Labor Relations Counsel - Legal Insight into Labor Relations Developments

The Third Circuit recently upheld the National Labor Relations Board’s finding that a separately organized nursing home facility is properly considered a single employer with its parent company. The case, Grane Health Care v. NLRB, involved a nursing home that was purchased by Grane Healthcare Co. Grane subsequently established a new entity called Cambria Care Center to operate the facility. The facility’s employees had been represented by two unions. Grane refused to recognize those unions after it purchased the nursing home. Grane also extended employment offers to most of the facility’s employees, but did not offer employment to four out of the five officers of one union and an employee represented by the other union who was active in an earlier strike. Continue reading this entry at Littler's Healthcare Employment Counsel.

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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 Chip McWilliams 

The National Labor Relations Board’s Division of Advice has sanctioned another employer’s social media policy and actions taken against an employee for the policy’s violation. In an advice memorandum issued on October 19, 2012, Barry J. Kearney, Associate General Counsel for the NLRB’s Division of Advice, recommended the dismissal of unfair labor practice (ULP) charges lodged against Cox Communications on the grounds that neither its social media policy nor the termination of an employee for violating this policy interfered with employees’ Section 7 activities under the National Labor Relations Act (NLRA). 

The complaining employee in this case was a customer service representative responsible for responding to customer concerns and complaints about the employer’s services. After a confrontational exchange with an irate customer, the employee used his cellphone to make disparaging remarks about the customer on his Google+ account. Specifically, the employee posted the following comment: “Just because you are having problems with your tv service does not mean you should call me a fa--ot! F--K YOU!” A coworker responded with a comment mocking the employee and the situation.

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By Bill Pinto

In Century Restaurant and Buffet, Inc., 22-CA-029242 (March 27, 2012), the NLRB determined that defense counsel’s deposition questions regarding employees’ union activities violated Section 8(a)(1) of the National Labor Relations Act. Employers may violate the Act even when their attorneys ask questions at a deposition that are not necessarily beyond the bounds of relevance under the Federal Rules of Civil Procedure. 

Several wait staff employees met with a union representative regarding complaints about their jobs at a Chinese restaurant. Specifically, the employees were upset about side work they had to perform, tip-sharing with their manager, and having to pay for their transportation to work each day. At the time, the union did not represent the employees, but the union representative agreed to locate an attorney to help them with their wage and hour concerns. Subsequently, the three employees filed a federal lawsuit alleging violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law.  

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Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012.

The court states in the order:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

The order schedules oral argument in this case for September 2012. A final decision on the merits in this matter, therefore, is not expected until the fall of 2012 at the earliest.

For the time-being, employers do not have to post the NLRB notice, and the April 30 deadline is no longer in effect for the posting. The existing posting requirement for federal contractors, however, remains in effect. That said, the cases are still subject to final disposition by the courts of appeals, and even possibly the U.S. Supreme Court, which will have the final word on whether the NLRB can make employers post a notice or not. We will continue to monitor this issue for developments.

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UPDATE: Plaintiffs filed notice that they are appealing the decision upholding the Board’s authority to issue its notice posting rule and moved to enjoin enforcement of the rule while the appeal is pending. On March 7, 2012, the district court denied plaintiffs’ motion for an injunction pending appeal.

The U.S. District Court for the District of Columbia issued a ruling (pdf) on Friday that strikes down part of the National Labor Relations Board’s notice posting rule, but declines to address whether the three recess appointments to the Board are valid.

The lawsuit at issue was brought by, among other entities, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW). It sought to enjoin the enforcement of the Board’s new rule mandating that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizing employers for non-compliance. In the event an employer is found to have violated the posting rule, the Board would be permitted, among other remedies, to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would deem a failure to post the required notice a ULP in its own right.

The lawsuit challenged not only whether the Board has the authority under the NLRA to promulgate the rule at issue, but whether the Board’s action was arbitrary and capricious and whether the rule violates the First Amendment.

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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.

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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.

During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (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. Notably, the rule permits the NLRB to toll the six-month statute of limitations period for filing a ULP complaint if the employer fails to post the required notice. Moreover, the rule allows the NLRB to deem the failure to post the notice evidence of anti-union animus in a case where such an allegation is raised.

The consolidated lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Fund Inc. (NRTW) alleges that the agency overstepped its statutory authority and ignored congressional intent in promulgating the rule. In a press release, NAM reports that at the December 19 hearing Judge Berman Jackson “acknowledged the complexities of the issues presented in the case and again encouraged the Board attorneys to discuss delaying implementation of the rule until the court has reached an opinion.” A similar lawsuit contesting the NLRB rule has been filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce.

Several bills also have been introduced to rescind this posting rule, although to date, none have advanced.

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The Fifth Circuit Court of Appeals recently ruled in an unpublished opinion that an investment manager and a Hawaiian resort owned and operated by a subsidiary of the investment manager were a “single employer” under the National Labor Relations Act and were jointly and severally liable for unfair labor practices stemming from their failure to allow union officials access to hotel workers and prohibiting the union from collecting dues at the resort. Oaktree Capital Mgmt. LP v. NLRB, 5th Cir., No. 10-60749, unpublished opinion 9/26/11.

The union included Oaktree Capital Management as a respondent in its charge. Oaktree was an investment partnership and an indirect owner (through another subsidiary) of a property management company (“TBR”) that leased the resort and contracted with another company, to operate the resort. TBR and the resort operator conceded that they jointly employed resort workers, and thus would be responsible for any unfair labor practices. Oaktree, however, contended vigorously that as an “investment manager,” its only role was to advise its investors, who ultimately owned but did not run the resort. The NLRB and Fifth Circuit disagreed.

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During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight. Continue reading this entry at Littler's Washington DC Employment Law Update.

By Nathan J. Allen

A recent decision handed down by the Board demonstrates that employers need to be very careful in the language they use to discuss the union with employees, particularly in the context of union decertification proceedings. In Mesker Door, Inc., 357 NLRB No. 59, a unanimous Board panel reversed the Administrative Law Judge and held that the employer violated Section 8(a)(1) of the NLRA when it relied on a petition and withdrew recognition of a union following a speech given by a plant manager that, among other things, suggested that money spent on defending unfair labor practice charges could otherwise have been spent making improvements in the plant.

In March 2005, a union was certified as the collective bargaining representative of a unit of production and maintenance employees at the employer’s Huntsville, Alabama manufacturing plant.  The parties commenced bargaining in April 2005, and met on 22 occasions over the course of a year.  They failed to reach an agreement, however, by their last bargaining session on May 3, 2006.  The next day, the employer’s plant manager gave a speech during which he told two employees to either cease filing unfair labor practice charges or seek employment elsewhere.  The plant manager further stated that the company had been required to pay their lawyers over $200,000 “to protect the company’s interests against the charges . . . $200,000 that otherwise could have gone into improving life in the plant.”  Finally, the plant manager suggested that if the union had not taken an “us-versus-them attitude” during collective bargaining, the employees would have received larger monthly bonus checks.  Four days after the manager’s speech, and approximately 13 months after the union’s certification, the employer withdrew union recognition based on a petition signed by a majority of the company’s employees. 

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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.”

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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.

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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 Fred Miner

The National Labor Relations Board's recent expansive view of employee rights is not news. What is news is the current Board majority's willingness to hold employers liable for conduct that, on its face, does not infringe any rights protected by federal labor law. Some recent cases have raised the question whether an employer's lawful conduct can nevertheless establish that an unfair labor practice has occurred.

In one such case, the U.S. Court of Appeals for the D.C. Circuit recently answered "no." In Jackson Hospital Corp. v. NLRB, (pdf) a hospital indefinitely suspended a nurse because of her refusal to participate in a meeting with her supervisors without the presence of a union representative. The Board found that the nurse had no legal right to a union representative at the meeting. To the contrary, because it was being held solely to present discipline that her supervisor already decided to impose, the right to request union representation under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) did not apply.  Continue reading this entry at Littler's Healthcare Employment Counsel. 

Two months after the U.S. Supreme Court upheld the enforceability of an arbitration agreement that included a class action waiver clause, the National Labor Relations Board has issued a Notice and Invitation to File Briefs (pdf) on the issue of whether such an agreement constitutes an unfair labor practice, related to a Board case, D. R. Horton, Inc. v. Michael Cuda. The Supreme Court in AT&T Mobility v. Concepcion (pdf) held that the Federal Arbitration Act (FAA) preempted a California state supreme court decision that conditioned the enforceability of a consumer arbitration agreement on the availability of class-wide arbitration. The arbitration agreement that included the class waiver in that case, therefore, was deemed valid.

The administrative law judge in D.R. Horton similarly found that this practice did not violate the NLRA. The Board’s Acting General Counsel took exceptions to the ALJ’s decision. Following briefing by the parties in the case, the NLRB now seeks input from the public and has invited amicus submissions on the following question:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Many consider this challenge to be an attempt by the Board to make an end run around the Court’s finding in Concepcion. Those interested in filing briefs on this issue may do so on or before July 20, 2011. Briefs must not exceed 25 pages and must be filed electronically through the NLRB’s website.

Employment arbitration provisions are a continually evolving area of the law, with recent cases helping to define new parameters.  There are the class action implications of AT&T Mobility v. Concepcion and now NLRB issues raised by an Administrative Law Judge’s decision in Supply Technologies, L.L.C., 2011 NLRB LEXIS 273 (May 31).  In Supply Technologies, the employer instituted an alternative dispute resolution program with a final arbitration step.  The company’s “Total Solution Management (TSM)” contained three documents: Official Rules, Agreement to Use, and Questions and Answers.  The employer terminated approximately twenty employees who failed to sign the TSM.  The Administrative Law Judge found the discharges unlawful because the TSM policy itself was unlawful.  Although the employer argued that the policy stated employees were free to “file a charge or complaint with a government agency,” the ALJ found the additional language requiring an employee who files a charge with an administrative agency to waive his or her right to remedial relief rendered that right meaningless and had a chilling effect on employees’ willingness to exercise the right.  Moreover, the ALJ found the three documents comprising the TSM were entirely inconsistent in whether this right existed at all; the ALJ pointed to other provisions of the program that stated “the only claims” employees could bring outside of the TSM were in regards to criminal claims and claims for workers’ compensation or unemployment benefits and that all other claims “must be brought under the TSM program.”  And, the ALJ noted, the program had no express exception for filing a claim with a government agency, such as the Board, in these additional provisions.  The ALJ therefore found the policies as a whole “rather ambiguous” and “rife with contradictions and inconsistencies regarding” the rights of employees.  As employers take a new look at their arbitration provisions for compliance with other employment areas, such as class action waivers, it may be a good time to ensure the policies pass scrutiny on NLRB issues as well.

This entry was written by Denise Barton Ward.

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.

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In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the National Labor Relations Board held that the existence of three unenforced but overbroad rules in the employer’s handbook required the setting aside of election results in which employees had voted to decertify their union.  This decision makes it easier for unions to argue that overbroad handbook policies affected election results.  Of equal importance, the decision casts doubt on the effectiveness of disclaimer language in which an employer advises employees that “they have rights under the National Labor Relations Act which supersede any possible interpretation of the rules in the handbook.”

The Board found that the employer maintained three overly broad policies in its employee handbook — a “no solicitation or distribution” policy, a “loitering” prohibition, and a “grooming” policy banning the wearing of buttons — and that each policy constituted objectionable conduct that reasonably tended to interfere with employees’ Section 7 rights.  This decision is particularly troublesome for employers given the extent of the employer’s efforts in this case to avoid an inference that its handbook rules interfered with the free exercise of employees’ Section 7 rights.   The record shows that the handbook rules had been in place for two years without prior objections from the union; the handbook was not distributed or emphasized during the critical election period; the rules were not enforced against any protected activity; and when issues of potential ambiguity arose, the employer even issued a memorandum clarifying its intent, amending two of its policies and eliminating the third policy entirely.

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In Longview Fibre Paper & Packaging, Inc. (March 9, 2011), the Board ruled that an employer violated Section 8(a)(1) of the NLRA and engaged in objectionable conduct during a union campaign through its statements to employees regarding the status of certain terms and conditions of employment.

According to the Board, the evidence showed that prior to any organizing efforts by the union, the employer announced a series of favorable benefit changes that were scheduled to take effect at the beginning of the next plan year.  During the union campaign, the employer’s president held a captive audience meeting in which he advised employees verbally and through PowerPoint slides that the previously announced improvements would not be implemented if the union won the election, but would instead be “subject to negotiation,” like all terms and conditions of employment.  While a stand-alone statement that mandatory subjects (such as PTO and wages) are “subject to negotiation” is not itself unlawful, the Board found such statements to be unlawful in this case.  The PTO changes had already been announced, the Board reasoned, and therefore the statement constituted a threat to employees that they would lose a previously announced benefit if they voted for the union.  The Board cited established precedent, noting, “in the midst of an on-going union organizing or election campaign, an employer must proceed with an expected wage or benefit adjustment as if the organizing or election campaign had not been in progress.” 

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The collective bargaining agreement between the National Football League Players Association (NFLPA) and the NFL owners had been briefly extended to 11:59 pm on Friday, March 11 while the parties engaged in negotiations with the assistance of the Federal Mediation and Conciliation Service in Washington, DC. Much to the chagrin of NFL fans everywhere, the players and owners could not reach agreement. While certainly not a substitute for NFL action, the legal maneuvering by the NFLPA will give traditional labor law followers something to focus on other than the prospect of no fantasy football come September.

NFL owners had made it clear for months that they intended to lock out the players if a new CBA was not reached. In an effort to thwart the lockout, the NFLPA disclaimed interest in continuing to represent the players for purposes of collective bargaining. (While the NFLPA’s move has been widely reported as a “decertification,” it is technically a disclaimer of interest.) The players took this action as a predicate to their next legal maneuver – the filing of an anti-trust action in federal court in Minnesota. The players’ theory is that because they are no longer represented by a union, the NFL owners cannot act in concert in dealing with the players. By acting in concert, the players argue, the NFL owners are acting as an illegal trust – a modern day Standard Oil – to control costs and maximize profits. The players bringing the lawsuit, including quarterbacks Tom Brady, Peyton Manning, and Drew Brees, are seeking an injunction prohibiting the lockout and requiring the owners to resume all league business (off-season workouts, free agent signings, etc.)

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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.

This entry was written by Arturo Ross and Micah Heilbrun.

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The NLRB has issued an invitation to file briefs (pdf) to help the agency define the scope of an employer’s duty to provide to the union “witness statements” it obtains in the course of an investigation. This issue arose in Stephens Media, LLC d/b/a Hawaii Tribune-Herald, (pdf) a case recently decided by the Board. In that case, the Board found that the employer had committed unfair labor practices related to the termination of an employee for insubordination.  Among other things, the Board found that the employer had violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to provide or delaying the provision of relevant information requested by the union. In deciding the case, however, the Board separated the question of whether the employer had a duty to provide the union with statements it obtained during the course of its investigation of the employee’s alleged misconduct. In discussing the reasons for severing this issue from the other ULP charges, the NLRB explained that:

Board precedent establishes that the duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Fleming Cos., 332 NLRB 1086, 1087 (2000), quoting Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). Compare Northern Indiana Public Service Co., 347 NLRB 210 (2006) (employer notes of investigatory interviews of employees held confidential). This case illustrates, however, that Board precedent does not clearly define the scope of the category of “witness statements.” This case also illustrates that the Board’s existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement: first asking if the statement is a witness statement under Fleming and Anheuser-Busch and then, if the statement is not so classified, asking if it is nevertheless attorney work product.

In its invitation, the Board asks whether it should continue to adhere to its decision in Anheuser-Busch, Inc. (pdf) that an employer’s duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements. If commenters believe that it should not rely on this precedent, the Board seeks input on the standard that should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct. Also, if the statements at issue are not witness statements, the Board asks whether such documents are “nevertheless [] privileged from disclosure to the union as attorney work product.”

Interested parties may electronically submit briefs no longer than 25 pages in length to the Board on or before April 1, 2011. Responsive briefs no longer than 10 pages may be filed by April 15.

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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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On January 31, 2011, the National Labor Relations Board adopted a finding that Fresh & Easy Neighborhood Market violated the NLRA by maintaining an overbroad no-solicitation rule, interrogating employees, and creating an impression of surveillance. The Board also dismissed two claims that employees were unlawfully discharged for engaging in protected activity. Fresh & Easy Market operates convenience stores in Nevada, Arizona and California. The case involved one of the company’s convenience stores in Las Vegas, Nevada, which had been targeted for organizing by the United Food and Commercial Workers (UFCW) during 2009.

As part of the UFCW’s campaign, union organizers made unannounced visits to the homes of Fresh & Easy Market’s Las Vegas employees, which prompted several employee complaints. Managers informed the employees that they could send written complaints to the local UFCW office and to the company’s legal department, and several employees chose to do so. In following up on reports of unwelcome and confrontational home visits by the UFCW’s organizers, the Las Vegas store manager asked two employees whether they had sent complaint letters or had “spoken to the Union.” The NLRB General Counsel challenged this single conversation as unlawful interrogation that gave the employees the impression that their actions were under surveillance.

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The NLRB’s unfair labor practices charge against ambulance service provider AMR was a shot across the bow for employers. The complaint was the Board’s response to AMR’s discharge of an employee who called her supervisor a mental patient in a “friends-only” Facebook post in violation of AMR’s social media policy. However, the Region that brought the complaint also contended that any social networking policy that prohibited disparagement was per se unlawful unless it carved out rights under the National Labor Relations Act (NLRA). That element of the case raised broad concerns for employers throughout the U.S.  Continue reading this entry at Littler's Workplace Privacy Counsel.

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According to the NLRB’s Summary of Operations for FY 2010, regional NLRB offices conducted more representation elections, processed more unfair labor process (ULP) charges, received more certification and decertification petitions, and recovered more than $9 million more in backpay and fees, dues and fines in FY 2010 than it did during the prior year. Among other things, the summary provides a general overview of the operations and enforcement undertaken by the NLRB during 2010. Highlights of the summary include the following:

• According to the NLRB, the agency exceeded all three of its target goals for 2010. Specifically, the NLRB closed 86.3% of all representation cases within 100 days, 73.3% of all ULP cases within 120 days, and 84.6% of all meritorious ULP cases within one year.
• In FY 2010, the agency recovered $86,557,684 in backpay and reimbursement of fees, dues and fines, up from $77,611,322 collected the previous year.
• There was a 10.1% increase in certification and decertification petitions filed (2,969) in 2010, up from 2,696 in 2009.
• Total case intake was 28,585, up from 25,413 in 2009. Of these cases, the most (23,381) were ULP cases; 3,204 were representation cases, amounting to a 10% increase.
• With respect to representation cases, the NLRB regions conducted 1,790 initial representation elections in FY 2010. According to the summary, 92.1% of these elections were held pursuant to agreement of the parties.
• As a result of the Board’s decision in Dana Corp., 351 NLRB No. 28 (2007), in which it held that an employer’s voluntary recognition of a labor organization does not bar a decertification or rival union petition that is filed within 45 days of the voluntary recognition notice, the agency received 254 requests for Dana notices in 2010.

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In a new General Counsel (GC) memo – Revised Casehandling Instructions Regarding the Use of Default Language in Informal Settlement Agreements and Compliance Settlement Agreements – to all NLRB regional directors, officers-in-charge and resident officers, acting GC Lafe Solomon has instructed that all settlement agreements—including both informal and compliance settlements—should include the following default language:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party /Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

The memo further instructs that if a complaint has not already been issued, regional directors should incorporate language stating a complaint will be filed and that by signing the agreement, the party waives any right to file an answer. If the compliance specification has not been issued in a compliance case, the memo states the default language should provide that the Regional Director will issue a compliance specification that lists all liquidated backpay or other remedial provisions and provides that signing the agreement constitutes a wavier of any right to file an answer.

According to Solomon, using default language in settlement agreements “is an effective and appropriate means to ensure that a charged party/respondent will comply with the affirmative provisions of the settlement agreement.” In practice, however, such language may put employers at a disadvantage in the event the union believes the employer is in violation of the settlement.

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign. This new Board initiative is consistent with the Board’s efforts to administratively implement substantive portions of EFCA previously discussed in this blog.

Specifically, in such “nip-in-the-bud” cases, local Board regions are directed to seek a notice-reading remedy when an employee discharge is involved, and are encouraged to do so when an employer is believed to have committed any serious Section 8(a)(1) violation. If the ULP is believed to have interfered with communications between employees, or between employees and a union, regions are also directed to seek union access to an employer’s bulletin boards as well as employee names and addresses. This initiative builds upon a program introduced in September designed to streamline and expedite the process of seeking section 10(j) preliminary injunctions from federal courts in cases involving employee discharges during organizing drives.

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A recent decision from the National Labor Relations Board (NLRB) points out yet again the importance of carefully reviewing the scope of no-solicitation polices and conducting thorough investigations of employee misconduct. 

In Satellite Services, Inc., 356 NLRB No. 17 (Slip op. October 29, 2010), the NLRB adopted the decision of the Administrative Law Judge (ALJ), who rejected the company’s claim that it had discharged an employee for three violations of company policy, and held that the real reason for discharge was the employee’s union activities.

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Labor law attorneys at Littler Mendelson have been predicting for months that the National Labor Relations Board, now dominated by Obama appointees, would take aim at employer policies that could be applied to restrict employees’ use of social media for purposes protected by the National Labor Relations Act.  In what appears to be the first shot in an approaching battle, the NLRB’s Office of General Counsel issued a press release on November 2, 2010, announcing that the Board’s Hartford Regional Office had filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated the NLRA by terminating an employee for posting negative comments about her supervisor on her Facebook page.

According to the Hartford Region’s complaint, AMR denied the employee’s request for union representation made after her supervisor asked her to prepare an investigative report concerning a customer complaint about her job performance.  Later that day, the employee, using her home computer, made negative comments about her supervisor on her Facebook page.  Coworkers who visited the page posted comments supportive of the employee and critical of the supervisor.

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