Employer Labor Relations Blog

Update on the Multiemployer Pension Reform Act of 2014

Posted in Current Events

On December 11th, over on our ERISA & Employee Benefits blog, Seyfarth labor partner Ron Kramer analyzed the proposed “Multiemployer Pension Reform Act of 2014” (“MPRA”).

We can now report that President Obama enacted this legislation on Tuesday, December 16th as part of the $1.1 trillion spending bill for 2015.

On January 14, 2015, Seyfarth ERISA litigation and benefits attorneys will provide an overview of the MPRA, and what it means for employers.

Click here to learn more and for a link to sign up for this important event. If you have any questions about the upcoming webinar, please contact events@seyfarth.com.

NLRB Makes Sweeping Changes to Arbitration Deferral Standards

Posted in Arbitration, Current Events, NLRB, Unfair Labor Practices

By: Bryan R. Bienias

On Monday of this week, the National Labor Relations Board (NLRB or Board) abandoned over 30 years of precedent and significantly modified the standards for the deferral of certain unfair labor practice charges to contractual arbitration procedures. This change likely will call into question the finality of arbitration awards in future cases involving allegations arising under Sections 8(a)(1) and (3) of the Act. (Notably, the Board did not address deferral in Section 8(a)(5) cases, since the General Counsel did not raise the issue.)

In Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014), the Board made sweeping changes to its longstanding post-arbitral deferral standards, through which it determines whether underlying unfair labor practice allegations have been addressed sufficiently by the arbitrator. If the Board determines that the arbitrator adequately addressed the unfair labor practice issues, the Board will defer to the arbitrator’s decision and not conduct an independent investigation.

Under the new standard, the burden of proof has shifted onto the party seeking deferral to show not only that that proceedings were “fair and regular” and the parties agreed to be bound, but also that (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue, (2) the arbitrator was presented with and considered the “statutory issue” or was prevented from doing so by the party opposing deferral, and (3) Board law “reasonably permits” the award.

The standard enunciated by the Board likely will pose many issues for parties seeking to avoid duplicative litigation and who believe that contractual arbitration is an efficient means of resolving their disputes.

First, the party seeking deferral now must show that the arbitrator was explicitly authorized to decide the unfair labor practice issue—either through incorporation of this authority into a collective bargaining agreement or through a case-by-case authorization. Employers and unions with existing contracts either will need to renegotiate their contracts to give arbitrators the authority to determine these “statutory issues,” or agree to grant this arbitral authority in each individual case. Where one party refuses, the Board stated that it “is not [its] province to hold them to a choice they have not made.”

Second, the Board held that a party can establish the arbitrator was “presented with and considered the statutory issue” if it can show that the “arbitrator identified the issue and at least generally explained why he or she finds that the facts presented either do or do not support the unfair labor practice issue.” While the Board claims that it will not require the arbitrator to “engage in a detailed exegesis of Board law” nor does it seek to “turn arbitrators into administrative law judges,” it offers little guidance as to how thorough an arbitrator’s analysis must be. If an arbitrator simply fails to adequately address an unfair labor practice issue, the party seeking deferral may be out of luck. This is problematic, as the Board acknowledges that arbitrators “may not be attorneys trained in labor law.”

Finally, the Board now will review each arbitration award to assure that Board law “reasonably permits the award.” The Board claims that it will not require arbitrators to reach the same result the Board would reach, but will require the arbitrator’s decision to constitute a “reasonable application of the statutory principles” that the Board would follow. The Board notes that it “will not simply assume . . . merely from the fact that an arbitrator [for example] upheld a discharge under a ‘just cause’ analysis, that the arbitrator understood the statutory issue and had considered (but found unpersuasive) evidence tending to show unlawful motive.” In essence, a party seeking deferral must be prepared to show that not only does Board law “reasonably permit” the arbitrator’s award, but that the arbitrator “understood the statutory issue” and considered whatever evidence that the Board ultimately determines did or did not tend to show unlawful conduct.

In reaching its decision, the Board dismissed concerns that the new standard would encourage unions to withhold evidence concerning unfair labor practice issues in arbitration proceedings in order to defeat deferral, noting that either party can raise the statutory issue before the arbitrator.  The Board also rejected Member Phillip Miscimarra’s concerns that new standard performs unwarranted “surgery” on “two venerable institutions—final and binding grievance arbitration and the collectively bargained requirement of “cause,” in contravention of federal policies and the language of the Act itself.

In sum, besides requiring that parties either renegotiate their contractual grievance procedures or explicitly authorize the arbitration of unfair labor practice issues in each case, this standard likely will encourage parties to circumvent their grievance procedure by filing unfair labor practice charges whenever they believe they have a better chance of a favorable resolution before the Board. Moreover, arbitration proceedings themselves likely will become much more burdensome, as parties and arbitrators expend more time and energy addressing underlying unfair labor practice issues in an effort to avoid duplicative litigation.

Although the Board states that the new standards will avoid placing an undue burden on unions, employers, arbitrators or the arbitration system itself, it remains to be seen how this will play out in practice.  Stay posted.

NLRB AGAIN APPROVES EXPEDITED ELECTION RULES

Posted in Collective Bargaining, Current Events, Elections, NLRB, Representation Cases

By:  Kenneth R. Dolin, Esq. &  David L.  Streck, Esq.

 Here we go again.  The National Labor Relations Board (“Board” or “NLRB”)  has adopted its expedited election rules that have been previously proposed twice and approved in part once, only to be ruled invalid by the United States District Court for the District of Columbia on procedural grounds.  The rule will be published in the Federal Register on December 15, 2014.  Absent another successful challenge, these rules will take effect on April 14, 2015 and will significantly shift the playing field and make it far easier for unions to organize employees.

The New Rules

The newly approved rules include the following changes to existing representation case procedures:

  • Shorter Time for Pre-Election Hearings.  Pre-election hearings will normally be set to open eight days from the date of service of the notice of hearing.
  • Employer Must Prepare and File a Position Statement to Identify Disputed Issues.  An employer will ordinarily be required to prepare and file a comprehensive “statement of position,” by noon on the business day preceding the date of the hearing.  In that position statement, the employer must identify any issues regarding the composition of the proposed bargaining unit, day, time and place of the election, and other election-related matters.  Any issues omitted by the employer from its statement are waived by the employer and may not be raised later.
  • Employer Must File a Preliminary List of Voters as Part of the Required Position Statement.  The employer must also provide a preliminary list of voters with names, work locations, shifts and job classifications in the proposed unit, but without contact information, to the petitioning union (and any other parties) and to the regional director.  If the employer contends that the proposed unit is inappropriate, the employer shall separately list the names, work locations, shifts and job classifications of all individuals, if any, that it contends must be added to or excluded from the proposed unit to make it an appropriate unit.
  • More Discretionary Authority to Regional Directors and Less Pre-Election Resolution of Disputes Concerning Unit Placement, Exclusions, and Eligibility.  The regional director will decide the issues to be litigated in each case.  The hearing officer may solicit offers of proof on any or all issues.  If the regional director determines that the evidence described in the offer of proof is insufficient to sustain the proponent’s position, the evidence shall not be received.
  • No Right to File a Post-Hearing Brief.  The regional director will have the authority to determine whether parties may file post-hearing briefs.
  • New Excelsior List Requirements.  Under the old rule, the union received an Excelsior list of eligible voters via the Board from the employer prior to the election containing the employees’ full names and residence addresses but not their email addresses and telephone numbers.  Under the new rules, an employer must file a preliminary list of voters as well as an Excelsior list.  The latter list must be sent directly to all parties, and must contain the employees’ available personal (non-business) email addresses and available telephone numbers (home and cell), work locations, shifts and job classifications.  The rules also require that the list be produced in electronic form unless the employer lacks the capacity to do so.
  • Earlier Submission of Excelsior List.  The Excelsior list will generally be required to be given to the petitioning union (and the other parties, if any) within two business days after the approval of an election agreement or the issuance of a Direction of Election rather than the seven calendar days previously allowed.
  • Earlier Elections.  Current language that requires an election normally be conducted between the 25th and 30th days after the direction of the election will be eliminated, and replaced by language requiring that elections be set “for the earliest date practicable,” thereby permitting elections to be held as early as only a few days after the Regional Director’s decision (assuming non-employer parties waive their right to have the Excelsior list at least 10 days before the date of the election).
  • No Right to NLRB Review of Post-Election Disputes.  A party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes will be eliminated.  NLRB review of post-election disputes will become discretionary.
  • Electronic Filing of Petitions and Other Documents Permitted.  Petitions and other documents will be permitted to be filed electronically rather than by hand or regular mail.

While the Board did not dictate any time frame for the conduct of an election, during the first round of proposed rulemaking then Member Brian Hayes indicated that the expedited election process would result in elections taking place between 10 and 21 days after the filing of a petition as contrasted with the current 38 to 45 day time frame.

Next Steps/Potential Challenges

More legal challenges to the new rules are anticipated and it appears likely that the Chamber of Commerce and the Coalition for a Democratic Workplace, among others, will again file suit.  Such challenges will likely seek a declaration that the rule is contrary to the National Labor Relations Act and the First and Fifth Amendments to the Constitution. 

 Consequences for Employers

The new rules shorten the time from petition to election to three weeks or less, creating, in the words of dissenting Board members Philip Miscimarra and Harry Johnson, a “vote now, understand later” scheme and “advocat[ing] a ‘cure’ that is not rationally related to the disease.” 

There can be no doubt that these new rules will significantly benefit unions and their organizers. Indeed, the shorter the election process (10-21 days vs. 38-45 days), the less time that an employer and employees will have to express or formulate their views about the pros and cons of unionization and to communicate facts regarding union representation.  For this reason, employers may wish to prepare certain draft communications in advance in the event a petition is ever filed.

The limited time to communicate with employees, however, is just one burden employers will face in opposing a union petition.  With the representation hearing normally opening within eight days from the service of the notice of hearing by the regional director, and a detailed position statement setting forth all of the employer’s positions as to the unit due no later than noon on the business day preceding the date of the hearing, an employer also will face difficulties in determining what position to take as to the appropriateness of a proposed unit as well as over which employee classifications should be included.  An employer that has not determined, in advance, what bargaining unit(s) it would consider appropriate at each of its locations and which employees should be included and excluded from those units likely will miss issues and arguments that can or should be raised at hearing.

An employer may also find that the persons best capable of relaying its message, front-line supervisors, are in limbo as to whether they are or are not excluded from the unit as statutory supervisors.  Such a situation could force an employer to operate during a campaign based on its best guess as to certain individuals’ supervisory status, a risky proposition.  For example, without the benefit of a stipulation or a finding on supervisory status, an employer that has purported supervisors assist in communicating the employer’s position in an election campaign runs the risk of election objections and unfair labor practice charges that will invalidate the election if the NLRB ultimately finds that the individuals are not statutory supervisors.  Likewise, an employer that fails to instruct employees, who are later found to be statutory supervisors, on the rules regarding lawful campaign communications and on the need to avoid attending union meetings runs the risk of election objections and unfair labor practice charges that will invalidate the election results. 

One particularly frustrating aspect of the new rules is that while the time period between a petition to an election has undoubtedly been shortened, the overall time frame for processing election cases to conclusion may not be significantly impacted.  The elimination of many of the pre-election procedures – particularly the opportunity to present evidence with respect to voter eligibility or inclusion – may ultimately result in more post-election litigation and adjudication.   

In light of the proposed rules, an employer is best advised — as always — to maintain positive employee relations to minimize the risk of a union organizing petition being filed.  Moreover, rather than wait until after a petition is filed, an employer may wish to prepare, well in advance, its position as to appropriate bargaining units and draft communications to employees on unionization.

NATIONAL LABOR RELATIONS BOARD NATIONALIZES EMPLOYER EMAIL SYSTEMS

Posted in Current Events, NLRB, Organizing

By:  Jeffrey A. Berman, Esq. & Nicholas R. Clements, Esq.

Until December 11, employers thought that they owned their email systems and so could limit their use to company business.  On that day, a divided National Labor Relations Board (“NLRB”)  ruled “not so.”  In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), the NLRB ruled that employees who have access to an  employer’s email system as part of their job generally may, during non-working time, use the email system to communicate about wages, hours, working conditions and union issues.  The NLRB reached this conclusion notwithstanding the fact that Purple Communications has a rule providing that its email system was to be used for “business purposes only.”  It is expected that the NLRB’s ruling will be challenged in the federal courts.

Specifically, the NLRB ruled that employees with access to company email can use company email systems for union organization and Section 7 protected activities.  The ruling overturned the NLRB’s 2007 decision in Guard Publishing v. NLRB, (571 F.3d 53 (D.C. Cir. 2009)) (“Register Guard”) which held, in relevant part, that employees have no statutory rights to use their employer’s email systems for labor organization purposes or discussions about wages or other workplace issues.  The Purple Communications ruling is the result of a case brought by the Communications Workers of America union (“the Union”) after it failed in its attempt to organize employees of a company that provides interpreting services for the deaf and hard of hearing.   The Company, for its part, had an “Internet, Intranet, Voicemail, and Electronic Communication Policy” that allowed the use of company owned electronic equipment and systems, including its email system, for “business purposes only.”  The Company claimed that its “business purposes only” restrictions for company email use were aimed at reducing workplace distraction.  The Union argued, on the contrary, that the Company’s prohibition of its employees’ use of company email for non-business purposes and on behalf of organizations not associated with the company interfered with the Company’s employees’ Section 7 rights. 

As anticipated, the NLRB sided 3-2 with the Union; the three Democratic appointees voting in favor of what many will view as an unprecedented taking of private, employer property. The two Republican appointees filed vigorous dissents.   The NLRB held that Section 7 statutorily protected communications (e.g., communications about labor organizations, wages or other workplace issues) between employees on nonworking time must be permitted by employers that have chosen to provide employees email accounts hosted on the employer’s email servers.  In the ruling, the NLRB stated that Register Guard initially got the issue wrong because it undervalued employees’ Section 7 rights and placed too much emphasis on employers’ property rights.  Additionally, the majority opined, Register Guard incorrectly analogized company email to company-related equipment (e.g., bulletin boards, copy machines, public address systems, etc.).  The NLRB previously determined in an unrelated case that employers could place restrictions on company-related equipment, given its physical size and content limitations.  But, for purposes of the current case, the NLRB concluded that this analogy “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications.”  Moreover, the majority noted that since Register Guard was decided seven years ago, the importance of email as a means for communication has only increased, further intensifying the error of the Register Guard decision. 

The Purple Communications ruling, of course, turns Register Guard, on its head.  However, the NLRB attempted to make its ruling seem more palatable by proffering several caveats in its general repudiation of Register Guard.  First, the Purple Communication ruling applies only to employees who already have been granted access to an employer’s email system in the course of their work.  Accordingly, the ruling does not require employers to provide employees access to the employer’s email system in the first place.  Second, employers can still ban all non-work-related use of email — including Section 7 email use on nonworking time — if the employers can demonstrate that special circumstances make the ban necessary to maintain “production or discipline.”  Additionally, absent justification for a total ban of non-work related email on non-working time, employers may still limit employees’ use of the employer’s email system as long as the limitations are applied uniformly and are necessary to maintain “production and discipline.”  Unfortunately, the NLRB stated that the circumstances in which a ban would be justifiable would be “rare.” 

In a further effort to attempt to placate the anticipated employer reaction to the decision, the majority also stated that its ruling did not apply to non-employees, and that employers could lawfully monitor employee email use as long as doing so fell within the ordinary scope of its email system monitoring polices. This effectively means that employers may not increase its monitoring during a labor “organizational campaign” or “focus its monitoring efforts on protected conduct or union activists” or otherwise enhance their monitoring efforts to stymie protected activity.  But, employers may continue to tell their employees that it monitors, or at least reserves the right to monitor, computer and email use for legitimate business reasons.  Further, the ruling does not change the general rule that employees have no expectation of privacy when they utilize their employer’s email systems.  Thus, even though employees’ use of their employer’s email systems for Section 7 purposes is now protected, employers can still monitor their employees’ use of the email system and also advise employees’ that they are doing just that. 

Finally, regardless of the far reaching impact of its decision, the NLRB did note that its Purple Communications decision would not prevent an employer from establishing uniform and consistently enforced restrictions.  These restrictions could include, for example, prohibitions on large attachments or audio/ video segments, if the employer could demonstrate that, left unregulated, the employee actions would interfere with the email system’s efficient functioning.

The upshot of the Purple Communications ruling is that employers should review their email system policies.  In some cases, employers may want to eliminate email system usage by employees whose jobs do not require the use of email.  Otherwise, employers need to ensure they apply their email system policies, including monitoring, uniformly and consistently.  Finally, it never hurts to very clearly remind employees that they have no expectation of privacy when they use company email systems — even if they are engaging in Section 7 protected activities.

While some employers may modify their rules that the email system is to be used for business purposes only to read that “With the exception of communications regarding wages, hours, working conditions and union, our email system may be used only for business purposes,” other employers may wait to see if the federal appellate courts embrace this departure from decades of NLRB and judicial precedent.

ALERT: COMPREHENSIVE MULTIEMPLOYER PENSION REFORM IN PLAY

Posted in Current Events

Over on our ERISA & Employee Benefits blog, Seyfarth labor partner Ron Kramer analyzes here the proposed “Multiemployer Pension Reform Act of 2014” (“MPRA”).   The MPRA could have a significant impact on multi-employer pension plans.

The NLRB’s Alan Ritchey Decision is Alive, Well, and Still Dangerous

Posted in Collective Bargaining, NLRB, Unfair Labor Practices

By: Ronald J. Kramer

While Alan Ritchey Inc., 359 NLRB No. 40 (2012), became “non-binding” as a result of the Noel Canning decision, its holding is alive and well with the Board and the General Counsel’s Office. In a recently released Advice Memorandum, the General Counsel’s Office took the position that “Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”  Washington River Protection Solutions, Case 19-CA-125339 (Div. Advice Oct. 14, 2014), released Nov. 18, 2014.

This alone is not earth shattering news, given that the General Counsel was a member of the Board when Alan Ritchey issued. In Alan Ritchey, the Board decided that newly organized employers normally cannot discipline employees without first notifying the union and bargaining over the decision. Although a few exceptions to the obligation to bargain before issuing the discipline (minor discipline, exigent circumstances) may exist and impasse need not be reached in negotiations before implementing discipline, an employer cannot act unilaterally and negotiations to agreement or impasse must follow. We reviewed this decision in a previous blog post.

Nor was the decision in Washington River Protection Solutions arguably that surprising. There, during the hiatus between contracts, the employer discharged an employee for misconduct in accordance with the disciplinary policy it had instituted under the contract before it expired, which gave the employer the right to implement work rules and discipline for just cause. The employer also refused to arbitrate because the discharge occurred after contract expiration. The Office of the General Counsel found that “it would not be appropriate to apply the Alan Ritchey pre-discretionary discipline bargaining obligation rationale here because the parties were operating under a discipline system that resulted from collective bargaining and there is no evidence that the Employer made any unilateral change to that discretionary discipline system or to the parties’ grievance-arbitration procedure.”

But what is disturbing is a reference in Washington River Protection Solutions to what appears to be an unpublished Advice Memorandum: Arlington Metals Corp., Case 13-CA-119045 (Div. Advice May 20, 2014). In Arlington Metals, the General Counsel’s Office apparently found that an employer that “lawfully implements a disciplinary system after impasse but refuses to arbitrate a grievance regarding discipline imposed pursuant to that system” on the basis that the parties lack a binding grievance-arbitration provision thereby commits an unfair labor practice. Apparently, the unilateral implementation of terms and conditions of employment “do not satisfy Alan Ritchey’s requirement of a ‘binding agreement’ to resolve disputes.” Such an employer remains obligated to bargain over discipline despite having implemented a disciplinary system.

It is difficult, especially without access to the opinion, to see how Arlington Metals can be reconciled with an Advice Memorandum issued just a month before Alan Ritchey, in which the General Counsel’s Office determined that an employer did not commit an unfair labor practice by lawfully implementing the “for cause” discipline portion of its management rights article upon reach impasse without implementing the grievance/arbitration procedure that would permit the union to test the employer’s “for cause” determinations. Anchorage Hilton, Case 19-CA-078070 (Div. Advice Nov. 15, 2012). While that case focused on whether the phrase “for cause” was so discretionary that it could not be implemented upon impasse, the charge was filed after the employer had relied upon that implemented language to discipline employees. Moreover, one would think, given that the General Counsel must have been aware of Alan Ritchey’s imminent issuance when Anchorage Hilton was issued, it was intended to be applicable even after Alan Ritchey was issued.

How is an employer to reconcile Alan Ritchey, Washington River Protection Solutions, Arlington Metals, and Anchorage Hilton?

1.         An employer negotiating for a first contract should follow Alan Ritchey until a contract is reached (or until the Board or a court reverses Alan Ritchey’s holdings).

2.         An employer implementing a last, best, and final offer for a new bargaining unit must continue to bargain discipline in accordance with Arlington Metals even if it has implemented a just cause discipline provision since the discipline was not issued pursuant to a “binding agreement.”

3.         During the pendency of bargaining a new contract after an old contract has expired, an employer may continue to discipline employees in accordance with the expired contract and existing disciplinary policies and practices without bargaining pursuant to Washington River Protection Solutions.

4.         Should an employer implement a last, best, and final offer during successor contract negotiations, it should hope it does not have to discipline anyone. An argument can be made, especially if the discipline provisions of the implemented contract did not change, that pursuant to Washington River Protection Solutions discipline is still being imposed under what at least was once a “binding agreement,” and pursuant to Anchorage Hilton an employer can implement just cause discipline upon impasse. It is possible, however, that Arlington Metals involved a successor contract instead of an initial contract. In such a case, an employer would be running a risk by failing to “bargain” over discipline once the successor contract was implemented.

In short, Arlington Metals (at least as it is described in Washington River Protection Solutions) makes no sense. That an employer could implement a proposal on discipline but must still bargain seems contrary to traditional principles of labor law—unless the General Counsel is backing away from Anchorage Hilton by claiming that “for cause” discipline is too discretionary to permit an employer to implement. But if that were true, then the right to discipline under the contract in Washington River Protection Solutions would have expired when the contract expired — no different than any other discretionary management right.

Time will tell where the Board eventually falls on these issues—assuming Alan Ritchey’s findings are even valid law. In the meantime, employer beware.

Ninth Circuit Finds Mall Owner’s State Trespass and Nuisance Claims Not Preempted in a Secondary Boycott Context – A Circuit Split on Preemption

Posted in Current Events, Picketing, Protected Concerted Activity

  By: Sarah K. Hamilton, Esq. & Alison Loomis, Esq.

In a recent case of note, the Ninth Circuit held that federal labor laws did not preempt a shopping mall owner’s state law claims for trespass and nuisance against a union that was picketing a store in the mall.  See Retail Property Trust v. United Brotherhood of Carpenters, No. 12-56427 (9th Cir. September 23, 2014). 

The owner of a California shopping mall brought state trespass and nuisance claims against a union that protested in front of an Urban Outfitters store for its hiring of non-union subcontractors.  During the picketing, the union chanted loudly, blew whistles, hit and kicked a construction barricade, and banged picket signs against mall railings.  The mall responded by filing a lawsuit seeking declaratory and injunctive relief in state court.   The union removed the case to federal court on the grounds that the state law claims were preempted by federal law and stated a federal cause of action. 

Citing to a Seventh Circuit decision which held that, generally, claims involving secondary boycotts (i.e.  union action in support of a strike initiated by workers in a separate company) were “completely” preempted by LMRA Section 303, the District Court found that the mall owner’s trespass and nuisance claims were preempted by federal labor laws.   Based on the District Court’s preemption finding, the court dismissed the mall owner’s claims.

The Ninth Circuit reversed the lower court’s dismissal, finding that the alleged property-based torts of trespass and nuisance only incidentally involved union conduct, and therefore, were not preempted by federal labor laws.  For example, the mall owner did not seek to punish or prevent labor conduct; rather, it merely sought to stop conduct which violated its time, place, and manner rules. 

In its opinion, the court provides a comprehensive background of preemption, including discussion of the distinction between “complete” versus “defensive” preemption and the three types of defensive preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption.  The Ninth Circuit noted that courts commonly use these terms inconsistently, and at times, incorrectly.  To read the Ninth Circuit’s thorough discussion of preemption analysis, see the court’s decision here.

The Ninth Circuit addressed the Seventh Circuit’s prior finding that state law claims involving secondary boycotts are  “completely” preempted (relied on by the District Court), stating that its sister circuit was “simply wrong.” Instead, the Ninth Circuit focused on the fact that trespass and nuisance are labor-neutral torts, with non-economic interests, and that regulation of this conduct is “deeply rooted in local feeling and responsibility.”  Here, per the Court, the mall owner was not trying to prevent or punish union activity; but rather, to prevent conduct that violates time, place, and manner restrictions. As such, the Ninth Circuit found that the conduct involved was only a peripheral concern of federal labor law.

The creation of a circuit split does nothing to clear the muddy waters of preemption.  That said, this case helps to provide a guide of labor preemption doctrines, as applicable in the Ninth Circuit. 

In addition, the case provides some positive recourse for employers facing a secondary boycott disrupting the workplace. Where an employer has content-neutral time, place, and manner restrictions in place, a civil action may be a possible remedy to explore.

Employees Finally “Face[book]” the Music for “Insubordinate” Posts

Posted in Concerted Activity, Current Events, NLRB

By: Paul Galligan and Howard M. Wexler

In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014) (“Richmond”) the National Labor Relations Board (“Board”) affirmed an ALJ’s decision (previously discussed here) finding that the “insubordinate” and “egregious” Facebook comments of two employees went too far and thus lost protection of the Act, justifying their termination. The Board’s decision in Richmond came just weeks after it ruled in Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the Act.

Richmond and Triple Play provide the best guidance from the Board so far as to where the boundaries are concerning “protected” employee speech about the employer in social media. The Board’s decision in Triple Play told employers that the appropriate standard to determine whether employees’ statements on social media have lost the protection of the Act was whether the communication was disloyal, reckless or maliciously untrue, applying the Supreme Court’s disloyalty standard from NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and the Court’s defamation standard from Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). Richmond adds insubordination (objectively analyzed, of course) into the mix of unprotected communications.

The Decision

In Richmond, two employees had a profanity-laced conversation via Facebook regarding their employer—a non-profit corporation that provides youth, adult, and family programs that address critical community needs in San Francisco. The employees at Richmond were not represented by any union. The Facebook communications considered insubordinate included: “Let’s do some cool sh*t, and let them figure out the money”; “field trips all the time to wherever the f*** we want!”; “teach kids how to graffiti up the walls”; “when they start loosn kids I aint helping . . .let’s f*** it up.”

Upon receiving a screenshot of this conversation, provided to management by another employee, the Company terminated both employees, citing concerns based on their Facebook conversation that the employees would refuse to follow the directions of management.

The employees alleged that their termination violated the Act because their Facebook conversation constituted protected concerted activity. In a Decision issued on November 5, 2013, ALJ Jay R. Pollack agreed that the two employees were engaged in concerted activity given that the crux of their Facebook conversation revolved around “their disagreement with management’s running of the teen center. However, the ALJ held that the comments were so egregious as to take it outside the protection of the Act, and thus the employer’s decision to rescind their job offers was lawful.

The Board agreed with the ALJ that the speech lost the protection of the Act because of its egregious nature. However, the Board disagreed with the method in which the ALJ arrived at his decision. The Board held that the correct standard for determining whether the speech lost the protection of the Act is an objective standard, and not merely whether the employer subjectively believed these employees planned on following through with their threats of insubordination. However, given the nature of these comments, the Board held that even under the more stringent objective standard, the comments set forth a “wide variety of planned insubordination in specific detail” and therefore rose to such a magnitude that even a reasonable [objective] employer would be concerned and not take the risk of continuing to employ these individuals. It should be noted that the Board distinguished these comments from those “brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation.” The Board also did not rely on the employees’ use of profanity.

Significance For Employers

In language that should be added to employers’ defense toolkits, the Board then held that the employer “was not obliged to wait for the employees to follow through on the misconduct they advocated.” Given that an employee’s typical first line of defense when confronted with their inappropriate social media comments is that they were just “venting” and never really intended on following through with the threats, this language is a welcome ruling for employers who do not have to sit back and actually wait for an employee to act on their contemplated insubordination.

Richmond drives home the fact that not every social media post is protected by the Act. Where, as here, an employee makes a statement that is so egregious as to cause harm to the employer’s business or is of such character as to render the employee unfit for further service, employers are allowed to take corrective action, up to and including termination. That being said, employers should still tread lightly given that the Board remains on “high alert” regarding all things relating to social media. Using the objective standard means the Board, not the employer, will ultimately decide if it is insubordination.

NLRB and EEOC Leaders Caution Against Looking at Employment Applicants’ Social Media Activity

Posted in Concerted Activity, Current Events, Unfair Labor Practices

By:  Ashley K. Laken, Esq.

 On Wednesday, November 12, 2014, NLRB General Counsel Richard Griffin, NLRB Board Member Harry Johnson, and EEOC Commissioner Chai Feldblum participated in a panel discussion that touched upon employers’ use of social media during the hiring process.  Their remarks highlighted the need for employers to be cautious about looking at potential hires’ social media profiles and posts.

 The panelists explained that while hiring managers can look at applicants’ personal details or opinions that are posted online, they cannot use those details or opinions when making hiring decisions.  Easy enough right?

 Well, that’s where the peril lies.  Take this for an example.  Sally applies for a job at Factory X, which is non-union.  Bob, the hiring manager at Factory X, takes a look at Sally’s Facebook profile before he interviews Sally for the job.  Sally’s profile, which is public, indicates that she is both an avid union supporter and a bird watcher.  During the interview, Bob mentions that he saw on Sally’s Facebook profile that she’s a bird watcher, and that he loves watching birds too.  Bob ultimately decides not to hire Sally because he doesn’t think she has enough experience for the position.  Sally files an unfair labor practice charge with the NLRB, alleging that the reason she wasn’t hired for the job is because she’s a union supporter.  Factory X may have a difficult time proving that Sally’s union support didn’t have anything to do with her not getting the job.

 Indeed, during the panel, Griffin explained that “The issue is obviously going to be whether the person who didn’t get the job . . . suspects the reason he didn’t get the job [was because he was pro-union] and files [a] charge.”

 What if Bob had instead asked another manager to search Sally’s social media presence and “sanitize” the information (i.e., not tell him anything about whether or not Sally is a union supporter) before providing it to him?  Member Johnson addressed this hypothetical during the panel, explaining that the standard for allowing knowledge to be imputed among different supervisors is very liberal under current interpretations of the National Labor Relations Act, meaning that if management were to do that, it would have to make sure that the process is “very hermetically sealed.”

 The panelists also noted that employers must be cautious in monitoring current employees’ social media activity and their reactions to it.  Griffin observed that “very few people engage in protected and concerted activity about the terms and conditions of their employment in order to praise them,” that criticism and dissatisfaction are “grist for the mill” of the NLRA, and that if an employer takes the position that employees can’t be critical, the employer is “going to run afoul of people’s right to be critical.” 

 The moral of the story: employers should tread lightly when considering whether to take a look at applicants’ or employees’ social media activity, and even more lightly when considering whether to act on it.

Indiana Supreme Court Upholds Right to Work Act

Posted in Current Events, Organizing, State Law

By: Marc R. Jacobs

On November 6, 2014, the Indiana Supreme Court reversed the ruling of a superior court judge and held that the Indiana Right to Work Law does not violate the Indiana Constitution. Zoeller v. Sweeney, Case No. 45S00-1309-PL-596 (2014) (“Sweeney”).

The Indiana state law challenge decided in Sweeney raised a novel issue under the Indiana Constitution. Section 21 of the Indiana Bill of Rights, Article I of the Indiana Constitution, states in part: “No person’s particular services shall be demanded without just compensation.” The plaintiff union argued that because federal labor law requires a union with an exclusive bargaining relationship with the employer to represent the interests of all employees in the bargaining unit regardless of union membership, the law is a demand on the union to provide services without compensation. The lower court agreed and held that the Act violated Section 21.

The Indiana Supreme Court rejected the union’s claim, reversed the lower court decision, and held that the Act was constitutional. The Court ruled that the Indiana Constitution only limits “state, not federal, power.” As we reported on September 4, 2014, the U.S. Court of Appeals for the Seventh Circuit upheld the Act against federal law challenges in Sweeney v. Pence, Case No. 13-1264 (7th Cir. 2014). Borrowing from the Seventh Circuit’s decision, the Indiana Supreme Court determined that federal law and not Indiana state law provides the duty to represent all employees in the bargaining unit. As a result, the Court concluded that the Act did not violate Section 21 because “Article 21 requires just compensation when the state demands particular services, not when the federal government does so.”

In a statement after the ruling, Indiana Governor Mike Pence state: “Today’s unanimous decision by the Indiana Supreme Court upholding Indiana’s right to work law is a victory for the freedom of every Hoosier in the workplace. By this ruling, our Court reaffirmed Indiana law that no Hoosier may be compelled to join a union as a condition of their employment but every Hoosier is free to join a union if they choose.”

Although you might think that the unanimous decision of the Indiana Supreme Court in Sweeney should put to rest the validity of Indiana’s Right to Work Law, legal challenges remain pending. First, the federal court challenge to the Act (mentioned above) continues because the plaintiff union filed a request that the entire Seventh Circuit re-hear the case en banc. Briefs related to that request have been filed (the most recent filing was on October 30). Second, another case brought by a different union is pending before the Indiana Supreme Court. Zoeller v. United Steel, Paper, Forestry, Rubber, Manufacturing, Allied Industrial and Service Workers International Union, AFL-CIO, Case No. 45S00-1407-PL-00492. In this second state court case, a different Indiana superior court judge also determined that the Act violated Section 21 of the Indiana Constitution. Given the ruling by the Indiana Supreme Court in the Sweeney case, it is reasonable to expect that the second state law case will be dismissed in the near future.