has now established a pattern of decisions condoning union tactics of placing banners at any entrance to a common worksite, regardless of where the primary employer’s workers enter and exit the jobsite. It is unlikely that the Board’s current view of the union bannering strategy will be limited unless reversed by a federal appellate court.
Despite the Board’s current composition and recent slant, it remains advisable for employers to consider continued use of a reserved gate system when facing union bannering efforts. The established practice of reserved gates for primary employers facing unions publicizing labor disputes permits separation of secondary employers’ workers at the “common situs” job site and may help minimize the opportunities for unlawful work stoppages or slowdowns.
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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.