Labor Relations Update

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, The Boston Globe, The Daily News, ABC, the ASPCA, Pacific Gas and Electric, Host Hotels and Resorts, and The Broadway League (and many of its theatre owner and producing members). Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is an annual guest lecturer at Columbia Business School and a board member of the Cornell School of Industrial & Labor Relations Alumni Association.

Employee use of social media remains at the forefront of issues at the National Labor Relations Board.  Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the Agency), the NLRB’s Division of Advice recently issued an Advice Memorandum stating that an employer did not violate the National Labor Relations Act when it terminated an employee for writing “unprofessional and inappropriate” comments on his personal Twitter account.

In early 2010, a “crime and safety beat” reporter for the Arizona Daily Star began posting a series of controversial tweets on his Twitter account – which he independently operated and controlled although it identified him as a reporter for the Daily Star.  His Tweets commented on both his manager's and his own views of crime (and crime reporting) in Tuscon, including:

• “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.”
• “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
• “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.’”
• In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”

After the tweet about the paper's copy editors, the reporter was instructed that, even though the Daily Star did not have a formal social media policy, in the future he was “prohibited from airing his grievances or commenting about the Daily Star in any public forum.”  The reporter, however, continued posting controversial tweets - - leading to his suspension and eventual discharge for tweeting insensitively about homicides and in other manners which drew negative attention to the Daily Star.

Although the reporter claimed he was fired for engaging in activity protected by the National Labor Relations Act, the Division of Advice disagreed.  Instead, it decided that the “inappropriate and offensive” Twitter postings were not protected activities, because they “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

In what should be a warning to other employers dealing with social media issues, the Division of Advice did conclude that the paper's initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7.  However, since the statement was only made to a single employee and the Daily Star made its decision to discharge based on the comments unrelated to that statement, it saw no reason to issue a complaint on that issue.

As Ron Meisburg reported last week, the National Labor Relations Board recently announced in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011) that it might reconsider its long-standing precedent that employers are not required to provide “witness statements” obtained in the course of a disciplinary investigation, to the unions representing their employees.  

As we anticipated, following its recent trend before it overturns long-standing precedent, the Board has now invited all interested parties to submit briefs setting forth their position on this important issue.  The Board has specifically requested positions on whether it should continue to adhere to its witness statement precedent, and even if a statement is not a “witness statement” what standard should be used to determine if a statement gathered during an investigation should be protected from disclosure because the statement may be attorney-work product. 

The Board’s ultimate decision on the scope of witness statements which might have to be furnished by employers could have far reaching implications beyond simple grievance arbitrations.   Witness statements frequently are obtained as part of employer internal investigations into allegations of all forms of workplace misconduct, including harassment and discrimination claims.  Thus, a holding that witness statements must be turned over to a union under the National Labor Relations Act could impact an employer’s ability to protect the results of those confidential internal investigations from disclosure prior to litigation. 

Amicus briefs, which must be filed electronically on or before April 1, 2011, may not exceed 25 pages.

Late last year, the Board invited interested groups to file briefs in Roundy’s, Inc., 356 NLRB No. 27 (2010), a case involving what legal standard should be applied to determine whether an employer has violated the NLRA when it prevents non-employee union representatives to access to its property.  In Sanudsky Mall Co., 329 NLRB 618 (1999), the Board determined that if any outside groups were allowed to use employer property, regardless of the type of group, then union organizers could not be barred.  There actually has been no significant change in the law or real question about the law in this type of case since the Board set forth the standard.  So, while the Obama-board has had a pattern of requesting briefs from interested parties before issuing a precedent changing decision,  it was curious that they did so in this rather run-of-the mill case. 

It, however, soon became clear what the Board was doing.  In 2007, the Bush-era NLRB issued its highly controversial decision in Register Guard, 351 NLRB 1110 (2007) - - finding that an employer could restrict employee use of its computer systems for union solicitation purposes, even though it allowed employees to use it for other personal, non-business purposes.  (Read our client alert on Register Guard).  Since for various reasons the Board could not overrule Register Guard directly (including that Member Becker appeared in the case, and therefore cannot rule on it directly again), the Board seems set to use a rather routine property case to overturn the standard to be used for e-mail situations.

In fact, the briefs filed with the Board leave no question that all sides believe that is what he Board is looking to do.  NLRB Acting General Counsel Lafe Solomon submitted a brief explicitly asking the Board to use the case to apply Sandusky Mall to all forms of access cases and to hold that Register Guard “adopted an inappropriate analysis and should be overruled.”  Meanwhile, management-side representatives have filed briefs supporting the broader Register Guard standard (and looking to have it expanded to traditional property cases as well). 

Given that almost every employer’s email system is used for some form of personnel business, overturning Register Guard will give union supporters broader access to companies’ e-mail and other electronic systems. 

Typically, the Board has issued decisions on cases in which it has requested briefs within two months after the briefs are filed.  So, stay tuned.