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By: Tiffany Tran, Esq.

Seyfarth Synopsis: In another signal that the Board may overturn the Obama Board’s decision in Purple Communications allowing employees to use their employer’s email systems to communicate about wages, hours, working conditions and union issues, the Board recently published a letter reiterating its decision to reconsider Purple Communications and invited comment from the public on the standard the Board should apply in these cases.

Under Purple Communications, 361 NLRB 1050 (2014), employees who have access to their employer’s email system for work-related purposes have a presumptive right to use that system for Section 7 protected communications regarding wages, hours, working conditions and union issues on nonworking time. Purple Communications overturned the Board’s decision in Register Guard, 351 NLRB 1110 (2007), holding that employers may lawfully impose neutral restrictions on employees’ non-work-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.

In December 2017, the newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. The memo cited Purple Communications as one of the cases the GC “might want to provide the Board with alternative analysis.” We previously blogged about the GC’s memo on this issue here.

Less than one year later, in August 2018, the Board announced, and Seyfarth blogged about it here, that it would invite briefing on whether it should “adhere to, modify, or overrule Purple Communications.” The Board made this announcement in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, a pending case before the board that directly applied Purple Communications. In Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, the Administrative Law Judge had found that the employer’s policy prohibiting the use of its email systems to send non-business communications violated Section 8(a)(1) of the NLRA under Purple Communications. The employer excepted to the decision and asked the Board to overrule Purple Communications. Rather than immediately issue a decision, the Board invited the public to comment on this issue.

After extending the deadline to file briefs until October 5, 2018, nineteen amicus briefs were filed from various unions, senators, and interested groups on both sides of the issues. Notably, the GC submitted a brief urging the Board to overrule Purple Communications and return to the holding of Register Guard. The GC further urged that exceptions should be made on a case-by-case basis where the Board determines that employees are unable to communicate in any way other than through the employer’s email system. Finally, the GC argued that Register Guard should apply to other employer-owned computer resources not made available by the employer to the public.

And while five Democrat Senators recently sent a letter to NLRB Chairman John Ring expressing concern over the Board’s invitation to file briefing on the Purple Communications standard, Chairman Ring’s response letter reaffirmed the Board’s decision to reconsider Purple Communications and stated “the Board requested briefing from all interested parties to ensure we are fully informed of the arguments on all sides.”

Although the Board has yet to issue its decision, the Board’s and GC’s actions appear to signal that employers may continue to have hope about winning this battle.

 

By:  Jason Silver and Kevin Fritz

Seyfarth Synopsis: On June 6, 2018, Peter. B. Robb, General Counsel for the National Labor Relations Board (“Board”), provided employers with the first substantive guidance regarding workplace policies since the Board’s Boeing decision. General Counsel Memorandum 18-04 is a victory for employers as the Board seems to be returning to a common sense approach when evaluating workplace policies concerning on the job conduct, confidentiality, defamation, intellectual property, among other things.

Under Boeing, the Board established a new standard focused on the balance between an employees’ ability to exercise their Section 7 rights and the employers’ right to maintain discipline and productivity in the workplace. The Board broke down workplace policies into three categories:

  • Category 1 – Rules that do not prohibit or interfere with the exercise of protected rights, or the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2- Rules that the warrant individual scrutiny on a case-by-case basis and whether any adverse impact on protected conduct is outweighed by legitimate justifications.
  • Category 3 – Rules that that the Board will designate as unlawful to maintain because they would prohibit or limit protected conduct, and the adverse impact on Section 7 rights is not outweighed by justifications associated with the rule. (https://www.employerlaborrelations.com/2017/12/19/the-boards-return-to-civility-and-common-sense-regarding-workplace-rules/)

This latest memorandum adds guidance to the three categories set out in Boeing.

Category 1 Policies that are Lawful to Maintain

  • Civility rules – Rules that require courteousness in the workplace, that prohibit rude or unbusinesslike behavior and that prohibit an employee from disparaging another employee. These types of rules advance substantial employee and employer interests, including an employer’s responsibility to maintain a workplace free of harassment and violence.
  • No photography/no recording rules – Rules that prohibit photography in the workplace and that forbid recording conversations, meetings and phone calls with co-workers, supervisors, and third parties unless such recordings are approved by the Company. These type of rules advance an employer’s interest in limiting recording and photography on Company property. Be advised however, employers still must ensure that a no recording policy passes legal muster under applicable state law.
  • On the job conduct rules – Rules that prohibit insubordination, being uncooperative or otherwise engaging in conduct that does not support the employer’s goals and objectives. These type of rules allow an employer to prevent non-cooperation at work.
  • Disruptive behavior rules – Rules that prohibit boisterous or other disruptive conduct. These type of rules allow an employer to prevent dangerous conduct or bad behavior and ensure safety and productivity.
  • Rules protecting confidential, proprietary and customer information – Rules that prohibit the discussion and dissemination of confidential, proprietary or customer information. These types of rules allow an employer to protect confidential and proprietary information, as well as customer information.
  • Rules against defamation or misrepresentation – Rules that prohibit defamatory messages and misrepresent the employer’s products, services, or employees. These types of also allow an employer to protect themselves, their reputation, and their employees from misrepresentation, defamation and slander.
  • Rules against using an employer’s intellectual property – Rules that prohibit the use of Employer logos, trademark, or graphics without prior written approval.
  • Rules that require authorization to speak for the Company – Rules that prohibit employees to comment on behalf of the employer and to respond to media request only through designated spokespersons. These types of rules allow an employer to designate who should speak on behalf of the employer.
  • Rules banning disloyalty, nepotism, or self-enrichment – Rules that prohibit disloyal conduct, conduct that is damaging to the employer, and conduct that competes with the employer and/or interferes with an employee’s judgment concerning the employer’s best interests. These type of rules allow an employer to prevent a conflict of interest, self-dealing or maintaining a financial interest in a competitor. These type of rules, when reasonably interpreted, have no meaningful impact on Section 7 rights.

Category 2 Policies Warranting Individualized Scrutiny

  • Broad conflict-of-interest rules that do not specifically target self-enrichment and that do not restrict membership in, or voting for, a union.
  • Confidentiality rules that broadly encompass employer business or employee information, versus confidentiality rules specifically regarding customers and/or proprietary information.
  • Rules that disparage or criticize the employer versus civility rules that bar the disparagement of employees.
  • Rules that regulate the use of the employer’s name versus rules that regulate the use of the employer’s intellectual property.
  • Rules that restrict speaking to the media or third parties versus rules that restrict speaking to the media on the employer’s behalf.
  • Rules that ban off-duty conduct that might harm the employer versus rules that ban insubordination and other disruptive conduct while at work.
  • Rules against making false or inaccurate statements versus rules against making defamatory statements.

Category 3 Policies that are Unlawful to Maintain

  • Confidentiality rules about wages, benefits, and working conditions – The ability to freely discuss terms and conditions of employment is a cornerstone of Section 7 rights. There are no legitimate business justifications in banning employees from discussing wages or working conditions.
  • Rules against joining outside organizations or voting on matters concerning the employer – Employees have a right to join outside organizations, specifically unions. While employers have a legitimate and substantial interest in preventing nepotism, fraud, self-dealing, and maintaining a financial interest in a competitor, rules that prohibit membership in outside organizations or from participation in any voting concerning the employer unduly infringe upon Section 7 rights.

While the pendulum could swing back in a new administration, the Board’s return – at least for now – to allow employers to require employees to maintain a reasonable level of civility in the workplace is a refreshing victory for employers. Both the Boeing decision and General Counsel Memorandum 18-04 prove that the Board clearly understands that the prior Board standard laid out in Lutheran Heritage, which prohibited any rule that can reasonably be interpreted as covering Section 7 activity, was unduly burdensome, oppressive, and an operational hindrance.

Now’s a good time for employers to review their handbook policies.  If you have any questions regarding your workplace’s handbook and social media policies or practices, please contact the authors, or another Seyfarth attorney.

 

 

By Andrew R. Cockroft

Seyfarth Synopsis: On Wednesday, May 9, 2018, the Office of Information and Regulatory Affairs announced that the NLRB is considering rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act.   

NLRB Chairman, John F. Ring, announced on Wednesday, May 9, 2018, that the Board is considering rulemaking to address the standard for joint-employer status under the National Labor Relations Act.

In the announcement, Chairman Ring acknowledged the importance of the Board’s joint-employer standard as “one of the most critical issues in labor law today.”  Chairman Ring went on to address some concerns voiced by employers following the Board’s ruling in Browning-Ferris and more recently with the Board’s decision to vacate Hy-Brand, while noting the importance of the rulemaking to cure the push and pull of the Board’s recent joint-employment decisions:

The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.

Indeed, as Seyfarth has covered previously, under the existing joint-employer standard the NLRB finds that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board presently will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. This  approach, first arrived at by the Board in 2015, vastly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.

While the Board rarely has  used rulemaking to establish  standards under the NLRA, the importance of the joint-employer standard to businesses’ ability to function in the modern economy makes the issue a prime candidate for this seldom exercised power.

Any proposed rule requires approval by a majority of the Board, followed by the issuance of a Notice of Proposed Rulemaking. The Chairman’s proposal does not reflect the participation of the two Democratic Board Members, Members Pearce and McFerran.

Employers should be aware of this beneficial opportunity to affect potential joint-employment policy and be prepared to offer input on any proposed rule.

By Monica Rodriguez

Seyfarth Synopsis: Administrative Law Judge finds confidentiality work rule unlawful under new standard set forth in The Boeing Company, 365 NLRB No. 154 (2017) (“Boeing”).

Employers had hoped that the Board’s recent decision would reel in decisions concerning employer work rules.  And while it did, the recent decision in Lowe’s Home Centers, LLC and Amber Frare, makes clear that there are some work rules that will not pass legal muster.

Just last week, on April 17, 2018, Administrative Law Judge Amita Tracy ruled that Lowe’s confidentiality rules violated the Board’s new rule in Boeing.  Judge Tracy focused on the fact that the original and revised versions of Lowe’s confidentiality rules at issue prohibited employees from discussing their wages, and that employees could be subject to discipline if they violated the rules.

The problem with the confidentiality work rule was how it defined confidential information.  Specifically, the confidentiality work rule defined salary information as confidential.

Original Confidentiality Work Rule:

Confidential information includes all non-public information that might be of use to competitors of the company, or harmful to Lowe’s, its suppliers or customers, if disclosed. It includes all proprietary information relating to Lowe’s business such as customer, budget, financial, credit, marketing, pricing, supply cost, personnel, medical records and salary information.

Revised Confidentiality Work Rule:

Confidential information includes, but is not limited to:

  • Material, non-public information; and
  • Proprietary information relating to Lowe’s business such as customer, budget, financial, credit, marketing, pricing, supply cost, personnel, medical records or salary information, and future plans and strategy.

Judge Tracy discussed the three Categories outlined in Boeing, and found that Lowe’s rules fell under Category 3.  A Category 3 consists of an unlawful rule where the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  Judge Tracy made note that the Board’s example of a Category 3 was a policy prohibiting employees from discussing wages or benefits with one another.  Judge Tracy also made particular mention that the rule notified employees that disciplinary action could ensue if employees violated either versions of the confidentiality work rules.

Because the confidentiality rules prohibited employees from discussing salary information, Judge Tracy found that, per Boeing, this was a “per se unlawful [policy] bypassing the need to conduct a balancing test.”

Judge Tracy, nevertheless, engaged in a balancing test of weighing Lowe’s business interests against the charging party’s NLRA rights.  Lowe’s asserted the following business justifications for its confidentiality rules: preventing employees from engaging in insider trading; protecting competitively sensitive information; and complying with antitrust laws.  Judge Tracy was unpersuaded that Lowe’s justifications outweighed employees’ rights to discuss their wages; and thus, found the confidentiality work rules unlawful.

Although the ALJ decision is not binding, it is a reminder to employers that they should still review their policies to ensure that they will be found lawful even under the more reasonable Boeing test.  If you have any questions regarding your workplace’s rules and policies or practices, please contact the author, or another Seyfarth attorney.

By: Christopher W. Kelleher

Seyfarth Synopsis: On March 15, 2018, the Second Circuit Court of Appeals issued its decision in Novelis Corp., et al. v. NLRB, et al., upholding several unfair labor practices against Novelis Corp., but due to passage of time and changed circumstances, halting the National Labor Relations Board’s efforts to issue a Gissel bargaining order against the Company.

Background

In December 2013, aluminum manufacturer Novelis Corp. announced to employees at its Oswego, New York facility that they would no longer receive Sunday premium pay and that holiday and vacation days would no longer count towards overtime eligibility.  In response, several employees began a union organizing campaign, and obtained union-authorization cards from a majority of eligible employees.  In early January 2014, after declining the union’s request for voluntary recognition, Novelis restored Sunday and holiday pay.

In its efforts to resist organizing, the Company reminded employees that Novelis’ unionized plant in Quebec had closed while its plant in non-unionized Oswego continued to flourish.  The Company also suggested that unionization would lead to loss of business.

Novelis narrowly prevailed in the February 2014 election by a vote of 287 to 273.  After the election, pro-union employee Everett Abare posted a vulgar remark on Facebook complaining about his paycheck and criticizing those who did not vote for the union.  In response, Novelis demoted Abare.

After a hearing, Administrative Law Judge Michael A. Rosas found Novelis committed numerous unfair labor practices.  Specifically, the Company violated Section 8(a)(1) by restoring Sunday and holiday pay, removing union literature, interrogating employees, and prohibiting employees from wearing union paraphernalia.  The ALJ also found that Novelis threatened employees with wage loss, plant closure, and more difficult working conditions if they were to unionize.  Finally, the ALJ found Novelis violated Sections 8(a)(1) and 8(a)(3) by demoting Abare after his Facebook post.  The ALJ recommended several forms of relief, but most notably, he recommended a Gissel bargaining order because, in his view, “traditional remedies … would be insufficient to alleviate the impact reasonably incurred by eligible unit employees[.]”

Novelis filed exceptions with the NLRB, seeking to introduce evidence of significant employee and management turnover since the alleged unfair labor practices, and arguing that changed circumstances rendered the bargaining order inappropriate.  In August 2016, even though more than two years had passed, the Board adopted the ALJ’s findings and refused to reopen the record.  Specifically, the Board noted that it “does not consider turnover among bargaining unit employees or management officials and the passage of time in determining whether a Gissel [bargaining] order is appropriate.”

Discussion

While the Court upheld the Board’s findings as to the unfair labor practices, it disagreed as to the appropriateness of the bargaining order.  In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court held that sufficiently serious violations of the NLRA can justify an order requiring an employer to bargain with a union that did not win an organizing election.  However, the Second Circuit has “repeatedly held” that bargaining orders are a rare remedy which are warranted only when it is clearly established that traditional remedies such as a secret ballot rerun election cannot eliminate the effects of the employer’s past unfair labor practices.  Thus, employees should not have unions imposed upon them when, by exercise of their own free will, they might choose otherwise.

The Court found that the Board failed to consider changed circumstances in determining whether to hold a rerun election.  And the Court specifically disagreed with the Board’s contention that it should not consider turnover and passage of time in determining whether a bargaining order is appropriate.  Indeed, “relevant circumstances must be measured at the time of the issuance of the bargaining order and not at the time of the election.”

Several key factors led the Court to hold that a bargaining order was not a suitable remedy:  (1) Novelis took numerous remedial actions since committing the unfair labor practices; (2) two years had passed between the election and the Board’s decision, and a “substantial lapse of time casts doubt” on whether a majority of employees would choose to unionize; (3) the Board ignored key turnover in company leadership; and (4) the Board failed to consider significant employee turnover since the election.  It was thus inappropriate to impose union membership absent a finding that a new, fair election more than three years after the violations was not reasonably possible.

Key Takeaways

This case is instructive for several reasons.  First, employers should take caution when responding to organizing activity.  Novelis committed several avoidable unfair labor practices through its union avoidance techniques.  On the other hand, the case reaffirms that bargaining orders are extreme forms of relief, and should not be issued without careful consideration of whether changed circumstances render such an order inappropriate.

 

By:  Bryan R. Bienias

Seyfarth Synopsis: The Board affirms an employer’s decision to discharge an employee for engaging in dishonesty and a security breach. In the process, it clarifies the legal standards to be used when assessing whether non-verbal employee misconduct occurring in the midst of otherwise protected concerted activity loses the protections of the Act.

Background

The case, KHRG Employer LLC, 366 NLRB No. 22 (February 28, 2018), involved a Chicago-area hotel and a restaurant server who was leading an organizing drive at the property. The hotel terminated the server’s employment after he engaged in a security breach in the process of leading a delegation of nearly twenty individuals — only six of whom were hotel employees and only some of whom the server knew personally — into the non-public areas of the hotel to deliver a petition to the hotel’s General Manager. The GM’s office was located in a secure area of the hotel, behind a locked door, where the hotel stored cash, corporate checks, guest contracts, and personnel files.

Even before the server punched in a security code to gain access to the secure area, he lied to a security guard to gain entry to the hotel. After the security guard told the server that only he and a few others could come inside, the server falsely insisted that the entire delegation consisted of hotel employees who supposedly had the “right” to come in to see the GM.

While acknowledging that the server’s conduct in presenting the petition with other employees ordinarily would have been protected concerted activity under the National Labor Relations Act, the hotel nonetheless terminated the server’s employment because he engaged in a “serious security breach” by allowing unknown and unauthorized strangers into the secure area of the hotel.

The ALJ and Board Decisions

The ALJ dismissed the complaint, applying the decades-old Wright Line test to find that hotel’s decision was motivated by the server’s misconduct, not by the server’s protected concerted activity or by anti-union animus. The Board affirmed the ultimate outcome, but it declined to apply the Wright Line test. The Board noted that Wright Line was inapplicable because “when misconduct is a part of the res gestae of the employee’s protected concerted activity, the employer’s motive is not at issue.” At the same time, the Board also declined to apply Atlantic Steel, another decades-old case involving a four-factor balancing test normally applied to unprofessional verbal outbursts during otherwise protected concerted activity. The Board stated that the Atlantic Steel test was “ill-suited” to analyze misconduct “that does not occur during a workplace conversation with a supervisor or manager.”

Instead, the Board explained that, in situations involving non-verbal misconduct that is part of the “res gestae” of an employee’s protected concerted activity, it will “balance employees’ right to engage in concerted activity, allowing some leeway for impulsive behavior, against employers’ right to maintain order and respect.”

Applying this test, the Board found that the server’s conduct lost the Act’s protection.  The Board noted that the server’s conduct was not “impulsive,” but pre-meditated, and that he lied to the security guard and used a security passcode to provide unauthorized access to the secured area.

Key Takeaways

This decision should be considered a win for any employer hoping to maintain a secure facility and not have to hand over the keys (or the passcodes) to unauthorized strangers the moment employees seek to invoke Section 7 rights.

In addition, particularly given the makeup of the Board panel that decided the case (with Democrat appointees making up a majority, even during a Republican administration), this decision also should provide employers with a fair degree of going-forward legal certainty regarding the standard the Board will apply when addressing non-verbal employee misconduct that is otherwise part of protected concerted activity. That said, it remains the case that employers may not enforce their rules against misconduct more harshly against union supporters than against others or more harshly precisely because the misconduct occurred in conjunction with otherwise protected concerted activity.

 

  By: Paul Galligan, Esq. and Samuel Sverdlov, Esq.

Last month, the National Labor Relations Board (“NLRB”) vacated election results from a representation election because the Board agent opened the polling for a voting session 7 minutes late. The employer lost the election by a vote of 14-12, with one challenged ballot. However, there were 4 eligible voters (who were present in the polling location during the 7-minute delay) who did not vote in the election. Following the election, the employer filed two objections, one of which challenged the election results because the delay in voting resulted in potential disenfranchisement of a dispositive number of voters. At a hearing before a Hearing Officer, there was no evidence presented regarding either the reasons why the employees did not vote or whether any employees complained that they were prevented from voting due to the delay. Thus, the Hearing Officer overruled the employer’s objection, and the Regional Director adopted the Hearing Officer’s decision.

The employer thereafter appealed the Regional Director’s decision to the Board. In the 2-1 decision, in which Board Members William Emanuel, a Trump-appointee, and Lauren McFerran, an Obama appointee, participated in the majority, together, the Board applied the “potential disenfranchisement test” rather than the “actual disenfranchisement test” to determine whether to set aside the election. The Board majority cited Pea Ridge Iron Ore Co., 355 NLRB 161 (2001) in holding that the key issue in deciding whether to vacate the election is whether the late opening of the polls results in the “possible disenfranchisement of potentially dispositive voters.” As the Board in Pea Ridge stated:

When election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

The Board rejected dissenting Board Member and Obama appointee Mark Pearce’s contention that setting aside an election requires proof of actual-disenfranchisement. Accordingly, the NLRB vacated the results of the election and remanded the case to the Regional Director to conduct a second election.

OUTLOOK

In an era when bipartisan politics appears to be as forgotten as the film, A Bronx Tale, the Bronx Lobster decision reminds us that Republicans and Democrats can still find common ground applying hyper-technical interpretations of union election rules. Specifically, the NLRB is willing to vacate a union election when the polling began 7 minutes late! This decision serves as a valuable lesson to employers that any deviation from the union election rules could result in an election being set aside. Thus, employers should consult with experienced counsel when preparing for a union election to understand the applicable rules, select appropriate observers, and remain vigilant during the election for any irregularities.

If you have any questions please contact your local Seyfarth Shaw attorney.

Yesterday, the National Labor Relations Board (NLRB or Board) issued an Order vacating the Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in light of the determination by the Board’s Designated Agency Ethics Official that Member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding. In Hy-Brand, the NLRB had overruled its joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015),and returned to its pre Browning-Ferris test.

Under the pre Browning-Ferris joint employer test, which the Board had restored in Hy-Brand, two or more entities were deemed joint employers under the National Labor Relations Act (NLRA) if there was proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and did so directly and immediately (rather than indirectly) in a manner that was not limited and routine.

In contrast, under the Browning-Ferris test again in effect, the NLRB finds that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

As the Hy-Brand Board majority underscored, the breadth and vagueness of such a joint employer test threatens to ensnare a vast range of economic relationships, including:

  • insurance companies that require employers to take certain actions with their employees in order to comply with policy requirements for safety, security, health, etc.
  • franchisors
  • banks or other lenders whose financing terms may require certain performance measurements
  • any company that negotiates specific quality or product requirements
  • any company that grants access to its facilities for a contractor to perform services there, and then regulates the contractor’s access to the property for the duration of the contract
  • any company that is concerned about the quality of contracted services
  • consumers or small businesses who dictate times, manner, and some methods of performance of contractors

Accordingly, companies in or contemplating such relationships should account for this new development.  While it is widely expected that the Trump NLRB will eventually overrule Browning-Ferris, when that may occur is uncertain.

By Timothy M. Hoppe and Jack Lambremont

Seyfarth Synopsis: In some early spring cleaning, last week the NLRB’s Office of General Counsel released 43 memos authored by its Division of Advice meant to provide guidance to regional offices on pending charges. Here are some of the highlights that employers should not miss.

Either the General Counsel’s office has started spring cleaning a little early or it is working hard to clear its plate before spring break. Either way, last week its Division of Advice released 43 advice memoranda. The cache weighs in on a number of cogent issues, including Google’s decision to fire an employee for suggesting that men are more suited for the tech industry than women, and the lawfulness of a union’s shadow Facebook group meant to harass dissenting union members.

An arm of the General Counsel’s office, the Division of Advice provides guidance to the regional offices on how to approach difficult or novel legal issues. The General Counsel has discretion to release the memos the Division prepares after cases are closed. Although they are not binding on the Board, the memos can provide insight into the General Counsel’s priorities and approach to charges.

Here are a few highlights from last week’s wave of releases.

Google Lawfully Discharged an Employee for Violating Its Anti-Harassment and Discrimination Policies

In a memorandum issued on January 16, 2018, the Division of Advice weighed-in on whether Google violated the NLRA when it terminated an employee for drafting and circulating a document containing a number of statements suggesting that men were more suited for the tech industry than women.

After attending a summit on Google’s diversity programs, the employee authored a critique of the company’s inclusion initiatives, which included statements attempting to rationalize the gender gap in the tech industry and at Google using gender stereotypes. The document also accused Google of not tolerating certain types of political views. The employee posted versions of the document on a couple of internal, company-sponsored discussion groups. A number of coworkers complained about the postings and, according to the advice memo, a few employment candidates withdrew from consideration due to the posts.

After an investigation, Google concluded that the employee violated Google’s anti-harassment and discrimination policies, and discharged the employee. In explaining its rational to the employee, Google stated that it based the decision solely on the employee’s comments regarding gender stereotypes. It was not based in any way on the employee’s discussion of training programs or Google’s treatment of differing political views. Google also sent a company-wide email echoing these points.

The Division of Advice acknowledged that much of the content of the employee’s memorandum likely constituted protected, concerted activity (such as criticisms about Google’s culture and training). Nevertheless, the discharge did not violate the Act. The memo noted that the Act does not protect conduct creating a hostile work environment, or constituting racial or sexual discrimination. The employee’s comments about gender stereotypes constituted this type of unprotected conduct. The Division also concluded that Google only terminated the employee’s employment for the unprotected conduct. The company’s termination memo and company-wide email were enough to demonstrate that Google did not consider the protected portions of the employee’s posts. Accordingly, the Division of Advice advised the region to dismiss the charge.

Employee Benefits PowerPoints Helped Create a Binding Contract Term

The Division of Advice concluded in a November 7, 2017 memo that a charge should issue against an employer for failing to bargain before rescinding an Employee Stock Purchase Plan (ESPP) for union members.

The memo concerns union employees at a chemical facility in Kentucky that employed both union and non-union workers. The ESPP was not an express term in the union’s CBA. However, in late 2016, the employer gave a number of power point presentations to both union and non-union employees indicating that all employees were eligible for the benefit. The union and employer also discussed the ESPP on a few occasions, and the employer held it out to the union as a potential offset to its proposed health insurance premium increases. Nevertheless, shortly before opening enrollment to the ESPP, the employer notified the union that bargaining unit employees were not eligible for the benefit.

The Division of Advice concluded that the employer’s “initial announcements of the ESPP to unit employees and reinforcing representations to [u]nion officials established a term and condition of employment.” Although the employer rescinded the purported contract term before it was implemented, the Division concluded that the employer’s statements alone had “established the ESPP as an employment term the unit employees reasonably expected.”

Franchisor Not Liable for Social Media Policies Adopted By Franchisees

On September 21, 2017, the Division of Advice determined that Subway could not be liable for its Franchisees’ use of a corporate social media policy Subway authored because Subway did not require the franchisees to adopt it.

Subway created the social media policy and made it available to its 26,000 franchisees through the company’s internet portal. On a few occasions, the company encouraged the franchisees to use the policy, but the company never required them to adopt the policy.

Phoenix’s Region 28 determined that the Subway policy was overly broad and discriminatory, and sought advice on whether it could hold Subway liable for the franchisees’ violations. The Division did not consider the policy’s legality (for a summary of the Board’s new, more moderate position on handbook provisions click here); it only considered whether a franchiser could be liable for its franchisees’ use of the policy.

The Division noted that companies may be liable for other employers’ violations of the Act if the company directs other employers with whom it has business dealings to engage in the unlawful conduct. Here, however, the Division concluded that it could not prove that Subway directed its franchisees to adopt the social media policy. Subway only recommend, encouraged, and asked the franchisees to consider adopting it. It did not track which franchisees had downloaded the policy, did not punish franchisees for not adopting the policy, and only a couple hundred franchisees actually adopted it. Accordingly, the Division recommended dismissing the charge against Subway, provided it was not first withdrawn.

Union’s Shadow Facebook Group Violated the NLRA

A shadow Facebook group started by Teamsters Local 610 violated the NLRA, according to an advice memo issued on September 21, 2017.

The Facebook group was created by union leadership during contract negotiations in response to a union member’s complaints about the composition of the union’s bargaining team, and terms the team was negotiating for some union members. The union excluded the member and his supporters from the Facebook group. It also posted a number of derogatory statements directed at the member to the Facebook page.

The Division of Advice concluded that the union’s Facebook group violated the Act for two reasons. First, the union created it to restrain and coerce dissenting members to refrain from exercising protected Section 7 activities. As the Division noted, although many of the comments may have been trivial and immature, they were “nonetheless deliberate and otherwise unprovoked acts made in direct response to the [members’] protected activity.” Thus, they were meant to exclude, ostracize, and humiliate the members. The Facebook group also violated the Act because the union unlawfully denied the dissenting members access to the group based solely on their disagreement with the union. The Division equated this to restricting access to a union bulletin board, which violated employees’ Section 8(b)(1)(A) rights.

As a remedy, the Division of Advice recommended requiring the union to (1) remove all offensive posts from the Facebook page; (2) pin a notice to the top of the page as a notice of improper conduct; and (3) invite all union members to join the Facebook group.

 

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By:  Jaclyn W Hamlin

Seyfarth Synopsis: The business community has another opportunity to convince the NLRB to rescind the expedited election rules that have been wreaking havoc on workplaces since 2014, after the agency extended the public comment period to March 19, 2018.

In the fast-paced, ever-changing world of NLRB precedent and procedures, April of 2015 seems like an eternity ago.  Nearly three years ago now, the Board under President Obama implemented new expedited election rules which overhauled the Board’s existing representation case procedures.  The rules, which many employers came to call the “ambush” or “quickie” election rules, shortened the time for pre-election hearings; required rapid filing of a pre-hearing position statement and preliminary voter list (and deemed any issues not raised by the employer in the position statement waived); vested more discretion in regional directors, including giving the regional director the authority to determine whether parties could file post-hearing briefs; imposed new Excelsior list requirements including an earlier submission date; and required earlier elections with limited to no right to NLRB review of post-election disputes.  Unsurprisingly, employers were alarmed by the new rules, which placed management on the defensive with only a short period of time to make the company’s case to employees considering unionization.

With the change in Presidential Administrations, and accompanying changes in the makeup of the Board, NLRB-watchers have already seen more business-friendly policies begin to fall into place – and there is a chance that representation case procedures could be among them.  In December of 2017, the Board published a notice in the Federal Register asking for public comment on three questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations?  If the Board should make changes to the prior Representation Election Regulations, what shoul be changed?

The comment period was originally set to expire on Monday, February 12, 2018, but in late January the Board issued a press release informing the public that “to aid in the consideration of the issues involving the 2014 Election Rule,” the Board would extend the public comment period through Monday, March 19, 2018.  The Board did not explain its reasoning in extending the public comment period, but it is possible that it concluded that more comments would help it to reach the most fully-informed decision about the fate of representation case procedures.

With this extension, the business community has another chance to make its views known to the Board about the fairest and most efficient way to conduct union representation elections.  The public comment period is an opportunity to draw the Board’s attention to the real impact that representation case procedures have on employers of all sizes and industries – before the Board turns its attention to other matters and the opportunity to regain sanity in union elections is relegated to the back-burner.