Employer Labor Relations Blog

NLRB Tells Employers to Mind their Own Business

Posted in Concerted Activity, NLRB, Protected Concerted Activity, Uncategorized, Unfair Labor Practices

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By: Howard Wexler, Esq. & Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

Guidance On Handbooks, Policies, And Social Media Guidelines – Employers’ Attempts to Protect Themselves Too Much Can Lead to Loss of Protection

Posted in Concerted Activity, NLRB, Uncategorized, Unfair Labor Practices

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By: Candice Zee, Esq. & Monica Rodriguez, Esq.

Seyfarth Synopsis: The NLRB orders employer to cease and desist from maintaining numerous provisions in its Social Networking Guideline and provisions in the Handbook related to social media, privacy, and confidentiality, and no solicitation on the grounds that language violated Section 8(a)(1) of the Act.

On July 15, 2016, the National Labor Relations Board (the “Board”) in Cy-Fair Volunteer Fire Department and Robert Berleth, et al., 364 NLRB No. 49 (July 15, 2016) affirmed an Administrative Law Judge’s decision that various provisions in Cy-Fair Volunteer Fire Department’s (“Cy-Fair”) Handbook and Social Networking Guideline violated Section 8(a)(1) of the Act because the language could lead an employee to reasonably believe that he/she was prohibited from organizing or engaging in concerted activity.

In determining whether a challenged rule is unlawful, the Board considered the following evidence: (1) whether employees would reasonably construe the language to prohibit Section 7 activity; (2) whether the rule was promulgated in response to union activity; or (3) whether the rule was applied to restrict the exercise of Section 7 rights.

Cy-Fair’s Social Networking Guideline Violated The Act

Cy-Fair’s Social Networking Guideline’s prohibited the use of its logos, names, pictures or accounts of activities without prior approval. In finding that Cy-Fair’s Social Networking Guideline violated the Act, the Board reasoned that employees could reasonably believe that they, or a union, were not permitted to seek support from other employees, or publicize a dispute with Cy-Fair by using its name or logo on their clothing or literature.

Provisions of Cy-Fair’s Handbook Also Violated The Act

The following provisions of Cy-Fair’s Handbook were also at issue: (1) overview; (2) essential behavioral expectations; (3) department systems; (4) blog; (5) social media; (6) proprietary information/confidentiality; (7) no solicitation/distribution policy; and (8) employee records and privacy. The Board held that some language in each of these provisions violated the Act.

Cy-Fair’s overview, essential behavioral expectations, blogging, proprietary information/confidentiality, and employee records and privacy sections attempted to protect Cy-Fair’s confidential/proprietary information and its employees’ personal information. It provided that employees would be disciplined if they shared this information without the express consent of the appropriate person/entity.  The Board, however, found that these sections were unlawful because such provisions limited the scope of the information that employees could share or discuss (i.e. confidential/proprietary information and other employees’ personal information), they impeded the employees’ right to discuss terms and conditions of employment.

The Board determined that one of the three sentences in the non-solicitation/distribution policy also violated the Act. The first and second sentences of the policy prohibited solicitation/distribution of literature during work time and required that the topics discussed by off-duty employees engaging in solicitation/distribution not disturb working employees.  The Board found that these sentences were lawful because the complete prohibition of solicitation/distribution was limited to “work time” and  the limitation to the topics discussed was rational.  The Board determined that the Union failed to satisfy its burden that there were no other means of communicating with employees.  Thus, Cy-Fair’s restriction that non-employees obtain HR approval prior to soliciting or distributing literature was lawful.

The Board, however, found that third sentence prohibiting solicitation and distribution of literature in areas frequently visited by customers, or solicitations that otherwise interfered with operations, violated the Act. The Board reasoned that because the nature of Cy-Fair’s business made it unclear who its “customers” were and how it would affect its operations, employees could reasonably believe that they were prohibited from exercising their section 7 rights.

Lessons Learned

It is important to note that all of the policies that were found unlawful were in place prior to any union activity at Cy-Fair. In its analysis, the Board instead focused on whether employees would reasonably construe the above language to prohibit their Section 7 rights.  Ultimately, the Board ordered that Cy-Fair cease and desist from maintaining the above mentioned provisions in its Handbook and the unlawful language in the Social Networking Guideline.

This case serves as a reminder that employers should be careful when drafting their policies and be mindful of any restrictions. It is particularly important for employers to review language in its policies that could be construed as being overbroad as it may result in less protection for the employer in the future.  If you have any questions regarding your workplace’s handbook and social media policies or practices, please contact the authors, or another Seyfarth attorney.

Paying Employees to Opt Out of Insurance? BEWARE

Posted in Collective Bargaining, Current Events, NLRB, Uncategorized

By: Ronald Kramer, Esq. & Benjamin J. Conley, Esq.

Seyfarth Synopsis: That “win-win” in contract negotiation wherein employees are paid to opt out of employer insurance has become much more complicated thanks to the IRS. Basically, if bargaining parties do not follow new IRS rules, those opt-out payments may end up costing an employer much more in the form of fines for not providing employees with affordable coverage under the Affordable Care Act (“ACA”).

In December 2015 the IRS announced that any unconditional payment to employees to opt out of employer-sponsored insurance was basically a salary reduction towards the payment of health insurance costs, since it is lost if the employee takes employer insurance. Thus, the amount of any unconditional opt-out payment should be counted along with any other employee premium contribution obligations towards whether employer-offered insurance is ”affordable.”  Under the ACA, if the employee cost of single coverage for the employer’s lowest cost plan option exceeds 9.66% of his household income, it is considered unaffordable.  For each employee offered unaffordable coverage who receives subsidized insurance from an exchange, the employer is charged an employer shared responsibility penalty of $3,240 per year.  Given the size of some opt out payments, those payments — along with whatever the employee’s single coverage contributions/premiums are — could exceed the affordability threshold.

Pending formal rule making the IRS provided that an employer need not count unconditional opt-out payments as employee health insurance contributions for purposes of insurance affordability provided the opt-out arrangement was adopted before December 16, 2015. For more information on this earlier guidance, see our Health Care Reform alert.

As promised, on July 6, 2016, the IRS issued proposed rules regarding opt out payments scheduled to take effect for plan years beginning after December 31, 2016. The rules set forth when opt out payments must be added to the cost of coverage for purposes of determining whether such coverage is affordable.

Critically, the IRS rejected requests that the rules exempt conditional opt-out payments made pursuant to a collective bargaining agreement (“CBA”). The IRS did agree, however, to limited grandfathering for contractual opt-out agreements.  Opt-out plans required under CBAs in effect before December 16, 2015 — for both employers and successor employers — will be treated as having been adopted prior to December 16, 2015, and excluded under the new rules until the later of:  (i) the beginning of the first plan year that begins following the expiration of the CBA (disregarding any extensions); or (ii) plan years beginning after December 31, 2016 (the applicable date of the rules).

Except for this CBA exception, going forward all opt out arrangements, union and non-union, conditional (other than those identified below) and unconditional, will be treated as part of the employee’s required contribution for employer health insurance. Certain “eligible opt-out arrangements” will be excluded, however, but only if the opt out arrangement satisfies the following requirements:

  1. The employee’s right to receive an opt-out payment is conditioned on the employee providing “reasonable evidence” that the employee and all other individuals for whom the employee reasonably expects to claim a personal exemption deduction for the taxable year or years that begin or end in or with the employer’s plan year to which the opt-out arrangement applies (the employee’s expected tax family) have or will have minimal essential coverage during the period of time for which the opt-out arrangement applies.
  2. That minimal essential coverage cannot be obtained from an individual market or an insurance exchange.  In other words, the coverage must be through another employer- sponsored plan, such as a spouse’s.
  3. While not the subject of these rules, the DOL has opined, in Technical Release 2013-03, that to avoid other ACA pitfalls, the health plan the employee opting out of enrolls in (just like the plan he is opting out of) also must provide “minimum value” — i.e., that it covers at least 60% of the actuarial value of health costs.  Thus, the employer must further have the employee confirm that the employee’s other group coverage provides “minimum value.”
  4. The “reasonable evidence” of alternative coverage may include an employee’s attestation of coverage for the relevant period, but the employer may always require some other reasonable evidence of coverage.
  5. The “reasonable evidence” must be provided no less frequently than every plan year to which the opt-out arrangement applies.  It can be provided no earlier than a reasonable period of time before the commencement of the period of coverage (e.g., an open enrollment period) to which the opt-out arrangement applies.  The employer may require evidence of alternative coverage to be provided at a later date, such as after the plan year, to enable it to require evidence that alternative coverage has already been obtained.
  6. The arrangement must provide that the opt-out payment will not be made (and the employer must not make the payment) if the employer knows or has reason to know that the employee or other members of his expected tax family does not have or will not have the alternative coverage.

This new rule applies to all employers subject to the ACA’s employer mandate, both union and non-union. (But, see the note regarding minimum value in item 2 above, which applies to any group health plan, regardless of size.)  Employers with represented employees must take care as their contracts expire to negotiate language either giving them the discretion to have the opt-out program comply with IRS rules or incorporating detailed compliant language in the CBA itself.  Failure to do so could result in an unexpected and costly surprise in the form of employer shared responsibility penalties that cannot be rectified until the next negotiations.

Flip-Flops, Not Just For the Beach or Boardwalk: NLRB (Again) Buries Consent Requirement for Bargaining Units with Temps

Posted in Current Events, Organizing

By: Paul Galligan and Jade M. Gilstrap

Seyfarth Synopsis: Overturning decade old precedent, the Board found that temporary workers supplied by a staffing agency may be included in a bargaining unit with regular employees of a host employer without the consent of both employers. The Board will apply “traditional community of interest” factors in determining whether such a unit is appropriate.

On Monday, in a 3-1 decision, Miller & Anderson, Inc. et. al., 364 NLRB No. 39 (July 11, 2016), (Decision) the NLRB overturned its prior precedent and continued its efforts to expand the joint-employer platform by making it substantially easier for temporary workers to be included in bargaining units with employees of the user employer.

For over a decade, the Board followed its holding in Oakwood Care Center, 343 NLRB 659 (2004), requiring staffing agencies and user employers to both provide consent before a union could organize a bargaining unit which included regular employees of the host employer and temporary employees supplied by the staffing agency.  The Oakwood Board opined that Congress had not given the Board authority to direct elections in bargaining units comprised of employees of more than one employer, and that the complexity of a combined unit gave rise to significant conflicts between the multiple employers and group of employees.

In specifically overturning Oakwood, the Board emphasized that “[r]equiring employees to obtain employer permission to organize in such a unit is surely not what Congress envisioned,” as the consent mandate “upend[s] the Section 9(b) mandate and allow[s] employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”  To that end, the Board concluded that employer consent is no longer necessary for bargaining units that combine jointly employed and solely employed employees.  Instead, the Board will apply the “traditional community of interest factors” in deciding whether a given unit is appropriate.

In doing so, the Board claims to have returned to its holding in M.B. Sturgis, 331 NLRB 1298 (2000), which it overturned in Oakwood 4 years later. M.B. Sturgis itself overturned 40 years of Board precedent.  However, the Board’s decision in Miller & Anderson has far wider reaching implications than that of Sturgis, given the significant changes to the joint-employer landscape established in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015).

In his dissent, Member Miscimarra raised concerns about how the new standard will be applied in light of the broad joint-employer standard set forth in the Browning-Ferris:  “As a result of today’s decision, our statute is being stretched further to combine (i) all the challenges associated with joint-employer bargaining under the expansive Browning-Ferris standard, plus (ii) additional issues caused by mandating bargaining where one or more business entities do not have any employment relationship with some employees in the bargaining unit.  Indeed, if the unit consists mostly of employees who are solely employed by one joint employer (the user employer), the majority of unit employees will have no employment relationship with the other employer (the supplier employer).”

Like many employers, Member Miscimarra is justifiably concerned that non-employer businesses, like staffing agencies, will be forced to bargain with members of the combined unit even if they do not have the slightest authority or potential authority to “indirectly” affect employment terms and conditions. The Board majority, however, seems to have no fear of injecting itself into complex business relationships, spanning different interests and industries with no regard for competing or conflicting employee or employer interests, all in the interests of giving unions a leg up.

Miller & Anderson, combined with the Browning-Ferris decision from 2015 and the Quickie Election rules, form a trilogy with broad implications for employers who now face the possibility of increased unionization of their workforces and those of their staffing agencies in double quick time.  Accordingly, employers should select their staffing agencies wisely, mindful of the possibility of having to bargain with temporary employees with whom they have little or no business relationship in conjunction with a staffing agency that may have conflicting interests.

The NLRB Puts Federal Contractors in a Double-Bind: Settle Now or Risk Losing Future Contracts

Posted in Current Events, Unfair Labor Practices

By:  Brian M. Stolzenbach and Andrew R. Cockroft

Seyfarth Synopsis: Beginning July 1, 2016, pursuant to the President’s Fair Pay and Safe Workplaces Executive Order the NLRB will now require any Federal Contractor that has a Complaint issued against it by a Regional Director to submit information that may lead to the loss of future federal contracts unless that employer settles or resolves the charge prior to the issuance of the Complaint.

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order with the stated purpose of “promot[ing] economy and efficiency in procurement by contracting with responsible sources who comply with labor laws.” The Executive Order mandates that contracting agencies look at a federal contractor’s history of violating various labor and employment laws, including the NLRA, when deciding whether to do business with the contractor. The Executive Order further requires that agencies track, and that contractors must disclose, any “administrative merits determination[s]” that the contracting party violated the NLRA.  While one would reasonably assume that an “administrative merits determination” that a party violated the NLRA would only include a decision of the Board or an ALJ, last May the Department of Labor issued proposed guidance interpreting “administrative merits determination” to include a “complaint issued by any Regional Director.”

Accordingly, on July 1, 2016, the NLRB Office of the General Counsel issued Memorandum OM 16-23 stating that the NLRB will begin collecting information pursuant to the above Executive Order on any complaints issued after July 1, 2016. The memorandum can be found here.

Compounding the obvious problems of possibly losing federal contracts based on the mere allegations sufficient to issue a Complaint, the memo further explains how the NLRB will use this new database to pressure settlements out of employers. The memo contains several attachments, including a form email to be sent to charged employers once the Regional Director has made the determination to issue a complaint. The form email states that “if you reach a resolution of this matter before the Region issues a complaint, such as by entering a pre-complaint informal settlement agreement with the Regional Director, no information on this case will be forwarded to this database.”

Thus, contractors are now in the precarious position of either settling potentially baseless unfair labor practice charges or risking that they could lose future contracts. With this latest directive from the NLRB, federal contractor employers should assess these risks associated with any existing unfair labor practice charges still under investigation by the Regions.

 

Federal Court Halts Enforcement of DOL’s New “Persuader Rules”

Posted in Current Events, Organizing

By:  Christopher W. Kelleher

Seyfarth Synopsis: On June 27, 2016, a federal district court in Lubbock Texas issued a nationwide preliminary injunction preventing the Department of Labor’s new persuader regulations from taking effect this July 1, 2016.

The United States District Court for the Northern District of Texas dealt the Department of Labor (DOL) a major blow yesterday when it entered a nationwide injunction prohibiting the enforcement of DOL’s new “Persuader Rule.” (Decision) The Rule, which was set to take effect on July 1, requires certain public reporting by employers and their consultants (including attorneys).  The specific parameters of the reporting requirements are discussed in numerous prior blogs, including here and here and here.

The Court held that the Plaintiffs (including several states and business associations) would suffer irreparable harm absent injunctive relief.  Not only does the Rule reduce access to comprehensive legal advice and representation, but it also chills First Amendment rights, “including the right to express opinions on union organizing and to hire and consult with attorneys.”  Moreover, the regulation “conflicts with the promulgated rules of every State regarding an attorney’s ethical obligation to maintain client confidences.”

The Court determined that the DOL lacks the authority to promulgate and enforce such an arbitrary and capricious regulation.  The Court further concluded that the harm associated with depriving employers of access to legal counsel and burdening their constitutional rights outweighs any potential harm to the DOL.

While there is some uncertainty surrounding how the DOL will respond, several similar challenges are circulating through the courts, and one or more of these cases will eventually be heard by the federal courts of appeals.  For the time being, this decision is a significant victory for employers, as it preserves their right to obtain sound legal advice protected from disclosure by the attorney-client privilege.

The NLRB Guards “Mixed-Guard” Units Against Withdrawn Recognition

Posted in Bargaining Unit, Collective Bargaining, NLRB, Organizing, Representation Cases, Unfair Labor Practices

By: Samuel Sverdlov, Esq.  & Howard Wexler, Esq.

Seyfarth Synopsis: In Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the NLRB abandoned its long-established precedent from Wells Fargo Corp., 270 NLRB 787 (1984), and held that employers may not refuse to bargain with a “mixed-guard” union whom the employer has voluntarily recognized.

These days, employers are having a harder time relying on well-established law from the NLRB. On June 9, 2016, the Board issued its decision in Loomis Armored US, Inc., abandoning the standard it adopted more than 30 years ago in Wells Fargo Corp., regarding the withdrawal of recognition of “mixed-guard” units.

Loomis Armored US, Inc. (“Loomis”) had voluntary bargaining relationships with 10 “mixed-guard” units, at least one of which dated back 47 years. In 2010, Loomis refused to bargain with the union and withdrew recognition from six of these mixed-guard units. Despite the clear precedent in Wells Fargo, the NLRB took the position that “once an employer has voluntarily recognized a mixed-guard union for a unit of guards, the employer’s bargaining obligation should continue until the union is shown to have lost the majority support in the unit.” Id. slip op. at 1-2.

The Board found that the employer had an obligation to bargain with the union. The Board noted that “Wells Fargo has been the object of continued criticism, including from the federal appellate courts.” Id. slip op. at 1.  The Board found that while the statutory language of Section 9(b)(3) of the National Labor Relations Act (“NLRA”) prohibits the Board from certifying a mixed-guard unit, the language neither limits an employer’s right to voluntarily recognize such a unit (and in-fact, the Board has repeatedly endorsed this employer-right), nor considers when an employer can withdraw recognition of a voluntarily recognized mixed-guard unit. The Board concluded that it would not be contrary to the NLRA for the Board to apply “otherwise universal rules of collective bargaining to a collective-bargaining relationship voluntarily entered into by the employer itself.” Id. slip op. at 5.  Accordingly, employers who voluntarily recognize mixed-guard units “remain[] bound by the collective-bargaining relationship into which it voluntarily entered unless and until the union is shown to have actually lost majority support among unit employees.”

The Board’s holding will not be applied retroactively.

Implications for Employers

The implications of Loomis for employers who have “mixed-guard” units cannot be understated.  Although employers have voluntarily recognized mixed-guard units based in part on the understanding that they can freely withdraw recognition at the end of the bargaining relationship, under Loomis, employers will no longer be able to withdraw recognition absent a showing that the union lost the majority support of the unit.  Thus, moving forward, employers considering a voluntary recognition of a mixed guard unit should be aware that ordinary rules of collective-bargaining will apply to them if they choose to withdraw recognition down the road.

D.C. Circuit: Transfer of Work Not an Unfair Labor Practice

Posted in Bargaining Unit, Collective Bargaining, NLRB, Unfair Labor Practices

NLRB (Logo)By: Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: The D.C. Circuit partly denied enforcement of the NLRB’s decision in which the Board ruled that a transfer of work constituted a change in the scope of the bargaining unit and ordered the employer to return previously transferred employees back to their original unit.

In Aggregate Industries v. NLRB, No. 14-1252, 2016 WL 3213001 (D.C. Cir. June 10, 2016), the D.C. Circuit partly denied enforcement of the NLRB’s decision against Aggregate Industries.

The key question, according to the D.C. Circuit, was whether the Company’s decision to move the material hauling work from its construction side of the business to its ready-mix division constituted merely a transfer of work or whether it changed the scope of the bargaining unit itself.

If the relocation of driving responsibilities was a transfer of work, then the Union had a duty to meet with the Company and bargain over the issue.  Once impasse had been reached, the Company could unilaterally implement the change.

Alternatively, if the transfer was a change in the scope of the unit, the Union was not required to meet to bargain and a failure to do so would not provide the Company with a lawful basis to implement the change.

The Board characterized the decision as a change in the scope of the bargaining unit rather than a transfer of work, based in part on the fact that 60 drivers were relocated from a bargaining unit covered by the Company’s Construction Agreement to a unit governed by the Ready-Mix Agreement.  The drivers were transferred as part of an agreement between the Company and the Union, which took place after the union filed the unfair labor practice charge in the case and therefore, according to Judge Raymond A. Randolph, the fact that drivers were relocated was “a red-herring, and the Board was wrong to rely so heavily on it.”

Rather, the D.C. Circuit found that the operative action was the Company’s initial proposal to the Union in which the Company communicated its intent to transfer work from the construction side of the business to the ready-mix side. This proposal was separate and apart from the Company’s request to use the same drivers to perform the work.

As a result, transferring the work out of the unit did not change the scope of the unit because the unit was not defined by the work that employees performed, but rather by job classification. Job classifications governed by the Ready-Mix Agreement and the Construction Agreement both arguably included the work to be transferred.  Thus, the Company’s unilateral implementation of the work transfer was lawful as “the union had an opportunity to bargain over the transfer but declined to do so.”

The Board argued that the union had not been given a meaningful opportunity to bargain as the proposal to transfer the work was presented as something the Company intended to do, not as a proposal. But, according to Judge Randolph and the D.C. Circuit, employers do not need to present proposals couched in “what-ifs and maybes” in order to trigger a bargaining obligation as, “The National Labor Relations Act requires employers to bargain; it does not require them to be bad at it.”

Union Supporters’ Threatening “Jokes” During Campaign No Laughing Matter, D.C. Circuit Finds

Posted in Bargaining Unit, Discrimination, Elections, NLRB, Organizing, Unfair Labor Practices

NLRB    By: Bryan Bienias, Esq.

Seyfarth Synopsis: The U.S. Court of Appeals for the D.C. Circuit held that the National Labor Relations Board abused its discretion by ignoring its own precedent and downplaying threats made by pro-union employees during an election campaign where the union ultimately prevailed by a one-vote margin.

Should union supporters’ casual, half-hearted “threats” of violence during an election campaign warrant overturning the results in a closely contested election? Contrary to the NLRB, a three-judge panel of the D.C. Circuit Court of Appeals answered that, under the Board’s own precedent, “probably.”

The case, ManorCare of Kingston PA LLC v. National Labor Relations Board, 14-1166 (D.C. Cir. 2016) stems from a 2013 election among nurses’ aides at the employer’s Pennsylvania facility.  The union ultimately eked out a victory by a margin of 34-32.

The employer challenged the results, alleging that two bargaining unit nurses during the campaign threatened to “punch people in the face,” “beat people up and destroy their cars” and “slash their tires” if the union did not prevail. Although the nurses initially made these comments in a “somewhat joking manner,” the statements were disseminated to eight or nine other unit employees, some of whom believed the threats to be more serious, causing ManorCare to provide additional security for three days following the election.

The Board, purporting to apply its six-factor Westwood Hotel test for evaluating third-party threats during a campaign, and found the threats not sufficiently serious to overturn the election.  Without applying its test to the facts, the Board emphasized the “casual and joking nature” of the original comments and dismissed the remarks as “no more than bravado and bluster.”  Given that the statements were disseminated to other employees out of context, the Board claimed that a “game of telephone” should never be the basis for overturning an election.

The D.C. Circuit disagreed, finding that the Board abused its discretion by only cursorily acknowledging its own precedent and failing to discuss how the facts aligned with Board law. The Court noted that the Board has drawn a “firm line” that an election cannot stand where threats create a “general atmosphere of fear and reprisal” that render a free election impossible. The Court noted that the objective standard required by the Board’s precedent “requires assessing the threats according to what they reasonably conveyed, not what the speakers intended to convey.”  Thus, the Court found irrelevant that that the comments might have originated as jokes, noting that “[t]he remarks were threatening, and seriously so.”

The Court also found that the dissemination of the threats to eight or nine voters weighed against upholding the election results, especially since “only a single voter could have changed the outcome,” a fact the Board failed to acknowledge. The fact that the threats actually instilled fear in co-workers and were made in part by an employee who displayed visible injuries from a recent knife fight only underscored the objectively serious nature of the threats.

Despite the D.C. Circuit handing a victory to the company, employers can expect to see this case cited by unions and the Board when addressing similar “joking” statements by pro-company employees. As always, employers should strive to maintain an atmosphere free of physical threats and intimidation during an election campaign — among managers and staff alike — or run the risk of having a hard fought election victory overturned.