The NLRB Has Been a Busy Bee in February

Even though this winter’s snow has paralyzed much of the economy, the NLRB has been busy in the nation’s capital planning their next moves to expand union membership. Most recently, the NLRB has invited amicus briefs in a representation case concerning “whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.”  According to the NLRB’s website, “the Service Employees International Union, Local 925 filed a petition to represent a unit of all non-tenure-eligible contingent faculty who taught a certain number of hours” at a Lutheran college.  The Board has also again proposed amending the rules governing union elections.  The proposed rules are virtually identical to the rules it proposed in 2011, but were struck down by the federal courts due to the Board lacking a required quorum.   The proposed rules are described as eliminating unnecessary litigation and delay, but have been objected to on the grounds that it limits an employer’s opportunity to object to the scope of the proposed bargaining unit.  Various  groups have been referring to this rule as authorizing  expedited, ambush or quickie elections.

For example, a labor union will typically seek in its representative petition to define a bargaining unit that closely approximates the employees it has already recruited (and are likely to vote “yes” in an election) and will seek to exclude employees who have rejected its recruitment (and are likely to vote “no” in an election) even if those excluded employees share a community of interest with the employees in the proposed bargaining unit and should be included under existing NLRB rules.  This is referred to as “cherry picking.”   Employers generally want to include the excluded employees in order to increase the chance that the union will lose the election vote.  The rules being proposed by the NLRB only give employers the right to object to the scope of the proposed bargaining unit within 7-14 days of when the petition was filed and only if the challenged scope affects at least 20% of the proposed bargaining unit.  Otherwise, the employer cannot object until after the election has been held (and, even then, it seems discretionary whether the appeal will be considered at a higher level).  Elections which used to occur about six weeks after the filing of a representation petition may occur within 20 days under the proposed rule.  Obviously, this leaves an employer with far less time to communicate information (or propaganda) concerning a union election with the employees, even though the union has likely spent months organizing the employees and imparting only its propaganda.   In other words, the proposed rules will deny the employees the opportunity to make an informed decision after hearing from both sides in the election.

The proposed rules also expands the information which employers must provide to a union about its workforce from names and home addresses to also include telephone numbers, email addresses, shifts, work locations, etc.   In other words, the employer is required to share more personal information about its employees with the union.

The NLRB is also inviting amicus briefs in an unfair labor practice case concerning the standard the Board should apply in deferring to arbitration decisions.  The NLRB’s General Counsel seeks to change the existing standard.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Notice Posting Rule Is Finally Put to Rest for Most Employers

On Monday, January 6, 2014, the NLRB announced that it had decided not to appeal to the Supreme Court the decisions of the D.C. and Fourth Circuit Courts of Appeal invalidating its controversial proposed rule from August 2011 to require most private sector employers to post notices informing employees of their rights under the NLRA.  The Board’s deadline to appeal the court decisions had been January 2, so the announcement was not a complete surprise.  Notwithstanding this development, the Board continues to legally post the notice on its website for employees to view and has also created a free mobile app (for iphone and Android users).  Moreover, these court decisions (finding that the proposed rule violated employers’ free speech rights under the NLRA) do not affect the obligation of government contractors to post the same notice under Executive Order 13496 because that Order was not promulgated under the authority of the NLRA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Avoids Noel-Canning Challenge and Finds RN Charge Nurses are Supervisors When They Issue Progressive Written Warnings.

Yesterday, a divided Sixth Circuit Court of Appeals reversed a finding of the NLRB Regional Director and concluded that registered nurses employed as charge nurses by a nursing home employer were statutory supervisors and not entitled to bargain with the employer under the NLRA.   GGNSC Springfield LLC v. NLRB, No. 12-1529 (6^th Cir. 6-2-13).  The Court side-stepped considering a belated Noel-Canning challenge to the Board’s jurisdiction because it was not raised until after briefing had been completed on the substantive issues, because it was not a jurisdictional challenge which the Court was compelled to consider even when it was not raised below, and because it decided to resolve the case on non-constitutional grounds in favor of the employer.  Instead, it found that the RNs exercised independent judgment in issuing disciplinary written warnings under the employer’s progressive disciplinary policy.  This evidence was sufficient to show that they were statutory supervisors.

Two charge nurses were responsible for overseeing 2-6 certified nursing assistants on each shift and reported disciplinary matters to the Director of Nursing.  The 12 RNs were organized by the IAM and petitioned for collective bargaining.  The Regional Director found they were not supervisors and the Board ordered the employer to bargain.  When the employer refused to bargain, the Court was petitioned for review and cross-petitioned for enforcement.

Under the NLRA, only employees have the right to bargaining collectively.  This does not include supervisors, which are defined as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Under NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001), “individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a

merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.”

 The employer argued that its RNs are supervisors because they have authority to discipline, assign, and responsibly direct CNAs, all by using independent judgment.

The Regional Director found that the RNs did not have authority to discipline, other than sending CNAs home for the rest of their shift for egregious violations and flagrant misconduct.  This, by itself, does not constitute independent judgment or establish supervisory authority.  Moreover, when confronted with a disciplinary infraction, RNs could ignore it, provide verbal counseling or draw up a written memorandum.  However, a verbal counseling is educational, and not disciplinary in nature.  Therefore, issuing verbal warnings does not show that RNs are exercising disciplinary authority.

 Nonetheless, the evidence established that the RNs exercised more authority than this because, as mentioned, they had the authority to issue the CNAs written memoranda --- which automatically lead to written warnings by the Director of Nursing under the progressive disciplinary policy.  The receipt of four written warnings in 12 months leads to termination. The RNs sometimes sign on the line for “supervisor.”

 

Receipt of an employee memorandum leads automatically to a written warning, which is a “step” in the Center’s system of progressive discipline. Therefore, the authority that RNs have to issue memoranda to CNAs is the authority to discipline. And because RNs exercise independent judgment in choosing whether to issue a memoranda or provide verbal counseling, they are supervisors under the Act. The Board’s failure to acknowledge that receipt of a written warning is itself discipline renders its contrary determination unsupported by substantial evidence.

That the RNs do not complete the entire form,  have no access to the employee’s disciplinary file to determine at what step the employee is in the disciplinary process or the number or type of prior disciplinary infractions and do not have the authority to suspend or terminate the employee does not affect their supervisory status.  The statute discusses the ability to suspend, discharge or discipline an employee.  An individual can be a supervisor if that person has the authority to discipline, but not the authority to suspend or discharge.

Equating the term discipline with the terms suspend or discharge would render it superfluous, a reading we must try to avoid.

The warnings also constitute disciplinary action because they are not second-guessed or investigation after issuance, unless it is the fourth and final warning in the disciplinary process.

Finally, the RNs showed independent judgment in issuing disciplinary action because, as already discussed, they had discretion to do nothing, give a verbal/educational warning or issue a written warning.  They are not required and usually do not consult with their supervisor before issuing a written warning. That they sometimes receive feedback is indicative that they usually do not receive any suggestions from their superiors.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous D.C. Court of Appeals Strikes Down NLRB Poster Rule as Violating Employer Free Speech Rights

[Editor's Note:  As of January 3, 2014, the NLRB has abandoned the appeal of this and a similar Fourth Circuit Court decision to the Supreme Court.  Therefore, the NLRB's posting rule no longer applies to many private-sector employers.  Nonetheless, these court decisions do not affect the obligation of government contractor to post the same notice under Executive Order 13496 because that Order was not promulgated under the authority of the NLRA.]

Earlier today, the D.C. Court of Appeals issued its long-awaited decision in National Association of Manufacturers v. NLRB, No. 12-5068 (D.C. Cir. 5-7-13).  As faithful readers may recall, the NLRB promulgated a rule in August 2011 requiring virtually all private employers to post a large poster explaining employee rights under the NLRA.  NAM and other employer organizations filed a lawsuit to block the rule.  As previously reported here, the D.C. District Court upheld the rule, but struck down a few of its enforcement provisions.  Certain portions of the poster contained union-friendly descriptions of employee rights and rights that did not apply equally in all industries or circumstances.  The poster also failed to describe employee rights to object to union dues and to seek decertification.  Moreover, the rule tolled the limitations periods for, and ascribed anti-union motive to, employers that failed to post the poster and made them liable for an unfair labor practice.  “We therefore conclude that the Board’s rule violates § 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.” 

The Court first considered whether the NLRB had quorum to issue the rule (in light of its recent Noel Canning decision rejecting certain recess appointments).  The Court concluded that there were three properly confirmed members of the NLRB – which is  a quorum – when the rule was voted upon and approved even though the term of one of those members expired before the rule was published in the Federal Register.

The Court also concluded that the most important issue in the case concerned employers' free speech rights under §8(c) of the NLRA, instead of the §6 rights that had dominated prior arguments.  Under §8(c),  

[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Despite this statutory protection for free speech in labor-management disputes, the Court found that the poster rule violated both its letter and spirit: 

Although § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both. Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice. See 29 C.F.R. §§ 104.210, 104.212.10 And the Board may consider an employer’s “knowing and willful” noncompliance to be “evidence of antiunion animus in cases in which unlawful motive [is] an element of an unfair labor practice.” 76 Fed. Reg. at 54,035–36; see also 29 C.F.R. § 104.214(b).11.  The Board, in other words, will use an employer’s failure to post the notice as evidence of another unfair labor practice.

The Court rejected the Board’s argument that the poster reflected the NLRB’s speech and was not imputing speech to an employer.  Analogizing to First Amendment cases which protect a citizen’s right to “disseminate” pamphlets published by someone else, the Court observed that:

The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. First Amendment law acknowledges this apparent truth: “all speech inherently involves choices of what to say and what to leave unsaid.”

  . . .

“Some of [the] Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”

For example, the Supreme Court had previously held the First Amendment prevented a state from requiring drivers to use a license plate that said “live free or die” and from making school children state the pledge of allegiance.  The Court also rejected the Board’s argument that an employer remained free to post its non-coercive position about unionization next to the poster.  The Court also rejected the Board’s reliance on prior precedent concerning the Bush Administration’s rule requiring federal contractors to post a notice about employee Beck rights because that rule did not apply to all employers and did not involve §8(c) in that the rule was promulgated by the government as a purchaser instead of by the NLRB.   Moreover, in those cases, the unions only argued that the Beck notice rule was pre-empted by the NLRA and did not argue that it violated the NLRA.

The Court likewise rejected the portion of the Board poster rule that tolled the NLRA’s six-month limitations period. According to the Court, few, if any courts, treat a victim’s ignorance of the law as a basis for equitable tolling and the Board erred in concluded that this theory could justify its action in violating the terms of §10(b).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Suggests Employee Handbook Language Concerning Confidentiality of Workplace Investigation

Faithful readers may recall that last August, the NRLB found that an employer violated §7 of the NLRA by directing employee-witnesses to maintain the confidentiality of their interviews during the pendency of a workplace investigation.   Then, at the end of January, the NLRB issued an “Advice Memorandum” concerning Verso Paper which found that an employer’s employee handbook provision was unlawful under the NLRA, but suggested revisions which would bring it into compliance.  (Rumor has it that the Memorandum may have been issued in January, but was not published until recently).    The Memorandum was issued by the NLRB’s Division of Advice (which advises the Board’s regional offices about proceeding with administrative proceedings and whose opinion does not carry as much weight as a Board or court decision).  The Division found the last two sentences of the following employee handbook to be overbroad: 

 Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The Division found this “blanket rule” did not demonstrate a particularized need for confidentiality on a case-by-case basis as required by the NLRB.   Accordingly, the Division recommended that the regional office proceed to issue a complaint against the employer unless the parties were able to settle the dispute.  Nonetheless, the Division also concluded that the employee handbook policy could be lawful if the employer revised it to replace the last two sentences with the following language:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

A Hodgepodge of Activity in February

There have been a few interesting decisions within the past month in the employment context, but none of them are earth-shattering (unless you are facing a factually similar situation in your workplace).   The NLRB once again dinged a non-union employer for terminating an HR employee for discussing confidential salary information with co-workers because the employer failed to show she was a statutory supervisor and employees have a right to discuss wage information.  After she declined reinstatement, the employer offered “to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.”  Of course, whether this decision survives is an open question since the D.C. Court of Appeals ruled last month that President Obama lacked the authority to make three recess appointments to the NLRB on January 4, 2012 and, without those recess appointments, the NLRB lacks a quorum to vote.  (Yes, here we go again).  The NLRB announced it intended to appeal the decision in that particular case and essentially otherwise ignore the decision while conducting business as usual until the Supreme Court tells it otherwise.  The Sixth Circuit also issued a few interesting decisions.

In one case, Quinn v. Griffith, No. 12-1465 (6^th Cir. 2-21-13) the Sixth Circuit affirmed a jury verdict holding an employer liable for a sexually hostile work environment created by the manager in a two-person office and the imposition of punitive damages.  The employee apparently set up a hidden camera in the office to substantiate her allegations after the employer’s internal investigation concluded that it could not substantiate her allegations. The trial court refused to permit testimony by the employer’s lip-reading expert to rebut what the jury saw on the videotape.  Even without lost wages, the plaintiff was awarded $25,000 in compensatory damages and $50,000 in punitive damages.   (Attorney fees for a prevailing plaintiff were not discussed in the opinion).  The matter was remanded for the trial court to clarify or modify the allocation of damages among the individual and corporate defendant and among the state and federal claims.  The Court had no difficulty in rejecting the employer’s argument that it should not be held liable for the manager’s conduct because it failed to preserve the Ellerth/Faragher affirmative defense in its answer to the plaintiff’s complaint or in its summary judgment motion.  Moreover, the employer failed to present any evidence of how it had exercised reasonable care to prevent and remedy the harassment.   (Obviously, this is difficult when it failed to distribute a sexual harassment policy, but not impossible according to the Court).   The same could be said of its argument that it could not be liable for punitive damages.  “An employer may avoid liability by showing that it engaged in good-faith efforts to comply with Title VII, which is most often shown by effective implementation of an anti-harassment policy.”

The Sixth Circuit has also heard and rejected a few appeals involving firefighters suing the City of Columbus.   Yesterday’s decision in Arnold v. City of Columbus likewise found no evidence of race discrimination.  This case involved a series of external and internal investigations over a few years into the conduct of the inspections section/fire protection bureau of the fire department.  Employees complained, in particular, about how the internal investigations were conducted and alleged that they were treated differently than white employees in terms of the presence of union officers in interviews, whether certain interviews were tape recorded and whether they could object to the presence of union officers in interviews, etc.   Ultimately, the Court found that the plaintiffs were not treated differently on account of their race.   In the Fullen case, the Court upheld disciplinary action when a plaintiff refused to be interviewed in the presence of a union representative.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Was Busy at End of 2012

In the last quarter of 2012, the NLRB issued several significant decisions which will affect both union and non-union employers in the future.  Three decisions in particular are worth noting.  In one, a non-union, non-profit employer was found to have violated the NLRA for discharging five employees for critical statements made on Facebook about a co-worker in violation of the employer’s zero-tolerance anti-bullying policy.  In another, the Board concluded that an employer is no longer always entitled to withhold from a union witness statements gathered during a workplace investigation that leads to the termination of an employee.  Finally, the Board held that employers with a newly certified union that have not yet reached a collective bargaining agreement generally may not unilaterally demote, suspend or discharge employees without first bargaining with the union.

Non-Union Employer Terminating Employees For Criticizing Co-Worker on Facebook.  In Hispanics United of Buffalo, the non-profit, non-union employer terminated five employees under the agency’s EEO non-retaliation/anti-harassment policy for criticizing a co-worker who was critical of their client service.   One of the terminated employees knew that the co-worker intended to express her concerns to the Executive Director and, while home on Saturday, asked her Facebook co-worker friends what they thought of this criticism.  Five off-duty employees responded by objecting to any criticism of their own performance.  The criticized co-worker also responded about the “lies” and reported to the Executive Director the following Monday that the Facebook postings had upset her enough to give her a heart attack.  Following an investigation – which included reviewing copies of the postings – five of the six employees involved were terminated under the agency’s “zero tolerance” for bullying and harassment under the EEO policy.  (The Director’s secretary was not discharged even though she also participated).   The Board’s majority found the Facebook criticisms of the co-worker constituted protected concerted activity and could not be the basis of disciplinary action.   The Board rejected the employer’s argument that the Facebook criticisms constituted bullying and harassment: “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”

Confidentiality of Written Witness Statements Collected During Workplace Investigations.  Since 1978, the NLRB has ruled that employers do not need to provide to a union witness statements gathered during a workplace investigation of employee misconduct (because the NLRB does not itself provide copies of witness statements prior to hearings).  However, on December 15, 2012, the NLRB overruled that decision in American Baptist Homes of the West d/b/a Piedmont Gardens.  The issues in American Baptist Homes concerned whether the employer “violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to provide the Union with the names, job titles, and/or written statements of three individuals who claimed that they witnessed” a nurse sleeping on duty that resulted in the nurse’s termination.  Two of the nurse witnesses submitted their written statements to HR with assurances of confidentiality, but the third nurse slipped her statement under the HR door with only the assumption of confidentiality without being asked for a statement or promised confidentiality.  The NLRB concluded that the employer “violated the Act by failing to provide the witnesses’ names and job titles.”  As for two the witness statements, the Board decided to overrule prior precedent, but to not apply retroactively it to employer in American Baptist Homes.  Nonetheless, because the third statement had been submitted spontaneously without any assurance of confidentiality, the employer was required to produce it to the union.

 Under the Board’s new test, “if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” An employer “asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the” union.  The Board majority rejected the dissent’s concern about the impact this would have on workplace investigations, particularly sexual harassment investigations governed by EEOC guidelines:  

The Detroit Edison balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEOC guidelines. Where such concerns exist, the employer will not be required to provide the information, but will merely need to seek an accommodation from the union. It follows, then, that the Detroit Edison test encourages parties to a collective bargaining agreement to work together to accommodate their competing interests.

Duty to Bargain with Union Imposed on Employee Disciplinary Decisions.  In Alan Ritchey, Inc., the Board held for the first time that an employer which has not yet adopted a collective bargaining agreement with a union must first bargain with the union before imposing discretionary disciplinary actions on any employees in the bargaining unit.    The disciplinary actions at issue involved discretionary progressive disciplinary action for absenteeism, insubordination and threatening behavior.   Imposing disciplinary action was found to be a prohibited material unilateral change in the terms and conditions of employment. “[T]he employer has both a duty to maintain an existing policy governing terms and conditions of employment and a duty to bargain over discretionary applications of that policy.”

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate,  . . .  because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

The Board rejected concerns with the delay from a duty to bargain before imposing disciplinary action because the pre-imposition bargaining was only required for suspensions, demotions and discharges.  Moreover, “where the preimposition duty to bargain exists, the employer’s obligation is simply to provide the union with notice and an opportunity to bargain before discipline is imposed.  . . .  the employer is not required to bargain to agreement or impasse at this stage; rather, if the parties have not reached agreement, the duty to bargain continues after imposition.”  (emphasis added).  In addition, an employer could still act unilaterally where it “has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel,” such as where “an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in or outside the workplace.” “Finally, an employer need not await an overall impasse in bargaining before imposing discipline, so long as it exercises its discretion within existing standards.”

Nonetheless, because this was a new Board policy, it decided to not apply the ruling retroactively to the employer, but to only apply it to disciplinary actions taken in the future.

Other Recent Board Decisions.  The Board also publicized its actions in a few other cases. In Latino Express , the Board decided to require employer to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum and to require employers paying back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. In United Nurses & Allied Professionals (Kent Hospital) – The Board, addressed “several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision” and concluded that “ lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment.”  Finally, in WKYC-TV, Gannet Co. “the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Good News and Bad News from the NLRB in October

It often seems like only crazy news has been coming out of the NLRB these days.   You know what I mean: employers being unable to require common courtesies from their employees or to prohibit them from defaming one another.  In a recent case, the divided NLRB ruled that it violates the NLRA to not promptly respond to a union request for irrelevant information.  However, the NLRB’s General Counsel took some action to reign in some of the craziness last month.  

Responding to Requests for Irrelevant Information.  First, bad news.  In late October, the NLRB ruled that an employer violated the NLRA when it took four months to tell a union in writing that its request for information about a non-union entity was irrelevant. Iron Tiger Logistics, 359 NLRB No. 13.  The ALJ and the union ultimately agreed with the employer that the requested information was irrelevant to the union’s duties as bargaining representative and the employer did not need to produce the information.  The union did not appeal that finding.   Nonetheless, the ALJ found that waiting four months – until after the ULP charge had been filed --  to put in writing that the union’s request was for irrelevant information violated the employer’s duty to bargain in good faith with the union.  As explained by the ALJ:

[A]n employer must respond to a union’s request for relevant information within a reasonable time, either by complying with it or by stating its reason for noncompliance within a reasonable period of time. Failure to make either response in a reasonable time is, by itself, a violation of Section 8(a)(5) and (1) of the Act. Some kind of response or reaction is mandatory. Columbia University, 298 NLRB 941, 945 (1990), citing Ellsworth Sheet Metal, 232 NLRB 109 (1977).

The NLRB agreed: “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.”   Accordingly, the employer in this case “was required to timely provide [the requested] information or to timely present the Union with its reasons for not doing so.”  The Board majority rejected the dissent’s argument --  that no prior cases had ever found a statutory violation when the employer was not required to respond to a request for irrelevant information --  because the requested information was “presumptively relevant.”

 

The question here is not whether the Respondent had a duty to provide the information sought by the Union, but rather whether it had a duty to respond to the Union’s request in a timely way.

Employment at Will Disclaimers.  Now, the “good” news. In the last year or so, the NLRB has taken the position that employee handbook provisions – for both union and non-union employers -- violate the NLRA if they “explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.”  It’s the “reasonably construe” language which has generated derision because there has been nothing reasonable about some of the construction being done.   The NLRB General Counsel has advised that:  

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.  In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.

 In February, an ALJ ruled that it violated the NRLA for a Red Cross employee handbook in Arizona to contain an employment-at-will disclaimer which provided, among other things, that ““I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”   According to the ALJ,

 

there is no doubt that “employees would reasonably construe the language to prohibit Section 7 activity . . . the signing of the acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly,  whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.

The employer settled the case rather than appeal it to the NLRB. 

 Employment at will disclaimers are standard in order to explain to employees that they do not have a contractual right to a job for a definite period of time unless certain contingencies are satisfied (like, for instance, a contract signed by the CEO or Board President, etc.).  Without the disclaimer, employers often found themselves being sued by terminated employees claiming that their discharge was unfair and they had been orally promised lifetime employment, etc.  Fortunately, the bad press generated by this ALJ decision and settlement woke up the NLRB General Counsel’s office, which published a memorandum requiring “all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination”  purportedly  “because Board law in this area remains unsettled.”

The General Counsel also publicized that most employment at-will disclaimers do not violate the NLRA. Merely highlighting that “that the employer’s representatives are not authorized to change” the employees’ employment at will relationship does not violate the NLRA.   In particular, the General Counsel specifically approved the employee handbook used by two employers:

·        Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

·        The relationship between you and Mimi's Cafe is referred to as employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

 The General Counsel acknowledges the utility of the employment at will disclaimers and their prior approval by the Board and courts:

 

It is commonplace for employers to rely on policy provisions such as those at issue here as a defense against potential legal actions by employees asserting that the employee handbook creates an enforceable employment contract. See NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965) ("It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act"); Aeon Precision Company, 239 NLRB 60, 63 (1978) (same); Aileen, Inc., 218 NLRB 1419, 1422 (1975) (same).

Accordingly, it rejected the argument that the NLRA was violated by a handbook which provided that no representative had authority to modify the employment at will relationship as long as the disclaimer and/or signed acknowledgement “does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.”  Notably, the NLRB General Counsel’s office is still taking the position that it could violate the NLRA for an employee handbook provision to “require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.” 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Invalidates Employer’s Courtesy Rule as Violating Employee Right to Be Disrespectful, But Upholds Termination for Mocking Customer Test Drive

On Friday, a divided NLRB (i.e., 2 Democrats vs. 1 Republican) affirmed an Administrative Law Judge decision that an automobile dealership violated its employee's rights by utilizing an employee handbook which required employees to behave courteously. Karl Knauz Motors, Inc.,
Case 13–CA–046452. The NLRB unanimously, however, affirmed the ALJ finding that the employer lawfully terminated the employee for mocking a customer test driving accident on his Facebook page because he was not engaging in any concerted activity arguably related to the terms and conditions of his employment or on behalf of co-workers.   Interestingly, in light of the lawful termination grounds, the NLRB refused to address the employee's argument that he was actually terminated for a different Facebook post where he mocked the employer's cheap refreshments for customers of its expensive cars. In contrast to mocking the poor driving skills of a customer's child (and the sales rep apparently sitting in the passenger seat), mocking the employer's cheap refreshments was arguably related to the lower sales commissions the employee anticipated would flow from the minimal investment in food. The employer did not object to the ALJ's finding that the handbook also violated the NLRA with its provisions on "unauthorized interviews" and "outside inquiries concerning employees" and had rescinded those rules (as well as the Courtesy rule) before the evidentiary hearing. The NRLB General Counsel also did not object to ALJ's approval of the employee handbook's "Bad Attitude" rule.  

The NLRB's discussion may be enlightening for employers:

The judge found that the Respondent, which owned and operated a BMW dealership, violated Section 8(a)(1) of the Act by maintaining a rule in its employee handbook stating:

(b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

For the following reasons, we agree with the judge's finding.

An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. . . . If it does not, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Id. at 647. (citations omitted).

We find the "Courtesy" rule unlawful because employees would reasonably construe its broad prohibition against "disrespectful" conduct and "language which injures the image or reputation of the Dealership" as encompassing Section 7 activity, such as employees' protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them. First, there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule's broad reach. See generally Costco Wholesale Corp., 358 NLRB No. 106 (2012) (finding unlawful the maintenance of a rule prohibiting statements posted electronically that "damage the Company . . . or damage any person's reputation"). Second, an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as "disrespectful" or "injur[ious] [to] the image or reputation of the Dealership." Cf. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (in evaluating employer statements alleged to violate Sec. 8(a)(1), "assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting" and "must take into account the economic dependence of the employees on their employers"). As we recently observed:

Board law is settled that ambiguous employer rules – rules that reasonably could be read to have a coercive meaning – are construed against the employer. This principle follows from the Act's goal of preventing employees from being chilled in the exercise of their Section 7 rights[,] whether or not that is the intent of the employer . . . .

Flex Frac Logistics, LLC, 358 NLRB No. 127, slip op. at 2 (2012).

. . . .

In other words, compliance with the first sentence of the rule is no assurance against sanctions under the second sentence of the rule. Reasonable employees would believe that even "courteous, polite, and friendly" expressions of disagreement with the Respondent's employment practices or terms and conditions of employment risk being deemed "disrespectful" or damaging to the Respondent's image or reputation. Thus, contrary to the dissent's contention, the second sentence of the rule proscribes not a manner of speaking, but the content of employee speech—content that would damage the Respondent's reputation. For example, here we find that the Respondent unlawfully coerced its employees by promulgating two other rules that restrict employees' ability to communicate about their terms and conditions of employment. Presumably, even if employees shared with third parties information about our findings of the Respondent's unlawful conduct in the most genteel manner, such sharing would be injurious to the Respondent's image or reputation. A reasonable employee, consequently, would believe that such a communication would expose him or her to sanctions under the Respondent's rule.

The dissent argued that the majority's interpretation of past precedent was unreasonable as applied to the facts of this case. In any event, the employer was ordered to rescind the "Courtesy" rule in its employee handbook "that prohibits employees from being disrespectful or using profanity or any other language which injures the image or reputation of the Dealership," notify the employees of the rescission and post a copy of the Appendix summarizing the NLRB requirements. It was not, however, required to reinstate the fired employee.

As mentioned, the ALJ did not find any problem with the employer's Bad Attitude rule, which the employer also rescinded before the hearing and which provided:

Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.

The ALJ found that "the one sentence prohibition would reasonably be read to protect the relationship between the Respondent dealer and its customers, rather than to restrict the employees' Section 7 rights. As was frequently mentioned during the hearing, BMW is a top of the line automobile with, I imagine, an appropriate sticker cost. A dealer in that situation, I believe, has the right to demand that its employees not display a bad attitude toward its customers."

In publicizing the decision, the NLRB explains:

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual's actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting." Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Posting Rule Postponed Again

Yesterday, the United States Court of Appeals for the District of Columbia Circuit granted an emergency motion for an injunction pending appeal in the National Association of Manufacturers v. NLRB, No. 12-5068 and the NLRB announced that it will comply with the stay and file a cross-appeal. As reported here last month, the District Court had upheld the NLRB’s new requirement for most private sector employers to post a notice of employee rights under the National Labor Relations Act (NLRA), but simultaneously concluded that the enforcement actions which the NLRB intended to take to enforce the new requirement were outside its authority under the NLRA. The new posting requirement was to begin at the end of this month on April 30, 2012. An appeal was filed by the NAM and it sought to enjoin the new posting requirement pending the appeal. The NRLB objected to staying the posting requirement, while also indicating that it might appeal the portion of the decision denying its enforcement powers. (In the meantime, a federal court in South Carolina rejected the NLRB’s authority to require employers to post the notice). The Court of Appeals ultimately concluded that because the posting requirement had been stayed by the NLRB since August during the pendency of the district court litigation, staying it another six months or so while the appeal progressed was advisable to maintain the status quo.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Federal Court Upholds NLRB Posting Requirement, But Not Presumption of ULP

[Editor's Note: The posting requirement has again been stayed pending appeal of this decision to the Court of Appeals.]

This morning, the United States District Court for the District of Columbia upheld in a 46-page opinion most of the NLRB’s regulation requiring employers to post a notice of employees’ rights under the NLRB. However, the Court ruled that an employer’s failure to post the notice, by itself, could not constitute an independent unfair labor practice and, surprisingly, that an employer’s failure to post the mandatory notice could not operate to toll the six-month statute of limitations to file an unfair labor practice charge. National Association of Manufacturers v. NLRB, Case No. 11-629 (D.D.C. 3-2-12):

The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to cost to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The Court found that the notice posting requirement was permissible under Section 156 of the NLRA, which provides in relevant part that ““The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by [this subchapter], such rules and regulations as may be necessary to carry out the provisions of this subchapter.” The Obama Administration argued that “employees cannot exercise their rights without knowledge of what those rights are, and they submit that the rule simply mandates that employers inform employees of those rights, which furthers the purposes of the Act.”

The Court found the portion of the new NLRB regulation which made it an unfair labor practice for an employer to fail to post the mandatory notice violated sections 158(a) and 160(a) of the NLRA, “in which Congress specifically defined and limited the conduct that could constitute an unfair labor practice.” While the NLRA does not attempt to enumerate every conceivable action which could constitute an unfair labor practice, the NLRA did place some limits on what the NLRB could declare as an ULP:

Section 160(a) empowers the Board “to prevent any person from engaging in any unfair labor practice (listed in section 158 of [title 29]) affecting commerce.” 29 U.S.C. § 160(a). This section has been interpreted as limiting the unfair labor practices that the Board may prohibit to only those enumerated under section 158. Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 676 (1961) (“Where, as here, Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme.”); see 76 Fed. Reg. at 54,032 (concession by the Board that section 160(a) “specifically limits the NLRB’s powers to preventing only the unfair labor practices listed in [section 158] of the Act.”).

Failure to post the mandatory notice cannot reasonably be found to interfere with, obstruct or hamper employees’ NLRA rights as “interfere” is commonly understood.

Second, section 158(c), which prohibits the Board from construing “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form” as an unfair labor practice or as evidence of an unfair labor practice “if such expression contains no threat of reprisal or force or promise of benefit,” also suggests that Congress had a narrow reading of the word “interfere” in mind. . . . Since Congress prohibited the Board from considering an employer’s express statement of its views to be an unfair labor
practice, it follows that it did not intend that an employer’s mere failure to supply information would be designated as one.

Importantly, the Court found that an employer’s failure to post the mandatory notice is not irrelevant to whether there has been an unfair labor practice:

The Court points out that nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights. The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.

The Court also rejected the new regulation’s provision tolling the six-month statute of limitations to file an ULP Charge:

This provision not only extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, it applies to all unfair labor practice actions against employers where the notice was not posted. The Court concludes, as in the case of the unfair labor practices provision, that Congress did not leave a gap for the agency to fill with respect to the statute of limitations. Instead, in section 160(b), Congress plainly mandated a short time period during which an aggrieved person must file a charge. 29 U.S.C. § 160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . . .”). The challenged provision of the rule upends that requirement.

While the Court noticed the applicability of equitable tolling, it refused to apply legal precedent under Title VII and the ADEA to the NLRA because, unlike the NLRA, those statutes specifically contained a notice-posting requirement and, in Title VII cases, the tolling is only applied on a case-by-case basis. In contrast, the NLRB’s regulation does not apply to consideration of individual circumstances in automatically tolling the statute of limitations and does not put the burden of proving equitable tolling on the plaintiff/government.

Finally, the Court rejected the First Amendment argument in that the employer was not being forced to state anything by posting a government-embossed poster.

As previously reported herre, the NLRB’s requirement that employers post the notice of NLRA rights becomes effective on April 30, 2012.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.