Protected Concerted Activity

By: Ashley Laken, Esq. & Brian Stolzenbach, Esq.

Seyfarth Synopsis: Although many employers may think they can let their guard down a little bit when it comes to the NLRB under the Trump Administration, history suggests otherwise. During the last Republican Administration, labor unions often decided to wage their battles outside the NLRB, using tactics like the “corporate campaign.” Although corporate campaigns have been around for a long time and continued even during the Obama Administration, union corporate campaign activity during the Bush Administration suggests that employers would be well advised to implement strategies aimed at reducing their vulnerability to such campaigns and effectively responding to such campaigns in the event they become a target.

When the NLRB shifts from Democrat control to Republican control, as it has under the Trump Administration, many employers rejoice, believing that a Republican-controlled NLRB will take a more employer-friendly approach. This is almost certainly true, but employers should keep in mind that appeals to NLRB intervention are not the only ways for unions to create incredible headaches for employers.

Background on Corporate Campaigns

A corporate campaign is an attack by a union on a company or an industry with the goal of putting so much pressure on the target that it will give in to the union’s demands. Such attacks are multi-pronged and often long-running. Indeed, unions have devoted millions of dollars and multiple years to individual corporate campaigns, and such campaigns have become more sophisticated and coordinated over the years. The typical union philosophy in launching such a campaign is to cost an employer so much time and money and cause it so much disruption that it ultimately gives in to what the union wants.

A corporate campaign’s most common objective is to facilitate union organizing, often by coercing an employer into accepting a card-check agreement along with neutrality commitments (in other words, to agree to recognize the union without a formal election and to stay silent on its views regarding the unionization of its workforce). Corporate campaigns are widely known as a means of organizing workers by disorganizing companies.

In launching a corporate campaign, a union identifies and then exploits a company’s perceived vulnerabilities. Common tactics unions employ in corporate campaigns include:

  • Filing a stream of unfair labor practice charges against the company
  • Encouraging investigations of potential OSHA, wage and hour, environmental, and/or antitrust violations by the company (see our recent management alert regarding antitrust enforcement against employers here)
  • Causing union-paid organizers to get jobs within the company (known as “salting”)
  • Placing print, digital, radio, and/or TV ads attacking the company, establishing anti-company websites, and distributing anti-company materials (including emails and social media messages) to customers, shareholders, and employees
  • Introducing shareholder resolutions aimed at reducing management’s independence
  • Challenging the zoning or permitting of new company facilities
  • Alleging or implying sexual misconduct by company executives or claiming that the company does not pay its employees fairly (the #metoo and #timesup movements are likely to add more fuel to any such fire)
  • Recruiting celebrities, politicians, clergy, and other community leaders to put pressure on the company

A variety of unions have launched a multitude of corporate campaigns over the years, and they often team up with each other and pool their resources against a single company. Collectively, unions employ hundreds of professional corporate campaigners, with job titles such as “online advocacy organizer” and “strategic communications specialist.” The typical position postings for such jobs list responsibilities that include developing campaign strategies and messages, conducting online research, and executing effective media plans. Given the growing presence of Millennials in the workforce, a group that (broadly speaking) considers itself both technologically savvy and socially conscious, unions are likely to have no shortage of candidates for such positions.       

What Employers Can Do

Companies of all sizes, in all locations, and in all industries are potentially vulnerable to corporate campaigns. Of course, the larger the company, the more attractive that company may be as a target, as more employees equals more potential revenue from union dues. In reality, however, almost no relatively large company is safe from such an attack.

Given the power of the internet and the ubiquity of social media platforms such as Facebook, Snapchat, Twitter, and Instagram, the speed with which unions can launch and carry out sophisticated and well-coordinated corporate campaigns is nothing short of astounding. Employers would be well-advised to proactively develop strategies aimed at reducing their vulnerability to such campaigns and quickly and effectively responding to such campaigns. Such strategies could include:

  • Conducting OSHA, wage and hour, and antitrust compliance audits
  • Engaging in positive employee relations training and messaging
  • Conducting up-to-date anti-harassment training
  • Evaluating pay equity within the company
  • Creating an effective internal and external communication system in relation to potential and actual union activity
  • Assembling a dedicated team of inside or outside counsel to respond to filings at the NLRB, such as unfair labor practice charges and representation petitions

Seyfarth lawyers have extensive experience devising and implementing strategies designed to avoid and effectively respond to corporate campaigns. Please don’t hesitate to contact your favorite Seyfarth attorney for more information.

By: John J. Toner, Esq.

Seyfarth Synopsis: In a decision issued late last week, The Boeing Company, 365 NLRB No. 154 (Boeing), the newly constituted “Trump” National Labor Relations Board (“Board”) announced that employers could once again maintain common sense rules regarding employee conduct at the workplace.

Of all the decisions issued in recent years by the previous Board, none was more baffling than those regarding an employer’s required standards of employee conduct contained in employee handbooks. These decisions were premised on a 13-year old decision in Lutheran Heritage Village-Livonia (Lutheran Heritage) which held that, in addition to an employer’s policy being found unlawful if it explicitly restricted protected, concerted activities under Section 7 of the National Labor Relations Act, a policy would also be found unlawful if :

  • employees would reasonably construe the language to prohibit Section 7 activity,
  • the rule was promulgated in response to union activity, or
  • the rule has been applied to restrict the exercise of Section 7 rights.

The Obama Board used the first test (how would employees “reasonably construe” the language of a policy) to invalidate numerous common sense policies, such as requiring employees not to engage in conduct that impedes “harmonious interactions or relationship” or prohibiting “abusive or threatening language to anyone on company premises.” The Board found these and other policies to be illegal without taking into account an employer’s legitimate justifications or the “real-world complexities” in a workplace.

To further complicate matters, the Obama Board sometimes found policies with the same objective (civility in the workplace) to be lawful. The byzantine nature of these decisions made it nearly impossible for an employer to maintain policies regarding employee conduct with any assurance that the Board would find the policies to be lawful.

In the Boeing decision, the Board majority (Chairman Miscimarra, and Members Emanuel and Kaplan), over a strong dissent (Members Pearce and McFerran), thankfully overruled the Lutheran Heritage “reasonably construe” standard and established a new test for evaluating whether a facially neutral policy, rule, or handbook provision, when reasonably interpreted, would interfere with employee Section 7 rights. Specifically, the Board in evaluating a policy will seek to strike a proper balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer’s legitimate justifications associated with the rule.

To provide greater clarity to all parties, the Board’s majority announced that, in the future, it will analyze the legality of workplace policies based on three categories:

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, and thus no balancing of employee rights versus employer justification is warranted; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. The Board gave as an example under Category 3 a policy prohibiting employees from discussing wages or other working conditions.

The Board specifically highlighted as examples of policies that would be legal under Category 1, including policies requiring employees to foster “harmonious interactions and relationships” or “rules requiring employees to abide by basic standards of civility,” and overruled previous cases that held to the contrary.

To be sure, there will be some confusion and issues to be addressed as the newly-announced categories are applied to employee handbook policies, but what is certain is that employers can once again lawfully require that employees maintain a reasonable level of civility in the workplace.

 

 

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

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, & here to find prior posts.

In Banner Health Systems, 362 NLRB No. 137 (June 26, 2015) (originally decided in 2012 and reaffirmed upon remand following Noel Canning), one of the Obama Board’s more overreaching decisions, the 2-1 Board majority found that the employer unlawfully maintained a policy of asking employees during investigatory interviews not to discuss the internal investigation with others.  The Board majority did so based on testimony by a human resources investigator, who asked an employee not to discuss the on-going investigation with anyone, and the fact that the investigator sometimes used a checklist form that contained this point.  The investigation did not even involve Section 7 activity, but the majority nevertheless reasoned that employees could reasonably construe this refrain as impeding their Section 7 rights.

The Board majority proceeded from there to announce a new rule prohibiting employers from promulgating general rules barring employees from discussing ongoing investigations. The Board majority provided limited exceptions if witnesses needed protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there was a need to prevent a cover up.  (On appeal, the DC Circuit remanded this part of the ruling back to the Board based on the lack of substantial evidence.)

As it stands, the Banner Health Systems rule and the limited exceptions have made it virtually impossible for employers to create meaningful guidelines for internal investigators to instruct employees on the confidentiality of investigations.

The lengthy but sharp dissent from Phil Miscamarra provides an indication of how the new Trump Board and the Division of Advice will review Banner Health Systems.  Yesterday’s decision in Boeing Company (3-2 decision overruling the “reasonably construe” standard of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) makes it a racing certainty that the Obama Board decision in Banner Health Systems will no longer fly.

Should you have any questions about a current or proposed confidentiality policy, or requiring confidentiality during internal investigations, please contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team to be sure your company’s approach passes legal muster under current law.

  By: Kyllan Kershaw, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, & here to find prior posts.

While many employers were surprised by the Obama Board’s inability to overturn IBM Corp.,  341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees, the Obama Board powerfully expanded the scope of Weingarten rights in a number of areas, including significantly diminishing a unionized-employer’s ability to conduct reasonable suspicion drug testing in Manhattan Beer Distributors, 362 NLRB No. 192 (2015).  In Manhattan Beer, the Obama Board majority ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.  Member Johnson’s dissent outlines the numerous ways in which the decision substantially interferes with an employer’s interest in maintaining a safe and drug-free workplace.

The Obama Board likewise expanded Weingarten rights beyond any prior precedent in Howard Industries, Inc., 362 NLRB No. 35 (2015), broadening the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.  In Fry’s Food Stores, 361 NLRB No. 140 (2015), the Obama Board bolstered Weingarten rights further by finding that Weingarten requires that an employee has the right to consult with a union representative not only during the investigatory interview but also before the interview, even without the employee requesting such a meeting.

Fortunately for employers, in GC Memo 18-02, the NLRB’s new General Counsel previews that the General Counsel’s office will seek to nip the Obama Board’s Weingarten overreach in the bud, requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.  The new General Counsel also rescinded the initiative to overturn IBM Corp. and extend Weingarten rights to non-union employees.

The General Counsel’s change in direction on Weingarten rights is certainly a gift to employers, but GC Memo 18-02 leaves one notable Weingarten decision on the nice list.  Specifically, the GC Memo fails to mention the Obama Board’s controversial decision in E.I. Dupont de Nemours & United Steel Workers Local 699 to allow dishonest employees to receive reinstatement with backpay if an employer violates his or her Weingarten rights, effectively receiving “get out of jail” free cards for any misconduct that occurs during an unlawful interview. 362 NLRB No. 98 (2015).  Alas, while GC Memo 18-02 previews many long-awaited gifts to employers, the Trump Board’s revisiting of E.I. Dupont remains on every unionized-employer’s holiday wish list.  Maybe next year.

  By: Christopher W. Kelleher, Esq. & Danielle A. Vera, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here & here to find prior posts.

In April and August of this year, the Second and the Eighth Circuit Courts of Appeals affirmed two Board rulings and held that under certain circumstances even extremely vulgar or racially bigoted speech fall within the protections of the NLRA. In Memorandum GC 18-02, the new General Counsel has signaled his interest in reconsidering the analysis in these cases, and narrowing the outer boundaries of speech protections afforded by the Act. Importantly, this is an opportunity for the Trump Board to change direction regarding the application of the Atlantic Steel factors to social media cases.

In Pier Sixty, an employee was terminated for posting the following on Facebook regarding his supervisor Bob: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.” NLRB v. Pier Sixty, LLC, Case No. 15-1841 (2nd Cir. Apr. 21, 2017). The employee posted this online during an authorized break only two days before a contentious union election. Ultimately the ALJ, the Board and the Second Circuit agreed that the vulgar language did not push the comment outside of the NLRA’s protected speech. For a more detailed discussion of this case, Click here.

In Cooper Tire & Rubber Co., the ALJ, Board, and Eighth Circuit agreed that a picketer’s racially bigoted comments toward African-American replacement workers did not provide the Employer with “just cause” to terminate him. Cooper Tire & Rubber Co. v. NLRB, Nos. 16-2721, 16-2944 (8th Cir. Aug. 8, 2017). The picketer shouted at a van full of African-American replacement workers, “Did you bring enough KFC for everybody?” and asked other picketers if they could “smell fried chicken and watermelon” as the van passed by. The Eighth Circuit held that because the speech was merely offensive and not actually threatening, it was protected.

Although the new General Counsel’s Advice memorandum signals that change related to the outer bounds of NLRA-protected speech is on the horizon, until any change is made, Employers should remain vigilant regarding the NLRB’s current position but look forward to potential changes coming in 2018.

 By: Karla E. Sanchez, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, & here to find prior posts.

In GC Memo 18-01, the newly appointed General Counsel listed cases concerning no cameras and recording rules as requiring submission to the Division of Advice for consideration as to whether the GC “might want to provide the Board with alternative analysis.” The GC also cited to Purple Communications, 361 NLRB 1050 (2014).  The GC’s inclusion of Purple Communications in its Memo suggests that the GC may disagree with the Obama Board’s decision.

In Purple Communications, the Board majority ruled that employees who have access to an employer’s email system as part of their job, may during non-working time use the email system to communicate about their wages, hours, working conditions, other terms and conditions of employment, and union issues. Then Member Miscimarra and former Member Johnson dissented.

In Purple Communications, the Company had an “Internet, intranet, Voicemail, and Electronic Communications Policy” that only allowed the use of company owned electronic equipment and systems, including email, for business purposes. The Communications Workers of America union filed the charge alleging that the prohibition interfered with employees’ Section 7 rights. The Union prevailed. Notably, the ruling overturned the Board’s 2007 decision in Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) (“Register Guard”), which held that employees have no statutory right to use their employer’s email systems for organizing or for discussing wages or other terms and conditions of employment.

In their separate dissents, Miscimarra and Johnson articulated various reasons for their disagreement with the Board’s majority. For example, Miscimarra articulated four main concerns and reasons for his dissent:

  • That the Board’s decision “Improperly presumes that limiting an employer’s email system to business purposes constitutes ‘an unreasonable impediment to self-organization.’”
  • That the Board’s decision failed to balance NLRA protections for employees and employers’ property rights.
  • That the Board’s decision significantly affects other legal requirements including well-established legal principles under the NLRA. For example, Miscimarra articulated that employers, unions, and employees would have problems exercising the right to use email systems with other NLRA principles and rights such as the prohibition on surveillance of employees’ protected activities, the Board’s axiom that working time is for working, and employers’ right to restrict solicitation during working time.
  • That the Board’s decision replaced a “longstanding rule that was easily understood,” causing instability, confusion, and uncertainty.

The Purple Communications decision has been viewed by many employers as a taking of employer’s private property. Given the GC’s inclusion of Purple Communications in its GC Memo, there is hope for employers in 2018 that the Obama Board’s deviation from its precedent in Register Guard may be reconsidered under the Trump Board.

 

  By: Michael Rybicki, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo setting forth a wide range of issues that must be submitted to Advice before Complaints will be authorized. Generally these issues involve areas of the law where the “Obama Board” issued decisions departing from previously established precedent. The memo strongly suggests that instead of declining to exercise prosecutorial discretion not to issue Complaints where the General Counsel disagrees with the legal principles announced in these decisions, he intends to given the newly constituted Board the opportunity to assess these legal principles as the opportunity arises. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Today’s blog looks at controversial changes with respect to work stoppages. Click here, here, & here to find prior posts.

In Quietflex Manufacturing, 344 NLRB 1055 (2005), Member Liebman dissented from a decision that an employer did not violate the Act by discharging 83 employees for refusing to vacate its parking lot where those employees had engaged in a peaceful 12-hour work stoppage to protest their terms and conditions of employment. The majority had held that under relevant precedent, while an on-the-job work stoppage can be a form of economic pressure protected under Section 7 of the National Labor Relations Act, not every such work stoppage is protected and that “[a]t some point an employer is entitled to exert its private property rights and demand its premises back,” citing Cambro Mfg. Co., 312 NLRB 634, 635 (1993). Applying a 10-factor test,[1] the majority determined that in balancing employee interests against the employer’s property interests, the employer’s interests prevailed. In her dissent, Member Liebman asserted that the balance struck by the majority seemed unreasonable and implicitly argued that heavier weight should have been given to those factors that tended to favor protection.

Member Liebman’s views were essentially adopted by the Obama Board in a series of cases, Los Angeles Airport Hilton Hotel & Towers, 360 NLRB 1080 (2014), enf’d Fortuna Enterprises, LP v. NLRB, 789 F.3d 154 (D.C. Cir., 2015); Nellis Cab Company, 362 NLRB No. 185 (2015); and Wal-Mart Stores, Inc., 364 NLRB No. 118 (2016). In each of these cases the majority purported to apply the Quietflex multi-factor balancing test and found that the activity at issue was protected. While Member Johnson concurred with the result in Los Angeles Airport Hilton, he disagreed with respect to several aspects of the majority’s analysis of the Quietflex factors, particularly with respect to the failure of the majority to give what he considered to be proper weight to the employer’s open door policy as an alternative means for employees to present their grievances.

In dissenting in part in Wal-Mart, Member Miscimarra found that the activity in question constituted a modern day sit-down strike and on-premises protest by employees inside a retail store before and during the store’s grand reopening that was clearly unprotected under the “disruptive or interference standard” applicable in a retail setting, citing Restaurant Horikawa, 260 NLRB 197 (1982). He further noted that even assuming that the Quietflex factors were applicable, he disagreed with the majority’s analysis under the Quietflex standards. The essence of his disagreement, set forth in a lengthy and detailed dissent, was that the majority had either misapplied the standards or misconstrued or given inappropriately heavier weight to those factors that tended to favor protection.

For example, with respect to the third Quietflex factor, whether the work stoppage interfered with production or deprived the employer access to its property, contrary to the majority’s conclusion that this factor favored protection, Member Miscimara believed this factor “weighs against protection and does so heavily.” (Slip op. at p. 15.) In his opinion, the record clearly established that “the employees’ actions caused substantial disruption and interference, including an adverse impact on customers.” (Id.)

In our view, Member Miscimara’s views with respect to the applicability and construing of the Quietflex standard and the weight to be given the various factors is better reasoned from both a legal and practical perspective. General Counsel Robb’s memo suggests that he may agree, possibly giving employers – and particularly retail employers – something to look forward to in 2018.

[1] The 10 factors applied in Quietflex were: (1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether employees attempted to seize the employer’s property; and (10) the reason for which employees were ultimately discharged [disciplined].

 By: Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

With the publication of Friday’s General Counsel Memorandum (GC Memo 18-02), employers may finally begin to see a much-anticipated shift at the NLRB that many have been waiting on since last year’s election.

Of particular concern for many employers is the NLRB’s interpretation of commonplace work rules contained in employee handbooks. According to newly appointed General Counsel Peter Robb, cases involving some potentially unlawful handbook rules must now be submitted to the Division of Advice.  In particular, GC Memo 18-02 notes that the Division of Advice is interested in cases involving certain rules prohibiting disrespectful conduct, rules prohibiting use of employer trademarks and logos, and no cameras/recording rules.

Perhaps most notably, GC Memo 18-02 expressly rescinds the prior General Counsel guidance concerning employer work rules contained in GC Memorandum 15-04. There, former General Counsel Richard Griffin offered thirty pages of guidance on potentially unlawful workplaces rules under the Board’s standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

This standard has been criticized in a number of recent dissents, including a lengthy critique by Chairman Miscimarra in William Beaumont Hospital, 363 NLRB No. 162 (2016) (see post here). There, then Member Miscimarra advocated for entirely abandoning the Board’s standard in Lutheran Heritage under which the Obama NLRB greatly expanded the scope of workplaces rules considered to be unlawful under the NLRA.

Lutheran Heritage provides that a facially-neutral rule that does not expressly restrict Section 7 activity, was not adopted in response to Section 7 activity, and has not been applied to restrict Section 7 activity, may still be unlawful if employees would reasonably construe the rule as restricting Section 7 activity. In William Beaumont, Chairman Miscimarra suggested that an alternative approach would be to evaluate facially-neutral rules on “(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.”

In GC Memo 18-02, the General Counsel appears to suggest that he may support Chairman Miscimarra’s proffered test. The General Counsel specifically notes that the Division of Advice is interested in any cases in which the outcome would be different under the Chairman’s analysis in William Beaumont. The full implications of Chairman Miscimarra’s proposed test for handbook provisions is unknown. What we can say for sure is that the Chairman sees value in the publication of workplace rules and policies and that he has advocated for predictability and practicality, music to many employers’ ears.  With the General Counsel in place and a full five-member Board confirmed by the Senate, employers may have additional reasons to look forward to 2018.

  By: Brian Stolzenbach, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.

In keeping with the tradition of prior General Counsels (see here (GC 16-01), here (GC 14-01), and here (GC 11-11) for prior memos from President Obama’s appointees), Mr. Robb provided the NLRB’s Regional Offices with a list of issues that must be submitted to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case. Although the Regional Offices are instructed to issue complaints in accordance with extant law (i.e., the law created by the NLRB during the Obama Administration), Mr. Robb suggests that he “might want to provide the Board with an alternative analysis.” As usual when the General Counsel’s office flips from Democrat to Republican or vice versa, the memo basically provides a list of important case law developments from the prior administration that are likely to be overturned. Here, Mr. Robb identifies nearly 30 such cases covering 15 important subjects for employers.

In addition, Mr. Robb immediately rescinds seven prior memos issued by President Obama’s appointees and revokes five initiatives set forth in other memos issued by the General Counsel’s Division of Advice during the Obama Administration.

As the numbers above suggest, a full explanation of Mr. Robb’s five-page memo is far more than a single blog can handle. Seyfarth Shaw labor lawyers will be posting an item on this blog each weekday for the next three weeks, exploring a different aspect of the memo each day.

P.S. If you just can’t wait and need a full and complete analysis of the memo more quickly, don’t hesitate to drop your friendly neighborhood Seyfarth labor lawyer a note. Any of us would be glad to oblige.

 

Texting  By: Jennifer M. Holly, Esq.

Seyfarth Synopsis: The Second Circuit agrees with the Board that the use of profanity in a Facebook post was not “opprobrious enough” to lose the NLRA’s protections and justify the employer’s termination of the employee.

A server whose “conduct [sat] at the outer bounds of protected, union-related comments” when he posted that his manager is a “nasty mother f***er” and “f*** his mother and his entire f***ing family,” was not “opprobrious enough” to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in NLRB v. Pier Sixty, LLC, No. 15-1841 (2nd Cir. Apr. 21, 2017).

Pier Sixty operates a catering company in New York, NY. In early 2011, many of its service employees began seeking union representation.  Following a very contentious union organizing campaign, Pier Sixty employees voted to unionize on October 27, 2011.

Two days before the election, during the work day, a Pier Sixty supervisor gave employee Perez and two other servers instructions, which the Board’s opinion described as “harsh tone,” and included the following instructions: “stop chitchatting” and “spread out, move, move.” Approximately 45 minutes later, Perez, upset by the “continuing disrespect for employees,” wrote the following Facebook post about the supervisor during an authorized break:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was publicly accessible and Perez knew that his post would be visible to his coworkers. Perez removed the post three days later. Management, however, had already become aware of the post, and after an investigation, the employer terminated Perez on November 9, 2011.

Perez filed an NLRB charge alleging retaliation for engaging in protected concerted activities. On April 18, 2013, the ALJ issued a decision finding that Pier Sixty had violated sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for his protected activity. Pier Sixty filed exceptions, and a three-member panel of the NLRB affirmed the ALJ’s decision on March 31, 2015.  The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review.

The Second Circuit affirmed the NLRB’s determination based on the deference afforded to the ALJ’s factual findings. The Court explained that in light of the General Counsel’s guidance for evaluating employees’ use of social media to post public criticisms of their employers and workplaces, a nine-factor “totality of the circumstances” test in social media cases had emerged.  The Court acknowledged that while the test the ALJ applied may not have “adequately balance[d] the employer’s interests, Pier Sixty did not object to the ALJ’s use of the test in evaluating Perez’s statements before the Board.”   Accordingly, the Court did not address the validity of the applied test.

Rather, Pier Sixty argued that the Board’s decision that the comments were not so egregious as to exceed the Act’s protection was not supported by “substantial evidence” in the record. The 2nd Circuit disagreed and found:

  • Although the post contained vulgar attacks, the subject matter of the message included workplace concerns.
  • Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election.
  • The location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.

Accordingly, the Court found that the Board did not err in ruling that the post, while “vulgar and inappropriate,” was not so egregious as to exceed the NLRA’s protection.

Takeaways for Employers:

  • The Board will not apply the Atlantic Steel test to cases involving social media, even if the posts are public in nature, in light of the fact that the place of discussion is the internet and not face-to-face in the workplace.
  • Companies should ensure policies and handbooks comply with the NLRB’s current guidance on social media and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should not hesitate to enforce those policies in appropriate circumstances.
  • Employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.