Employer Labor Relations Blog

NLRB Reverses ALJ, Orders Deferral of Charge Against Union to Arbitration

By Seyfarth Shaw LLP on Posted in Arbitration, Collective Bargaining, NLRB

By Christopher Busey

In Sheet Metal Workers International Association Local 18, 359 NLRB No. 121, the NLRB held that an employer’s unfair labor practice charge against a union should have been deferred to the grievance-arbitration procedure of the parties’ collective bargaining agreement. The result will come as somewhat of a surprise to those who have watched the Board and Acting General Counsel shrink the basis for Collyer deferral over the last few years. 

The employer, Everbrite LLC, filed a charge alleging the union’s refusal to bargain over a successor agreement in violation of Section 8(b)(3) of the Act. The agreement between the parties provided that the terms of the existing agreement would continue unless either side notified the other of its intent to bargain. The union claimed that the 2009 agreement should be extended for another year, while Everbrite argued that it alerted the local of its intent to bargain over a new contract. 

The administrative law judge ruled on the merits of the charge and dismissed the union’s argument that it should have been deferred to arbitration under the existing contract. The judge reasoned that since the issue had been heard on its merits any deferral would cause undue delay.  Second, the union’s untimely argument on deferral — five days before the hearing — was further evidence that the union simply sought to delay the outcome of the proceedings. Finally, deferral was improper because the union’s conduct “constitute[d] a rejection of the principles of collective bargaining.”

The Board rejected all of the ALJ’s reasons for refusing to defer the charge to arbitration. The delay from raising the issue of deferral was outweighed by a party’s right to raise an affirmative defense at any time, including at the hearing. The union also did not reject principles of collective bargaining. Instead, according to the Board, the union actually argued that the current agreement should remain in effect. Finally, the Board noted that the ALJ erred in addressing the merits of the charge before deciding on the threshold issue of deferral. Rather, the ALJ should have applied the well-established conditions for deferral:

[T]he parties’ dispute arises within the confines of a long and productive collective-bargaining relationship; there is no claim of animosity to employees’ exercise of Section 7 rights; the parties’ agreement provides for arbitration in a broad range of disputes; the parties’ arbitration clause clearly encompasses the dispute at issue; the party seeking deferral has asserted its willingness to utilize arbitration to resolve the dispute; and the dispute is well suited to resolution by arbitration.

Those conditions, laid out in decisions such as United Technologies Corp., 268 NLRB 557 (1984) and Collyer Insulated Wire, 192 NLRB 837 (1971), remain the standard for questions of deferral. The Board found that all of the conditions were satisfied here.

The silver lining of this case for employers is that the Board has reaffirmed that the question of Collyer deferral must be decided before proceeding to the merits of an unfair labor practice charge. Given the recent history of the Regions (and the Acting General Counsel) on this subject, however, we remain skeptical that this will lead to a more robust practice of deferral.

UNIONIZED EMPLOYERS NEED TO ADDRESS 2014 AFFORDABLE CARE ACT CHANGES

By Seyfarth Shaw LLP on Posted in Current Events

By:  Ronald J. Kramer, Esq.

Unionized employers have been the last to face the music regarding the Affordable Care Act (“ACA”).  Some employers admit they assumed last year’s election would resolve the issue.  Others await more guidance from the government, especially as to multiemployer health plans.  Still others inexplicably are not taking their unionized workforces into consideration as they work on compliance strategies.  Even today, just months before the 2014 changes, labor relations personnel are negotiating open contracts without first checking to determine what needs to be done to ensure ACA compliance.

Unionized employers need to confirm that their proverbial houses are in order and, if not, work to get them squared away well before the end of the year — if not before open enrollment.  Bargaining may be involved, which can take time — and employers must now give at least 60 days’ notice before making material mid-year modifications to their plans.  Unfortunately, there is no one size fits all answer as to what to do, for every contract and benefit situation is different.  But there are some common points unionized employers need to keep in mind:

First, regardless of what your contracts say, what is your ACA compliance strategy?  Do you want to provide insurance that complies with the Act, not provide any insurance, or provide coverage that is unaffordable?  All of these alternatives may be viable options.  Providing “no” coverage will result in the $2,000 annual penalty per employee company-wide, less the first 30 employees in the event a single employee obtains subsidized coverage on an insurance exchange.  Providing “unaffordable” coverage will only result in an annual penalty of $3,000 for each employee who obtains subsidized insurance from the exchange.  In certain circumstances, given the subsidies available to employees whose household incomes are less than 400% of the poverty level ($92,200 for a family of 4), both employees and the employer may be financially better off if coverage is unaffordable or otherwise not provided.  Because the penalty will be assessed to the individual corporate entity, different related corporate subsidiaries can make different decisions without necessarily affecting the rest of the organization.  How the employer answers this question will drive how it wants to proceed with its union contracts.

Second, assuming the employer wants to provide coverage, do your collective bargaining agreements provide minimal affordable coverage?  In other words, does the employee have to pay no more than 9.5% of his or her household income for single coverage, and does the plan cover at least 60% of the actuarial value of health costs?   If not, the employer will be looking at penalties unless it changes its plan — an action that may require bargaining.

Third, do your labor contracts provide for medical plan eligibility for all “full-time employees,” which the ACA defines as employees working an average of 30 hours or more per week?  If the contract only provides coverage to employees who work, for example, 35 or more hours per week, the employer could potentially be on the hook for an employer penalty. Contracts that contain waiting periods of greater than 90 days for full time employees will expose employers to potential penalties as well.

Fourth, contracts that have negotiated insurance terms that do not comply with the ACA’s 2014 changes (e.g., ban on annual limits, no preexisting condition exclusions, etc.), or do not offer coverage at all also need to be addressed.  Not only will these provisions need to be modified, but the required changes could impact the cost of this coverage.

Fifth, while the Cadillac tax does not kick in until 2018, no employer wants to be in the middle of a contract or facing negotiations for a collective bargaining agreement expiring in 2017 with insurance coverage that could result in the Cadillac tax.  The time to negotiate plan changes to prevent the Cadillac tax from taking effect, and learn whether your multiemployer funds are projected to be subject to the tax, is when contracts are open now.

Sixth, employers in multiemployer plans need to ensure both that their labor contracts do not create any ACA issues, and that the funds themselves are or will be compliant with the ACA.  Recent guidance has provided transition relief for multiemployer plans themselves for 2014 — but only for 2014.  Click here to see an alert on the guidance.  But collectively bargained waiting periods of greater than 90 days and collectively bargained restrictions on employees who average 30 but less than 40 hours of work per week are still problematic under the new ACA rules and must be addressed.

These six issues are merely the tip of the iceberg.  There is a lot to be done, and little time in which to do it.  Each employer’s answers and negotiated solutions will differ.  Seyfarth Shaw’s labor and employee benefits attorneys have been working with employers on the ACA and union contract issues to tailor solutions to fit their particular needs.  Contact your favorite Seyfarth Shaw attorney or the author for assistance in these matters.

Third Circuit Declares Invalid Craig Becker’s Recess Appointment to the NLRB

By Seyfarth Shaw LLP on Posted in Appointments, Current Events, NLRB

By:  Joshua M. Henderson, Esq.

Today, the Third Circuit Court of Appeals in Philadelphia set aside an order of the NLRB on the grounds that one of the members (Craig Becker) of a three-member panel that issued the order was not validly appointed to the Board. By a 2-1 vote, the Court of Appeals held in NLRB v. New Vista Nursing & Rehabilitation, that Becker’s intrasession appointment by President Obama in 2010 violated the Constitution’s “Recess Appointments Clause.”  The Third Circuit thus joins the D.C. Circuit in invalidating a recess appointment to the NLRB.  Taken together, these decisions effectively invalidate four recent appointments to the Board (Block, Becker, Flynn, Griffin). By ruling that Member Becker’s appointment was invalid, the Third Circuit’s decision expands the scope of controversial Board case law (including D.R. Horton, among others) that may be challenged on the grounds that it was not issued by a panel of three properly appointed members.

Although, like the D.C. Circuit in Noel Canning, the Third Circuit canvassed the historical record to aid its interpretation, the Third Circuit majority ultimately differed with the D.C. Circuit’s reasoning for declaring intrasession appointments unconstitutional. In contrast to the D.C. Circuit, the Third Circuit did not find the use of the definite article “the” in the phrase “the Recess of the Senate” to conclusively support intersession recess appointments. Rather, among other arguments, the Third Circuit construed the recess appointment power as an exception to the related (but separate) “Appointments Clause” of the Constitution, which enshrines power-sharing that includes the advice-and-consent power of the Senate. The Third Circuit rejected the Board’s “unavailable-for-business” definition of “recess.” That definition would be met by the Senate “whenever its members leave for the weekend, go home for the evening, or even take a break for lunch.” (Opinion, p. 64) It also would destroy the separation of powers.

The Third Circuit majority also rebuffed the argument that it was deciding a “political question” and somehow denigrating the president: “Defining recess in the Recess Appointments Clause does not express a lack of respect for coordinate branches of government because defining the word is merely an exercise of our judicial authority ‘to say what the law is,’ which sometimes requires an evaluation of whether one branch is aggrandizing its power at another‘s expense.” (Opinion, p. 24 n.5)

That New Vista Nursing & Rehabilitation was issued on the same day that the Senate begins confirmation hearings on a package of NLRB nominations (including two that were found to be unconstitutionally appointed in Noel Canning) is fortuitous. But it does raise the stakes of those hearings. And the stage is now set for what seems to be an inevitable review by the United States Supreme Court. The Board has urged the high Court to consider and reverse the D.C. Circuit’s Noel Canning decision. Now, the Third Circuit’s divided opinion in New Vista Nursing & Rehabilitation, with Circuit Judge Greenaway, Jr. (and Obama nominee) in dissent, will only increase the pressure on the Supreme Court to resolve the constitutional questions raised by these cases. Until then, the Board appears to be determined to continue to operate, though its legitimacy as currently constituted is in serious doubt.

Employer on the Hook for Manager’s Assault of Union Representative

By Seyfarth Shaw LLP on Posted in Concerted Activity, NLRB, Unfair Labor Practices

By Sarah K. Hamilton, Esq.

In Norquay Construction, Inc., 359 NLRB No. 93 (2013), the Board recently held that an employer violated Section 8(a)(1) of the National Labor Relations Act when a project manager employed by the non-union company physical assaulted a union representative in response to his Section 7 protected activity. Notably, the Board ordered that if, in compliance proceedings, the union can show that its representative incurred medical expenses and lost pay and benefits as a result of the assault, then he should be reimbursed for such expenses and made whole for loss of pay and benefits.

In this case, Thomas DeMott was a union employee and representative for the union representing a subcontractor working on a construction jobsite. The employer was a non-union general contractor for the project and its project manager maintained an office in a trailer at the jobsite. After experiencing significant disruptions by individuals entering the trailer without an appointment, the project manager posted a sign prohibiting solicitation without an appointment.

On the day at issue, the union representatives approached the project manager’s office without making an appointment to discuss whether “area standards” were being observed. Rather than decline to meet with them, the project manager motioned them into the office. The union representatives proceeded to ask for subcontracting information on some of the carpentry-related work. In response, the project manager told them to look up the information from a publicly-available source, complained about union representatives routinely coming to his office, and told them to leave. A heated discussion ensued, during which Respondent’s project manager physically pushed one of the union representatives out of the office, causing bodily injury.

The Board rejected the employer’s defense that the company maintained an exclusionary property interest in the trailer, noting that the union representatives were in the process of leaving the property at the time of incident. Accordingly, the Board found that the physical assault of the union representative in response to his protected activity violated Section 8(a)(1), and awarded tort-like damages to the union representative.

And The Hits Keep Coming: The NLRB Continues To Make Inroads Into Social Media

By Seyfarth Shaw LLP on Posted in Current Events, NLRB, Protected Concerted Activity, Unfair Labor Practices

By Howard Wexler, Esq.

As recently reported on this blog here, here, and here, the NLRB has aggressively been trying to regulate the workplace implications of social media in both union and non-union workplaces alike. The NLRB’s recent decision in New York Party Shuttle, LLC, 359 NLRB No. 112 (May 2, 2013) is no exception and demonstrates that the NLRB is continuing its efforts towards “educating” employers that negative comments by employees on Facebook and other social media sites, which relate to the employees’ workplace, treatment and management, are protected activity and taking action against an employee for those comments can result in an unfair labor practice charge and liability.

Factual Background

The Charging Party, Fred Pflantzer, worked as a tour bus driver in New York City for a company called OnBoard Tours (“OnBoard”). Tour guides notified OnBoard each Thursday about their availability to work the following week, and their schedule was then set over the weekend. After several weeks on the job, Pflantzer, who previously worked for a unionized tour bus company called CitySights, started talking to some of his fellow drivers at OnBoard about the possibility of forming a union. Some of the employees that Pflantzer approached complained to OnBoard that he was “bothering them about getting a union.” After the holiday season OnBoard stopped putting Pflantzer on the schedule. This change resulted in his: (1) posting a message on Facebook on a site called NYC Tour Guides, which is a closed site accessible only to New York City tour guides who have been invited to the site; and (2) sending an e-mail to his former co-workers at CitySights on February 11, 2012. In sum and substance, the information contained in the Facebook post and e-mail were essentially the same and stated in relevant part:

Believe it or not CitySights is a worker’s paradise compared to OnBoard! At OnBoard you will receive no health insurance, sick days, vacation days or one single benefit. You will ride around on unsafe buses, without the benefit of a PA system, or sometimes even a seat.

There is no union to protect you; you are subject to arbitrary disciplinary actions and out-right dismissal without recourse. If the company were to be sold, which is what I believe will happen [sic] there is no successor clause to protect your jobs.

***

Needless to say, I started to agitate for a union. Guess what happened, I stopped being called for work. I disappeared off the work sheet, not fired outright, but in effect kicked to the curb.

***

As you all well know, we have a right to organize in this country, a right protected by the US Government.

I am currently at the NLRB brining charges against this dysfunctional company.

So before you jump ship, talk to me.  I’ll be glad to fill you in on all the gory details.

The Board’s Decision

The NLRB affirmed the decision of Administrative Law Judge Raymond P. Green who held that OnBoard terminated Pflantzer in violation of Section 8(a)(3) and (1) of the NLRA when it failed to give him any tour guide assignments after he publicized his union organizational activities and criticized OnBoard in an e-mail and Facebook posting. The NLRB held that Pflantzer’s statements, even if not directed to his co-workers at OnBoard, nonetheless constituted union activity as they were an “obvious continuation of Pflantzer’s prior organizational activity, which was known to the Respondent [OnBoard].” That activity included an e-mail to OnBoard’s tour guides that was similar to the February 11th e-mail and Facebook message. While admitting that its decision to stop giving Pflantzer assignments would not have been made “but for” this Facebook post and e-mail, OnBoard argued that his statements exceeded the grounds of protected speech as they were libelous and “impermissibly disparaging.” The NLRB rejected this defense noting that virtually all of the accusations were true, and therefore, could not be deemed to be libel.

Implications

While the outcome of this case is not much of a surprise given the nature of Pflantzer’s statements and OnBoard’s admissions during the hearing, what is noteworthy is that neither Pflantzer’s Facebook post nor his e-mail were directed to his coworkers at OnBoard yet they were both found to constitute protected speech under Section 7. Despite the fact that he did not specifically direct his statements to his co-workers, the Board held that, “even if directed to tour guides of other New York City companies” Pflantzer’s Facebook post and e-mail message were nonetheless protected “union related activity.” With more and more individuals using Facebook, Twitter, Instagram, etc. each and every day, we may expect more decisions like this one in the future as the Board continues to expand the scope of employee rights in the 21st Century workplace.

 

UNION INFORMATION REQUESTS: WHAT EMPLOYERS SHOULD KNOW BEFORE SAYING “NO.”

By Seyfarth Shaw LLP on Posted in Collective Bargaining, Unfair Labor Practices

By: Kristin E. Michaels, Esq.

The National Labor Relations Board has reminded employers once again that there is a right way and a wrong way to object to union information requests on the grounds that the information sought by the union is irrelevant, unduly burdensome, overbroad or confidential.  The Board revisited this issue recently in Salem Hospital Corp., 359 NLRB No. 82 (March 22, 2013).  In short, the Board’s message is:  raise such objections quickly, couple the objection with an explanation, and offer an accommodation.  Anything short of this may lead to an unfair labor practice finding against the employer.

Unlike oft-asserted defenses by employers to plaintiffs’ discovery requests in employment litigation, employers’ claims that union information requests are irrelevant, burdensome, overbroad, or seek confidential information are scrutinized under a tough standard by the NLRB.  These objections will not pass muster unless the employer understands some key points and takes certain steps:

  1. The definition of “relevant” under the National Labor Relations Act is very broad.

A union is entitled to information needed for contract negotiations, to evaluate grievances, and the catch-all, “for contract administration.”  All information related to bargaining unit employees and their terms and conditions of employment is presumptively relevant.

      2.   Rarely claim as an initial response that requested information is irrelevant.

When responding to an information request, asserting as a first response that requested information is irrelevant – whether as a delay tactic or in the hopes that the union will drop its request – is a risky move.  Merely taking the position that presumptively relevant information is irrelevant can lead to an unfair labor practice finding.  Where information requested is not presumptively relevant, the best course of action still is not to immediately claim “irrelevancy,” but rather to respond with a statement that the employer “does not understand the relevancy of the request.”  This puts the burden on the union to establish relevancy, while at the same time not constituting an outright, and perhaps premature, refusal to provide information.

       3.   Objections must be raised in a timely fashion.

A delay in responding to an information request is just as much a violation of the National Labor Relations Act as not responding at all.  Further, a delay in raising objections to requested information may result in the employer losing valid confidentiality, burdensome, overbroad, and irrelevancy objections.  The Board so found in Salem Hospital, where the employer waited months before raising such objections.

        4.    Explain the objection.

As stated in Salem Hospital, an employer must not only timely raise objections, but also must “substantiate its defense.”  In other words, merely stating that a request is overbroad, unduly burdensome and the like is not enough.  An employer must explain the reason for the objection.  If the objection is “unduly burdensome,” explain, for example, how many hours would be required to gather the information.  If the objection is “overbroad,” explain why the information sought goes beyond the union’s stated need for it.

        5.  Don’t assume that there is a valid confidentiality objection.

Employers sometimes assume, as the employer in Salem Hospital did, that certain types of requested employee information, such as medical information, can be objected to on the grounds of confidentiality.  But it is important to remember that some statutes, such as HIPAA (the Health Insurance Portability and Accountability Act), have been interpreted or contain provisions which allow disclosure of medical information, without authorization, if done pursuant to the NLRA.  Thus, a confidentiality objection in such a situation would not be valid.

        6.   Offer an accommodation.

Rarely will raising a timely objection and explaining the basis for that objection be sufficient in the Board’s eyes for meeting an employer’s obligations under the Act.  The employer also must offer an accommodation if it objects to providing relevant information.  For example, if the objection is “confidentiality,” consider offering to produce the information after sensitive data is redacted, or after the union agrees to a confidentiality agreement limiting the use and dissemination of the information.  If the objection is “unduly burdensome,” consider offering to provide snapshots or a sampling of requested information, or consider offering to hire temporary personnel to gather the information if the union assumes or shares in the cost.  Even information that is objected to on the basis of irrelevancy may warrant an offer of accommodation.  If information requested contains both irrelevant and relevant information, offer to produce the information with irrelevant information redacted.

Unfair labor practice findings against employers due to a failure to appropriately assert objections to union information requests are all too common, although they easily can be avoided.  The potential ramifications for failing to appropriately respond to a union information request can be quite serious:  a finding against the employer by the NLRB of bad faith bargaining, the inability to declare impasse in bargaining, and converting an economic strike into an unfair labor practice strike, to name a few.  Following the above steps will help avoid these problems.

The Board Strikes Out Again: The D.C. Circuit Invalidates the Board’s New Posting Rule

By Seyfarth Shaw LLP on Posted in Current Events, NLRB, Protected Concerted Activity, Quorum, Unfair Labor Practices

By Christian J. Rowley, Esq.

On May 7, 2013, in yet another significant legal setback for the National Labor Relations Board (“Board”), a unanimous panel of  the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) invalidated the Board’s 2011 rule (“Rule”) mandating that all employers subject to the National Labor Relations Act (‘Act”) post a lengthy notice of alleged employee rights on their websites and at their workplaces. National Association of Manufacturers et al v. National Labor Relations Board, No. 12-5068 (D.C. Cir., May 7, 2013). The D.C. Circuit’s sound rejection of the Board’s Rule knocks out a signature element of the Board’s attempt to expand the reach and scope of federal labor law under the direction of former Chairman Wilma Liebman, with support from members Craig Becker and Mark Pearce.  When viewed together with other recent Court decisions, such as Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), which invalidated President Obama’s recess appointments to the Board, as discussed here, one does not need to be an expert in reading the tea leaves to see that the future does not look bright for many of the Board’s aggressively pro-labor rules and decisions since 2010.

A.        Background

On August 30, 2011, the Board issued a rule requiring employers subject to its jurisdiction to post on their properties and websites a “Notification of Employee Rights under the National Labor Relations Act” (“Notice”) 76 Fed. Reg. 54,006 (August 30, 2011). The Notice comes in prescribed size and format and identifies general and specific employee rights under the National Labor Relations Act. The enumerated rights include the more general rights to form a union, to bargain collectively, to discuss wages and benefits, to strike and picket, and so forth. The Notice also states that it is illegal for an employer to prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace, or to spy on or videotape peaceful union activities or pretend to do so. Perhaps not surprisingly, the Notice made no mention of the employees’ other rights under the Act, such as the right to decertify a union, the right to refuse to pay dues in a right to work state, and to object to dues in excess of those required for representational purposes. 

The Rule also suspends the Section 10(b)  six-month statute of limitation for the filing of any charge unless the employee has received actual or constructive notice that the conduct complained of is unlawful.  As an additional enforcement mechanism, the Rule provides that the Board may consider an employer’s knowing and willful failure to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue.

As justification for the Rule, the Board invoked Section 6 of the Act, which provides that the “Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the [Administrative Procedures Act], such rules and regulations as may be necessary to carry out the provisions of the Act.” 29 U.S.C. § 156. The Board offered various justifications for the exercise of its alleged powers under Section 6 to promulgate the Rule. 

Various small business and employer groups challenged the Rule, under a variety of theories, and the federal District Court for the District of Columbia in 2012 invalidated two portions of the Rule: the blanket tolling of the limitations period and the blanket presumption of an anti-union animus if the employer failed to post the notice. The District Court, however, allowed the Rule to stand despite its invalidation of portions of the rule, and the Plaintiffs appealed the case. On April 17, 2012, a Panel of the D.C. Circuit Court of Appeals stayed the enforcement of the Rule pending the Appeal. Shortly after the District Court opinion, a federal district court in South Carolina found that the Board lacked the authority to promulgate the rule–a decision now on appeal to the United States Court of Appeals for the Fourth Circuit.

B.        Decision

The Court of Appeals initially reviewed the issue of whether the Board even had a legal quorum at the time it promulgated the Rule in light of the D. C. Circuit’s invalidation of President Obama’s recess Board appointments in the Noel Canning decision. The Court determined that because the Board still had at least three lawfully appointed members at the time it promulgated the Rule for publication in the Federal Register in late August 2011, it had the necessary quorum to act. (Interestingly, the Court noted that Craig Becker’s appointment to the Board was assumed to be constitutionally invalid under Noel Canning, although it did not need to decide that issue because there was a quorum regardless).

The Court then noted that Section 8(c) of the Act, which was enacted in 1947, implemented an employer’s First Amendment right to engage in non-coercive speech about unionization and expressed a congressional intent to encourage debate on labor-related issues. Section 8(c) provides, in relevant part:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.  29 U.S.C. § 158(c).

The Court went on to say that although Section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” The Court noted that the Rule mandates that the failure to post the required Notice constitutes an unfair labor practice, and that same failure can also be evidence of anti- union animus to support another unfair labor practice. The Court found that both of these provisions violated the plain language of Section 8(c) by requiring the employer to disseminate the Board’s Notice in order to avoid one or more unfair labor practice charges.  In reaching this decision, the Court also analyzed the First Amendment implications of the Rule, and suggested (without holding) that the First Amendment prohibited the Board from compelling employers to disseminate its carefully selected speech. 

The Court then analyzed that portion of the Rule that purports to toll six-month limitations period of the Act when an employer has failed to post the Notice. The Court rebuffed arguments made by the Board in support of the so-called equitable tolling. The Court ultimately concluded that the 1947 Congress could not have foreseen the type of alleged equitable tolling the Board would attempt to enact into law in 2011, and thus could not have intended that equitable tolling be incorporated into the Act. Consequently, the Board’s equitable tolling theory violated the Act.

Having found all three enforcement mechanisms for the Rule invalid, the Court concluded that it need not reach the question whether the Board had the authority under Section 6 to promulgate the Rule. The Court concluded that the Board would not have adopted the Rule absent any basis for enforcement, and so invalidated the Rule as a whole. 

In a separate concurring opinion, two of the three members of the panel stated that they alo beleived that the Board did not have authority under Section 6 to promulgate the Rule in the first place. (Judge Randolph, who wrote the lead opinion, did not reach the issue due to his reliance on Section 8(c)). The concurring judges found the Board to be bound in its regulatory authority not only by the purpose that Congress has selected, but also by the means chosen by Congress to achieve that purpose. The concurring opinion then notes that Congress established the Board as a reactive agency to act in response to an unfair labor practice charge or petition. After reviewing the Board’s purported justifications for the Rule, the concurring opinion concluded that the rule was not “necessary” to carry out a substantive provision of the Act, and that the Act “simply does not authorize the Board to impose on an employer a freestanding obligation to educate its employees on the finer points of labor relations law.” According to the concurring opinion, the remedial and reactive nature of the Act supports the conclusion that Congress did not intend to authorize such  an “aggressively prophylactic” posting rule.

C.        Conclusion

The D.C. Circuit’s decision is a particularly devastating blow for the agenda of the Obama-appointed Board. The posting was a highly publicized attempt by the Board to implement some of organized labor’s wish list–an attempt which the Court unanimously rejected in a decision that one assumes is relatively secure given the current make-up of the Supreme Court. In the decision, and particularly in the concurring opinion, the Court also raised the specter of serious issues for future attempts by the Board to  implement proactivelyits agenda throughthe rule-making process by relying on Section 6 of the Act. Similarly, the Court’s lengthy discussion of the First Amendment implications of compelled speech could seriously undermine other contemplated or pending Board rules, such as the mandatory reading of postings by employers as well as the Board’s possible attempts to limit captive audience meetings or mandate increased labor access to employer property. In any case, the short term effect of the decision is that the Board’s  posting Rule will continue to be on hold for at least the foreseeable future, and most likely forever.

NLRB Advice Memorandum Provides Guidance On A Lawful Confidentiality Policy

By Seyfarth Shaw LLP on Posted in Current Events, NLRB

By:  Kamran Mirrafati, Esq.

The NLRB Division of Advice recently issued a Memorandum finding that an employer’s confidentiality rule violated Section 8(a)(1) by precluding discussions about ongoing investigations into employee misconduct.  However, in reaching this decision, the Associate General Counsel proposed language that it would consider to be lawful.  [See Verso Paper, NLRB Div. of Advice, No. 30-CA-89350, January 29, 2013 (released April 16, 2013).]

 The NLRB has held that an employer violates the National Labor Relations Act if it maintains a work rule that chills employee Section 7 rights.  One such right is the employee’s ability to discuss discipline or disciplinary investigations involving fellow employees.  

 An employer may only prohibit discussions regarding ongoing investigations if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 right.  More specifically, the employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”  See Banner Estrella Medical Center, 358 NLRB No. 93 at p. 2 (2012) (citing Hyundai America Shipping Agency, 357 NLRB No. 80 at p. 15 (2011)).  Thus, a blanket rule prohibiting employee discussions of ongoing investigations would be invalid because it would not take into account a particularized need for confidentiality on a case-by-case basis.

 Although a blanket rule prohibiting discussions would be prohibited, the Associate General Counsel indicated that an employer could comply with the NLRA if it has a policy that complies with Banner Estrella.  The following proposed language would be lawful according to the Division of Advice:

 [Employer] has a compelling interest in protecting the integrity of its investigations.  In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and you do not maintain such confidentiality, you may be subject to disciplinary action up to and including immediate termination.

Even with such a compliant policy, given the current Board’s view of the legal requirments, employers must be careful to only impose a confidentiality requirement where the investigation presents specific facts giving rise to a legitimate and substantial business justification for interference with Section 7.

Code Blue: NLRB Judge Finds Hospitals’ E-mail And IT Policies Infirm Under the NLRA

By Seyfarth Shaw LLP on Posted in NLRB, Protected Concerted Activity, Unfair Labor Practices

By Ashley Kircher, Esq.

Recently, an NLRB administrative law judge ruled that two policies maintained by subsidiaries of the University of Pittsburgh Medical Center (“UPMC”) violated Section 8(a)(1) of the National Labor Relations Act.  See UPMC, Case No. 6-CA-81896, 4/19/13. Specifically, ALJ David Goldman found that the hospitals’ electronic mail and messaging and acceptable use of information technology resources policies impermissibly interfered with employees’ Section 7 right to engage in protected concerted activity. He did find, however, that the hospitals’ no solicitation policy passed muster under the Act. 

Electronic Mail and Messaging Policy

The hospitals’ electronic mail and messaging policy provided that UPMC electronic messaging systems could not be used in the following ways:

  • To promote illegal activity or in a way that might be disruptive, offensive to others, or harmful to morale;
  • To solicit employees to support any group or organization unless sanctioned by executive management; or
  • In a manner inconsistent with hospital policies and directives, including, but not limited to policies concerning commercial communication, solicitation, sexual harassment, job performance, and appropriate internet use.

In finding this policy unlawful, the ALJ reasoned that the distinction between the type of non-work use that was prohibited and that which was permitted was stated in “broad and ambiguous terms” (namely, “disruptive,” “offensive,” and “harmful to morale”) and that there were “no illustrations or guidance” that would assist employees in interpreting them. As a consequence, the terms could reasonably be understood to include a spectrum of communication about unions and criticism of working conditions, thereby unlawfully tending to chill employees’ exercise of their Section 7 rights. The ALJ’s decision implied that if the policy had simply prohibited all non-work use of the email system, it would have been lawful under the Act.

The ALJ also found the e-mail policy to be independently unlawful due to its prohibition on solicitation to “support any group or organization unless sanctioned by executive management.” The ALJ reasoned that a rule providing a management approval process “is antithetical to Section 7 activity” because “a reasonable employee will be chilled from even asking.”

Acceptable Use of Information Technology Resources Policy 

The hospitals’ acceptable use of information technology resources policy provided that hospital employees could generally only use hospital IT resources for activities related to assigned job responsibilities, but that to the extent a particular IT resource was assigned to an employee, the employee was permitted de minimis personal use of the resource. “De minimis personal use” was defined as use of the IT resource only to the extent that it did not affect the employee’s job performance or prevent other employees from performing their job duties. 

The policy also provided that without UPMC’s prior written consent, employees could not independently establish (or otherwise participate in) websites, social networks (such as Facebook, MySpace, peer-to-peer networks, Twitter, etc.) electronic bulletin board or other web-based applications or tools that (1) described any affiliation with UPMC; (2) disparaged or misrepresented UPMC; (3) made false or misleading statements regarding UPMC; or (4) used UPMC’s logos or other copyrighted or trademarked materials.

The ALJ found the policy to be unlawful, reasoning that it would tend to reasonably chill protected employee discussion regarding wages, personnel matters, benefits, and other terms and conditions of employment. The ALJ specifically noted that nothing in the policy indicated that protected activity was exempt, that the policy failed to clearly define what constituted impermissible conduct, and that the requirement that employees request and receive permission in order to find out if Section 7 activity would be permitted was “antithetical to the Act.”

No Solicitation Policy

The ALJ did, however, uphold the hospitals’ no-solicitation policy, which provided as follows:

No staff member may distribute any form of literature that is not related to UMPC business or staff duties at any time in any work, patient care, or treatment areas.  Additionally, staff members may not use UMPC electronic messaging systems to engage in solicitation.

The ALJ found that the policy did not violate the NLRA because it prohibited all forms of non-work solicitation, and therefore did not have the potential to discriminate against protected concerted activity. 

Concluding Thoughts

The ALJ’s decision highlights the importance of making sure that language in e-mail and IT policies is sufficiently insulated from challenge under the NLRA. In particular, employers will want to be cautious that their policies do not include provisions that make an employee’s ability to engage in certain kinds of expressive activity dependent on management approval. Employers should also strongly consider including language that explicitly informs employees that Section 7 activities are not prohibited. Going even further, and depending on the nature of their business, employers might consider taking the more drastic step of flatly prohibiting all non-work use of company e-mail systems and IT resources. 

UPMC has until May 17 to appeal the ALJ’s decision to the NLRB. We will closely monitor any developments in the case.

THE NLRB, SOCIAL MEDIA AND THE NON-UNION WORKPLACE: EMPLOYEES IMPROPERLY FIRED FOR FACEBOOK POSTINGS

By Seyfarth Shaw LLP on Posted in Concerted Activity, NLRB

By Marc R. Jacobs, Esq.

           In Design Technology Group LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (4/19/13), the National Labor Relations Board (NLRB) continued its aggressive efforts to regulate the workplace implications of social media in non-union workplaces.  In this decision, the NLRB: (a) determined that several employees had engaged in protected concerted activity when they complained about their supervisor on Facebook; (b) rejected the employer’s defense that the employees “schemed to entrap their employer into firing them;” and  (c) ruled that the employer violated the National Labor Relations Act (Act) when it fired them in retaliation for the Facebook postings.  

            The employer sells clothes.  There was an ongoing dispute between several employees and the manager about the store closing time because they claimed the store was in an unsafe neighborhood.  The employees posted several negative comments on Facebook about the manager’s conduct, including the following positing by one of them:  “Tomorrow I’m bringing a California workers rights book to work.  My mom works for a  law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on in violation. . . .”   Another employee showed the posts to the manager and several days later the employees were fired. 

            The NLRB initially determined that the postings were protected concerted activity under the Act because the complaints related to terms and conditions of employment (hours and safety) and the employees were working together for their “mutual aid and protection.”  Next, the NLRB found a causal connection between the postings and the termination.  In so ruling, the NRLB rejected the claim that the employer had been entrapped and stated that the employees’ motives were irrelevant in analyzing whether their conduct was protected by the Act.

            This case highlights several trends in employment law:

1.         Aggrieved workers continue to file claims of retaliation in a variety of forums at an ever increasing pace. 

2.         The NLRB is a forum available to workers in non-union settings.

3.         Employees who engage in conduct together related to wages, benefits, hours and other working conditions are protected by the Act from retaliation, and the NLRB will aggressively pursue claims to protect those individuals. 

4.         Negative comments by employees on Facebook and other social media sites, which relate to the employees’ workplace, treatment and management,  are protected activity and taking action against an employee for those comments can result in an unfair labor practice charge and liability.