Court Strikes Down Portions Of NLRB Notice Posting Rules

Posted by Mark Theodore on March 02, 2012

A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB's attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it again after facing stiff resistance in the form of lawsuits challenging the new requirement.  A compliance date of April 30, 2012, was set in order to allow the courts to render decisions on the viability of the NLRB's regulations.  There are two significant pieces of litigation over the NLRB's rule.  The ruling discussed here concerns the challenge brought by the National Association of Manufacturers ("NAM").  The U.S. Chamber of Commerce also has a separate suit pending.

On March 2, 2012, Federal Judge Amy Berman Jackson handed down the split decision in the case of National Association of Manufacturers v. NLRB (Civ. Action No. 11-1629).pdf.  NAM, a trade association, challenged the NLRB's authority to require the rights poster, as well as the agency's contention that failure to post the notice could constitute an unfair labor practice. 

In her 46 page decision, Judge Jackson upheld the right of the NLRB to require the notice posting, but struck down the rules making it an unfair labor practice for an employer's failure to post the notice.

There are two parts to the NLRB's regulations on the rights poster.  Subpart A is the requirement that employers post the notice, and Subpart B concerns the agency's intended enforcement for employers that fail to post the notice.. 

Subpart A - Judge Upholds NLRB Requirement That Employers Post Rights Notice

NAM challenged the NLRB's authority to require employers to post the rights notice.  The theory for this contention is that in every piece of federal employment legislation where a notice of some sort is required to be posted (e.g., FMLA, FLSA, OSHA, etc.), the statutes all expressly require the responsible agencies to develop a notice for posting.  The NLRA is silent on this issue, and so the argument goes, Congress did not authorize the NLRB to make such a notice posting a mandatory requirement. 

Judge Jackson seemed to have little problem disposing of this issue in favor of the NLRB.  After a lengthy discussion of the NLRB's rulemaking authority and relevant caselaw, the Judge ruled:

Therefore, the Court cannot find that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act.  Neither the text of the statute nor any binding precedent supports plaintiffs' narrow reading of a broad, express grant of rulemaknig authority.

So, absent a stay of this ruling pursuant to an appeal, the notice poster will be required as of April 30, 2012.

Subpart B - Enforcement Consequences For Failing To Post The Notice

NAM also challenged the NLRB's enforcement aspects of the rules.  

NLRB Cannot Make Failure To Post The Notice An Unfair Labor Practice

The NLRB rule states the consequences of failing to post the notice: "Failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7. . ."  This is the most controversial and troublesome aspect of the rulemaking from a legal and practical perspective.  Yes, employers dislike having to post the notice at all, particularly in a labor relations climate that is more contentious than it has been in 20 years.  In the age of social media and instanteous information sharing, why must an employer be required to inform employees of the rights when such information is available from myriad sources?

What the NLRB attempts to do by these regulations, however, is to go much farther than mere publication of information.  By making the failure to post an actual unfair labor practice, the potential consequences for employers are extremely serious.  First, the NLRB's designation of a failure to post information that has never been required in the 77 years of the NLRA as interference, restraint or coercion of employee choice is quite a stretch.  The agency appears to be suggesting that an employer's failure to, in the future, give this information to employees interferes with free choice, an assertion that requires several leaps of logic.

Second, and most important, if the failure to post this notice is an unfair labor practice, then it could be grounds to overturn an otherwise properly held secret ballot election.  Yes, that's right.  As we have previously pointed out, the mere existence of an unlawful handbook policy could overturn a representation election, even where there is no evidence the policy played any part in an employee's choice on the secret ballot.  Indeed, the NLRB has ruled that the mere existence of the policy can overturn the election, even when employees are already represented by a uniion and seek to end such representation.  

Judge Jackson struck down this portion of the rule, stating "Plaintiffs maintain, and the Court agrees, that the agency lacked the authority to deem a failure to post to be an unfair labor practice under the Act."  In discussing the statutory framework and caselaw, the Judge concluded:

In other words, section [8(a)(1)](the provision of the NLRA making it an unfair labor practice to interfere with employee choice) prohibits employers from getting in the way - from doing something that impedes or hampers an employee's exercise of the rights guaranteed by [Section 7] of the statute.  It does not prohibit a mere failure to facilitate the exercise of those rights.

Judge Jackson went on to state that "nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice...."  The Judge made clear, however, the Court's expectation of the agency if it was to assert that an emploiyer's failure to post is an unfair labor practice:

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.

In other words, and it seems incredible we are having such a discussion, the NLRB actually must prove in an unfair labor hearing that the mere failure to provide information that is readily available from any number of sources, interfered with an employee's Section 7 rights.  This is exactly the kind of analysis that should take place when it is asserted an employer's handbook provision is unlawful, but doesn't; there should be a requirement that the existence of the so-called overbroad language actually interferes with an employee's rights. Unfortunately, what really happens in handbook cases is the NLRB merely says certain language in an of itself interferes with Section 7 rights without any proof that anyone read it, was aware of it or that the policy otherwise held any significance.

NLRB Cannot Toll Statute of Limitations By Rule

The Judge also ruled that the NLRB cannot use the failure to post the notice to toll the NLRA's six month statute of limitations.  Judge Jackson noted, "the NLRA does not authorize the Board to enact a rule which permits it to toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted."  In reaching this conclusion, the Judge noted there exists extensive legislative history on the six month statute of limitations contained in the NLRA, and that in certain circumstances it is appropriate to toll the statute.  Such tolling is not automatic and must be supported by proof.  The Judge's opinon notes, "The Final Rule strips away the case-specific nature of the equitable tolling doctrine by imposing it as the rule rather than the exception. The Court found it particularly troubling that the NLRB's conception for the rule stated that the employer must prove that the tolling did not apply:

This turns the burden of proof on its head.  The plaintiff [the NLRB in unfair labor practice cases] generally bears the burden of proving that equitable tolling should apply in the individual case, but the rule demands that the employer prove that across the board, unlimited extension should not apply. 

In other words, the NLRB cannot use an employer's failure to post a notice to automatically toll the statute of limitations for other unfair labor practices alleged at the workplace. 

Free Speech Callenge Rejected

NAM also challenged the rule on free speech grounds, that the NLRB was compelling employers to make certain speech.  The Court rejected this argument ruling that "the Board's notice posting requirement does not compel employers to say anything" and that the poster falls into the category of "government speech."

The Judge concluded Subpart A (the notice posting requirement) could be severed from Subpart B, meaning absent some court intervention, the posting requirement will go into effect as planned.

It seems likely both sides will appeal the ruling.   Also, it is highly likely another Court soon will rule on these issues in the U.S. Chamber's litigation. We will keep an eye out for further developments.

 

Employer Meetings, Election Site The Next Targets Of NLRB?

Posted by Mark Theodore on February 09, 2012

It's been a quiet few weeks for the NLRB.  Since January 1, the NLRB has issued only a small number of decisions, none of which appear to be noteworthy.  There are, of course, many developments that are in process.  For example, we still do not know the full effect of the NLRB's decision in Specialty Healthcare, where the NLRB adopted the micro union standard, and which has since been applied in an alarming way.   The NLRB also has pending its new election regulations, which although under challenge, could bring major changes to the way bargaining units are established.

The fact is the NLRB's micro union standard and election procedure regulations are probably only the tip of the proverbial iceberg.  These are the changes the NLRB could accomplish; remember, the NLRB's original proposed election regulations were much broader in scope, and were only scaled back after a wave of intense opposition.  So, the NLRB clearly is receptive to more sweeping change. 

A recent decision demonstrates just how receptive the agency could be in the coming months.  In the final hours of 2011, the NLRB issued 2 Sisters Food Group, Inc., 357 NLRB No. 168 (December 29, 2011).pdf, which to date has gone unnoticed.  This decision, however, provides us with substantial evidence of NLRB mission creep.

The facts in 2 Sisters are fairly basic.  The union lost a representation election by a vote of 66 to 87, with more than enough challenged ballots to alter the outcome.  The union then filed numerous objections, some of which were sustained, some of which are rejected.  The employer was found, for example, to have unlawfully terminated a union adherent during the election campaign.  Standing alone, an unlawful termination would be enough to warrant a rerun election (indeed, Chairman Pearce and Members Becker and Hayes all agreed to sustain the finding that the termination was unlawful, which means the election would be thrown out in any event). 

The truly remarkable aspect of the 2 Sisters decision is that the vast majority of it deals with issues that had no effect whatsoever on the election.  These issues show how unions will attempt to cash in on the NLRB's receptivity to change by bringing challenges asking the agency to overturn or alter existing law.  Here are a few examples-

Handbook violations.  As we have previously detailed, the NLRB has been finding that the mere existence of "overbroad" handbook violations may be enough to overturn an election even when there is no evidence the policy was enforced, let alone that employees were even aware of it.  In 2 Sisters, Chairman Pearce and Member Becker found that the employer's rule subjecting employees to discipline for "inability or unwillingness to work harmoniously with other employees," was an unfair labor practice (and, therefore, also grounds for an objection) because "it was sufficiently imprecise that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7, and that employees could reasonably construe the rule to prohibit such activity."  The NLRB also ruled the requirement that employees arbitrate all disputes violated the Act.

The problem with these kinds of violations is twofold.  First, there is no evidence that the rules were actually construed to prohibit protected union activity (or any other activity for that matter).  Indeed, the election seems to have been hotly contested, which is actually proof the "harmonious" and "arbitration" handbook policies had no effect on the election.  One can see how important the handbook rule might be if that was the only objection to an election:  the NLRB would be nullifying free choice based on a purely theoretical impact of a policy found in a multi-page handbook odds are the employees received, yet never actually read.  Second, and more important, this finding shows that since the NLRB is more receptive to such charges, employers can and should expect unions to raise more of these challenges.  The ruling creates an incentive for the union to scour the employer's handbook in search of some innocuous phrase, such as a requirement that employees work "harmoniously."   No proof other than the policy is required because the NLRB decides what the employee would "reasonably construe" a rule to mean.  So, the union will hold onto the issue until after the results of the election are known.  If the union loses, then it will simply file objections asking the results be overturned based on some obscure policy buried in the handbook.  While this is an area of law that changes, and will continue to change, each employer should review its handbook in an attempt to remove such hidden land mines.

Employer Meetings.  The union in 2 Sisters objected to the employer's holding of mandatory meetings during the campaign to discuss its views on the union.  Even though the union acknowledged that the employer's meetings were not objectionable under the law, it still asked for the rule to be changed.  Although the NLRB did not reach this issue, Member Becker, in a three page dissent, left a parting shot, which is sure to set the stage for the next few months.  

Since 1953, it has been the law that the employer may hold mandatory meetings in which it expresses its view on the union.  The employer is prohibited from holding such meetings during the twenty-four hour period prior to the election.  Member Becker made clear his view that such rule should be discarded. and employers should be prohibited from holding any mandatory meetings to discuss the union:

Board-supervised elections have been called the 'crown jewel of the Board's accomplishments' under the Act. . .By continuing to permit employers to require that employees attend campaign meetings as a condition of continued employment, the Board does not simply tarnish that jewel, it fractures it.  I would not continue down this long but fundamentally misguided path.

So, the rule of the last 59 years has been wrong, despite the make-up of the NLRB changing from pro-labor to pro-management numerous times.  Member Becker would have it that an employer may not call a meeting to discuss with its own employees a matter that concerns everyone at the workplace just because the topic is the union.  As extreme as the view may sound, we can expect the issue will be raised again in the coming months, and the NLRB likely will have some receptivity to it.

Site of the election.  Having secured a rerun election, the union in 2 Sisters requested that the second election be held off-site away from the employer's premises.  The NLRB did not grant the request yet expended five pages of the decision noting that the Regional Director has the ultimate authority to direct an election to be held at a place other than an employer's premises.  The opinion sets out guidelines the Regional Director should consider in making his or her decision on the site of an election.  Why spend so much time talking about this issue?  Clearly, the NLRB is sending a signal.  There is enough language in these pages that indicates a new tactic may be for the union to request a location for an election other than an employer's workplace, and if its request is denied, create yet another issue to attack the results.  Thus, the NLRB seemed to be setting this issue up for the future:

While the existing empirical work on this subject is not definitive, it is persuasive and creates concern that holding representation elections on premises controlled by one party without the consent of all other parties is inconsistent with the Board's obligation to insure[] that no party gains last minute advantage over the other.

With the exception of mail ballot elections, the representation election is almost always held at the employer's premises.  This is not for any nefarious reason, but a more fundamental, logical one inherently tied to the NLRB's mission:  the employer's premises is where the employees are most likely to be located and where the NLRB can ensure the greatest turnout. 

Calling the majority's discussion of the election site "unwarranted" and "unprecedented," Member Hayes, summarized the issue succinctly in his dissent:

To some, myself included, it may seem surpassingly strange to premise a change in the requirements for resolving disputes about where to hold a Board election on the prospect that an employer might exercise its right to communicate with employees on a question concerning representation.  By now, however, we should be accustomed to my colleagues' concern that this should happen.  Time and time again, they have demonstrated a willingness, if not open zeal, for limiting employer communications. . .

 

Again, 2 Sisters issued in the final days of 2011 and has received no attention. The arguments made by the union in the case are telling, however, about some of the strategies employers are likely to see in the very near future as unions continue efforts to curtail employer communication.  Of course, the make-up of the NLRB has changed recently, so no one knows what will happen, but it is a safe guess the agency will at least be receptive to the change. 

 

 

Finding Certain Facebook Activity To Be Unprotected, NLRB DismissesTwo Charges

Posted by Mark Theodore on November 07, 2011

The interesection of social media and employee rights under the National Labor Relations Act has received a great deal of attention in recent months, including recently on this blog.  Social media sites such as Facebook and LinkedIn have made it very easy for people to stay connected.  With a simple push of the button, everyone in a widespread group, friends and beyond, can receive real time information about a person.  The ease of people staying connected also has made it more difficult for employers.  Employee comments were once confined to a small group gathered around the water fountain.  Employers now are confronted with an array of unflattering comments (and in some cases pictures) about things occurring in the workplace that appear online for all to see; once it gets online, it can be copied and forwarded to any number of people. 

Negative posts often have resulted in employer action, including termination of the posting employee.  In some cases, the employees have gone to the NLRB to complain that the conduct was protected under the NLRA because it concerned terms and conditions of employment and was of a concerted nature.

Two recent dismissals of NLRB cases underscore the fact that just because you can post a gripe online, it does not mean you will receive the government's protection.   In each case, the conduct was found to be "unprotected" meaning the NLRA was not implicated because the relationship to terms and conditions of employment was not material.

The case of the angry BMW salesman

As we reported in May of this year, a BMW dealer in Illinois fired a salesman who posted online pictures and commentary critical of a sales event.  The employee objected to the fact the employer made available only hot dogs and chips to customers.  After his discharge, the salesman filed charges and the NLRB issued complaint.  The NLRB's original press release on the case cited only the employee's postings about the sales event. 

A trial was held on July 21, 2011.  At trial, the employer admitted that the employee was fired for his Facebook postings.  The employer asserted, however, that it fired the salesman for posting pictures and commentary detailing in mocking terms a Land Rover accident at the employer's sister dealership located next door to the BMW dealership.  So, the real dispute was whether the employee's work related "grievance" about the sales event or whether the posting about the accident was the reason for his termination.

The Administrative Law Judge in his decision analyzed the sales event and the Land Rover crash separately under the Act.  As to the sales event, the Judge found that it was protected, concerted activity because evidence at the hearing established that the salespeople at the dealership had a meeting with management to discuss how the sales event was handled, and these concerns were discussed afterword by salespeople.  Even though the employee who was fired was the only one of the salespeople to post comments about the event on Facebook, this conduct was deemed protected because the complaint about the sales event highlighted things that could have resulted in reduced compensation for the salespeople generally.  The Judge, however, seemed to conclude that it was only barely protected, stating in his decision:

While it was not as obvious a situation as if he had objected to the [Employer] reducing their wages and benefits, there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it or gave the salesperson a lowering (sic) rating in the Customer Satisfaction Rating because of it; not likely, but possible.

The Judge noted that the discharged employee had 95 friends, sixteen of whom were employed by the employer.  The employee achkowledged that his privacy settings allowed access to "friends of friends", so the potential number of people who saw his posts about his employer could well be over a thousand people or more.  How a negative complaint about a sales event made to the public was to "help" the salespeople is not explained.

The Judge went on to conclude that the salesman's discharge was not unlawful because the real reason the employer fired him was for posting material which made fun of the Land Rover accident.  The Judge's analysis on this posting of the employee was a bit more direct:

On the other hand, I find that [employee's] posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise.  It was posted solely by [employee], apparently as a lark, without any discussion with any other employee of [Employer], and had no connection to any employees' terms and conditions of employment.  It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of hte posting further affects the nature of the posting. . .

At the end of the day, it seems the NLRB issued a complaint betting that it would win the credibility dispute between the discharged employee (who claimed the posting over the sales event was the sole motivation for his discharge) and the employer's representatives (who asserted it was more about the Land Rover posting) over the motivation for the discharge.  The Judge ultimately believed the employer, and was openly skeptical of the Region's theory even if he did conclude that the posting about the sales event was protected, concerted activity.

Despite clearing the employer of the discharge, the Judge ruled certain of its policies were unlawfully overbroad.

The Judge's Decision in Karl Knauz Motors, Inc. (Case No. 13-CA-46452).pdf issued on September 28, 2011.

The case of the "whistleblower" bartender

In another twist of where an employee seizes on the hype surrounding the NLRB's issuance of complaint in some Facebook related cases, a bartender attempted to claim she was fired unlawfully for posting material about certain alleged misconduct by a co-worker.  On September 19, 2011, the NLRB's Divison of Advice concluded that a charge filed by a bartender in Puget Sound, Washington should be dismissed. 

The facts are pretty basic.  The bartender ("Charging Party"), one of four at a restaurant, discovered that "a new bartender was serving customers made from a pre-made mix while charging them for drinks made from scratch with more expensive premium liquor."  The Assistant Manager of the restaurant learned of the problem, counseled the errant bartender, and noted the action in his personnel file.

Despite the fact the problem seemed to be resolved, the Charging Party posted comments on her Facebook page to the effect that, "So, I just learned that a fellow coworker/bartender is a cheater! He has been screwing over our faithful customers! Very nice!"  The Charging Party includes among her Facebook acquaintances customers, co-workers and former co-workers.  There was some exchange online between Charging Party and a former co-worker about the situation.

Charging Party continued to post comments about the situation.  A fellow bartender, some servers at the restaurant, and Charging Party discussed the situation at work.  Some people supported the Charging Party, while others did not.  The bartender who was part of this discussion complained to General Manager about Charging Party, apparently worried her posts would be seen by customers.  The employer discharged Charging Party for, "Use of unprofessional communication on her facebook (sic) to fellow employees viewed by employees."  

So, here we have a case where the employer made clear that the employee was being fired for things posting commnents her fellow employees could see.  Was this activity protected?  Charging Party asserted her discharge was unlawful because she was acting as a whistleblower, pointing out how customers were being "cheated" by her felllow bartender. 

Advice concluded Charging Party's discharge was not unlawful.  In reaching this conclusion, Advice reviewed the law, noting the grievance's relationship to an employee's terms and conditions of employment is of paramount importance:  "The Board has held that employee protests over the quality of service provided by an employer are not protected" if the relationship between the service quality and terms and conditions is "tangential."  In contrast, "when employees engage in conduct to address the job performance of their coworkers or supervisor that adversely impacts their working conditions, their activity is protected."  Specifically, because the Charging Party's assertions claimed a "whistleblower" type motivation, Adivce detailed the Board's decision in Georgia Farm Bureau Mutual Insurance Cos., 333 NLRB 850, 850-51 (2001).pdf,  where the employer was found to have unlawfully discharged two employee insurance agents for reporting a supervisor's fraudulent claims processing to the Georgia State Insurance Commissioner.  The Board noted that each insurance agent's employment agreement stated they could be "immediately terminated" for misconduct, including fraud, and the State Insurance Code required licensed agents to report suspected fraud.  The insurance agents' conduct was deemed protected, concerted activity, because they "reasonably feared that a failure to report the suspected fraud could impact adversely on their working conditions."  Id.

In the bartender's case, of course, she didn't report her fellow bartender's actions to any authority, nor was she required to do so.  In fact, she just complained about it in a Facebook posting, viewable to the world, including customers and co-workers.  The Charging Party had no reasonable fear that failing to report the alleged misconduct would result in her termination.

Also, and what makes this case stand out, is the fact the Charging Party's fellow bartender reported her Facebook posts to the employer because he believed they would result in a loss of business.

In determining the case should be dismissed, Advice was blunt in its assessment that Charging Party's conduct did not rise to the level of a noble whistleblower:

Here, the Charging Party's Facebook posts regarding her fellow bartender's job performance had only a very attenuated connection with terms and conditions of employment.  She made the posts because she was upset that he [the other bartender] was passing off low-grade drinks as premium liquor and management was condoning the action.  Unlike the situation in Georgia Farm Bureau the Charging Party did not reasonably fear that her failure to publicize her coworker's dishonesty could lead to her own termination.  Although she later stated that she was concerned that the bartender's conduct would cause customers to stop buying drinks or lower their tips if they found out, she did not state this concern in her posts.  And this assertion is belied by the fact that she was communicating with customers about the bartenders' conduct, which if anything would cause the impact on the business she now asserts she was trying to prevent. 

Advice's analysis is spot on.  In this case, we have a gripe damaging to the business that is really unrelated to the person's terms and conditions of employment.  Indeed, it appears that management took action against the bartender who allegedly was passing off "low-grade" liquor as premium; it doesn't seem as though Charging Party ever herself reported her felow bartender to management.  The inappropriateness of Charging Party's conduct is further demonstrated by the fact she was turned into management by a fellow bartender. 

Like the BMW salesman's case, the discharge was found to be unlawful despite the existence of an overbroad policy.  Review your policies.

The Advice memorandum in The Rock Wood Fired Pizza & Spirits (NLRB Case No. 19-CA-32981).pdf issued September 19, 2011.

These two cases show that while these types of cases have garnered a lot of attention, the law remains the same as before the advent of Facebook and other social media. 

Rhyme or Reason? Trying to Make Sense of the NLRB's Social Media Cases

Posted by Scott Faust on October 12, 2011

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been spilled by commentators and the OGC, itself, trying to help employers and their counsel make sense of it all.  The law is still developing – it has only been a few weeks since an ALJ rendered the first decision in a Facebook case – but thus far, social media cases have been evaluated and decided on the basis of existing legal principles.  There has been no indication that existing rules will be modified or adapted to meet the realities of the digital world, despite fundamental differences in the character of on-line communications versus more traditional forms of employee communication.  Though the rules may be familiar, applying them to social media cases is a challenge.

The majority of cases generally fall into two categories, with some overlap: (1) those involving discipline based upon employee conduct on social media sites and (2) those challenging employer social media policies as overbroad and unlawful restrictions on employees’ rights under the NLRA.  With the stated intention of offering assistance to labor law practitioners and HR professionals, NLRB Acting General Counsel Lafe Solomon issued a report this past August explaining the rationale underlying the OGC’s decisions in a sampling of the key social media cases within the last year (OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases). 

When is employee conduct on social media sites protected by the NLRA?

The cases to date make clear that existing standards defining protected concerted activity will be used to evaluate employees’ social media activities.  Non-union employers must not lose sight of the fact that their employees are also protected by the NLRA and these standards apply whether or not employees are represented by a union. 

  • An employee’s activity is concerted when the employee: 
    • acts with or on the authority of other employees;   
    • seeks to initiate or to induce or to prepare for group action;
    • brings “truly group complaints” to management’s attention. 
  • Discussions between or among employees must be “a logical outgrowth” of group action or collective goals. 
  • An employee’s activity is not concerted when the employee acts alone or on behalf of him or herself, regardless of whether other employees may benefit and regardless of whether the object of the employee’s action is something about which other employees would be concerned.   
  • Disparaging comments about an employer, including supervisors, are generally protected, but they may lose the Act’s protection when they: 
    • are unrelated to a dispute over working conditions; 
    • focus only on the employer’s products or business policies, particularly if the criticism comes at a “critical time” for the employer 
    • are reckless or maliciously untrue; 
    • are appeals to racial, ethnic or similar prejudices; o 
    • are insulting or obscene personal attacks that cross an ill-defined “I know it when I see it” line of propriety.

The difficulty of applying these principles to social media cases is aptly illustrated by the first “Facebook” case to be decided by an ALJ, Hispanics United of Buffalo, Inc., which was decided on September 2, 2011.  In that case, the ALJ found that a nonprofit, non-union employer violated the NLRA by terminating five employees who had engaged in protected concerted activity.  Specifically, they had engaged in a Facebook discussion concerning another employee’s criticism of their job performance that included vulgar language.  In so ruling, the ALJ recognized that individual action can be protected as concerted action as long as it is engaged in with the object of initiating or inducing group action.  The facts of the case, however, indicate that there was no evidence of the terminated employees’ intent to take group action beyond their Facebook postings.  The ALJ nonetheless concluded that the terminated employees were “taking a first step towards taking group action,” and by terminating them, the employer prevented them from taking any further group action.  

Distinguishing Hispanics United from cases in which no concerted activity was found -- e.g., where an individual employee posted a complaint that received supportive messages from co-workers but did not otherwise manifest any intent to induce group action -- can be challenging.  For example, in another case discussed in the Acting GC’s report, Wal-Mart, No. 17-CA-25030, the OGC declined to issue a complaint where an employee was disciplined for posting vulgar comments to his Facebook page that were critical of local store management.  Although other employees submitted supportive comments, the OGC found that the postings were an expression of an individual gripe that was not protected concerted activity.  In so finding, the OGC noted that the Facebook posts contained no indication of the employee’s intent to initiate or induce group action – just like the Facebook posts in Hispanics United.  

Though the Wal-Mart case and several others described in the Acting GC’s Report manifest the OGC’s recognition that there are limits to the scope of protected concerted activity in the social media context, the conclusion by the ALJ in Hispanics United that the terminated employees’ Facebook posts were protected because they were “taking a first step towards taking group action” presents employers with the difficult task of deciding when to infer an individual employee’s intention to take group action and when to treat a post as an individual complaint.  In this regard, the fact that all five employees who participated in the Facebook exchange were terminated was significant.  The ALJ specifically found that the employer’s termination of all five employees for their Facebook postings established that the employer viewed the five as a group and that they were engaged in concerted activity.  

Though these cases are highly fact-specific, and though application of the operative legal principles to the facts of each case can be difficult, a few guidelines do emerge from the body of cases reported thus far: 

  • Employee conduct on social media sites that expressly engages co-workers or seeks to promote group action with respect to an issue related to terms and conditions of employment will be protected.
  • An individual employee’s social media post will likely be protected if it suggests implicitly or explicitly an intention to promote group action or support, particularly if it solicits co-worker comments.
  • An individual employee’s social media post that does not expressly solicit co-worker input but nonetheless generates co-worker comments that grow into a substantive conversation concerning terms and conditions of employment may well be protected.
  • An individual employee’s social media post that is neither directed to co-workers nor engages co-workers, or a post that does not address issues of mutual concern to other employees will likely be treated as an unprotected individual gripe or complaint.
  • Disparaging comments concerning the employer and/or supervisors will be protected, even if they include vulgar or rude language, unless they are so outrageous or offensive as to lose the protection of the NLRA.
  • Discriminatory comments or posts that advocate unlawful action will not be protected.

In applying these guidelines, employers are well advised to consider the NLRB’s renewed emphasis on protecting employee rights to engage in protected concerted activity, as well as its general interest in expanding employee access to digital media and facilitating employee communication.  They should also be mindful of the Acting General Counsel’s aggressive posture in these cases.  Accordingly, before implementing disciplinary action, employers should consult with counsel and carefully weigh the risks of running afoul of the emerging law in this area.

What is the lawful scope of a social media policy?

As in the employee discipline cases, cases involving challenges to employers’ social media policies as overbroad and unlawful restrictions on employee rights under the NLRA have also, thus far, applied well-established legal principles without modification or adaptation to any particular attributes of social media communications: 

  • An employer violates NLRA Section 8(a)(1) through the maintenance of a policy that “reasonably tends to chill” employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 
  • If the policy does not explicitly restrict Section 7 activities, it is unlawful only upon a showing that (1) employees would reasonably construe the language to prohibit protected activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of Section 7 rights.

As in the social media disciplinary cases, the cases involving challenges to social media policies are highly fact-specific.  Examples of unlawful policies addressed in the Acting GC’s Report include:

  • Prohibition against posting pictures that depict the company was unlawfully overbroad because it would prohibit employees from engaging in a protected activity like carrying a picket sign or wearing a t-shirt portraying the company’s logo in connection with a labor dispute.
  • Prohibition in hospital social media policy against communications that compromise privacy, embarrass or defame the hospital or its staff, or damage the goodwill of the hospital was unlawfully overbroad where the policy did not define what the hospital considered to be private or confidential, nor did it contain a disclaimer informing employees that it did not apply to protected Section 7 activity.
  • Prohibition against posting anything that would disclose “inappropriate or sensitive” information about the employer was unlawful in the absence of any definition or guidance as to the nature of the prohibited subjects.
  • Prohibition against using the company name, address or other information in employees’ personal profiles was unlawfully overbroad because it interfered with employees’ ability to find and communicate with their coworkers on-line and was not narrowly drawn to protect a legitimate interest of the employer.
  • Prohibition against revealing personal information regarding co-workers without their consent was unlawfully overbroad and could be reasonably interpreted as restraining employees’ Section 7 right to discuss wages and other terms and conditions of employment.
  • Prohibition against “disrespectful conduct” or “rude or discourteous behavior,” was unlawfully overbroad where the policy did not contain a disclaimer informing employees that it did not apply to protected Section 7 activity.

Two unifying themes emerge from the unlawful policies summarized in the Acting GC’s Report:

  1. They were not narrowly tailored to serving a well-defined, legitimate business need; and
  2. Their broadly worded prohibitions could reasonably be read to restrict employees’ exercise of protected Section 7 rights and they did not disclaim any such unlawful intention. 

Indeed, one of the lawful policies addressed in the Acting GC’s Report aptly illustrated these points.  That policy instructed employees to respond to all media inquiries by (i) replying that that they were not authorized to comment for the employer or did not have the information being sought, (ii) taking the name and number of the media organization, and (iii) relaying the information to the employer’s public affairs office.  The OGC concluded that this policy was lawful because it served the employer’s legitimate business interest of communicating to the media with one voice, and it was not so broadly worded as to lead employees reasonably to think they were prohibited from exercising Section 7 rights to talk to the media on their own behalf about their working conditions.

Employers are well-advised to implement and enforce social media policies.  Whether the workplace is unionized or not, however, such policies must not be so broadly worded as to explicitly or implicitly restrict employees’ right to engage in protected concerted activities or to discourage (or “chill”) employees’ exercise of their rights.  Policies should clearly articulate the legitimate business interests sought to be protected or achieved through the policy, and the restrictions should be narrowly tailored to serve those legitimate interests.  Though disclaimers are not required, and though they do not, in and of themselves, provide an absolute defense, the inclusion of express language disclaiming any intention to restrict employee rights under the NLRA can be helpful to defeat claims that employees may reasonably interpret the policy to restrict their rights.

This is a rapidly evolving area, and with so many cases in the pipeline, the law is sure to continue to develop.  We will keep you posted on those developments.

NLRB: All Employers Must Post Notice Informing Employees Of Rights Under NLRA

Posted by Mark Theodore on August 25, 2011

Concluding that "many employees protected by the NLRA are unaware of their rights under the statute," the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf.  As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content and size of which has tentatively been decided to be the same as the notice currently required to be posted by federal contractors.pdf pursuant to Executive Order.  The NLRB says it will make the notice available at no cost to employers who will be able to get it from the NLRB offices or electronically through the NLRB's website.

There is no recordkeeping requirement; however, failure to post a notice would be considered an unfair labor practice.  Although the Board has indicated such a violation would be technical, in reality a failure to post could have serious implications.  As the Board noted in its FAQs on this issue:

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent.  In such cases, the unfair labor practice cases will be closed without further action.  The Board may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willingly fails to post the notice, the failure may be considered evidence of unlawful motivation in an unfair labor practice case involving any other alleged violations of the NLRA.

Although unstated, the failure to post could have serious consequences in representation campaigns and elections as well.  As we previously noted, the NLRB has held that an overbroad handbook provision could result in the results of an representation election being overturned, even when there is no evidence the employees even were aware of it.  The same reasoning would apply here:  a violation of the law, even a technical and arguably inconsequential one, could be deemed enough to overturn an election.

Overall, the rulemaking itself is not terribly surprising.  The NLRB recevied 7,034 comments (some of which it acknowledges were counted twice because they were filed electronically and by mail), which, in today's labor relations climate, ran along the spectrum of "You should do more" to "You can't do it because it you don't have the authority."  Weighing in at 194 pages, the bulk of the final rule is made up of the NLRB discussing the comments it received.  For example:

The contention that the right to refrain from union activity is "buried" in the list of affirmative rights or that the Board is biased in favor of unionization because of the choice of placement is with out merit.  The list of rights in the proposed notice is patterned after the list of rights in Section 7 of the NLRA. . .

The takeaways for employers:

  • Unless successfully challenged, the notice must be posted as of November 14, 2011.
  • The notice must be posted where other notices for employees are customarily posted.  If the employer makes such notices available on an intranet, it must do so in this case as well.
  • There is no recordkeeping requirement, but failure to post is an unfair labor practice.
  • The failure to post could have implications on other unfair labor practice situations and representation elections.
  • The notice must be posted even in places where a union is already in place.
  • Post it.  It is not worth the hassle to not do so.

 

 

 

NLRB to Healthcare Employers Facing a Strike: You Can Ask, But Employees Don't Have to Tell

Posted by Scott Faust on July 06, 2011

In a 2-1 decision issued on June 30, 2011, the NLRB clarified the interplay of the statutory notice requirements of NLRA Section 8(g) with a health care employer’s right to poll individual employees’ intention to report to work during a strike and the employer's right to enforce neutral work rules requiring patient care employees to provide advance notice of absence.  In Special Touch Home Care Services, Inc, 357 NLRB No 2 (2011).pdf, the Board: 

  • confirmed that Section 8(g)’s requirement of ten days’ advance written notice of a strike at a healthcare institution applied to unions only and did not apply to individual employees; and  
  • ruled that a home health agency violated the NLRA by failing immediately to reinstate striking home health aides who failed to provide notice of their intent to strike in response to the employer’s pre-strike poll or otherwise comply with the employer’s non-discriminatory rule requiring advance notice of absence. 

NLRA Section 8(g) requires unions to provide healthcare employers with ten days advance written notice of a strike.  In Special Touch, a union that was attempting to organize the employer’s home health aides provided a Section 8(g) notice that employees would be engaging in a three-day strike.  Upon receipt of the notice, the employer polled employees scheduled to work during the impending strike.  Of the employees polled, 75 who participated in the strike informed the employer of their intention to do so.  Forty-eight employees also participated in the strike but failed to provide any notice of their intent to do so, either in response to the employer’s poll or by otherwise providing notice of their absence in accordance with the employer’s call-in rule requiring at least two hours’ advance notice of absence.  After the strike, the employer immediately reinstated the 75 employees who had provided notice.  The remaining 48 employees were not immediately reinstated, and some of those who eventually were reinstated did not return to their previous position. 

The Board’s decision in Special Touch was rendered in response to a specific question asked by the Second Circuit in connection with its remand of the Board’s petition seeking enforcement of a prior ruling against the same employer.  Special Touch Home Care Services, Inc, 351 NLRB 754 (2007).pdf.  In partially denying enforcement, the Second Circuit identified the need to balance several competing interests and instructed the Board to determine whether the employer 

may enforce its call-in rule and mandate compliance with its [pre-strike] survey, reasonably relying on the results of both, in light of Section 8(g)’s requirement that only unions and not individual employees are required to give notice to health care employers. 

NLRB v. Special Touch Home Care Services, 566 F.3d 292, 300 (2d Cir. 2009). 

The Board concluded that Section 8(g) already struck a careful balance of the parties’ competing interests: by requiring unions to give ten days’ notice of a strike, Section 8(g) protects healthcare employees’ right to strike while ensuring healthcare institutions have sufficient advance notice of a strike to permit them to arrange for continuity of patient care.  The Board rejected the employer’s arguments that it was entitled to punish striking employees who violated its call-in rule and/or who did not respond truthfully to the employer’s pre-strike survey, stating that to do so would “effectively impose an individual notice obligation on health care employees, when Congress chose not to impose any such obligation.”  The Board did recognize that healthcare employers, like non-healthcare employers, can discipline particular employees who cease work without taking reasonable precautions to protect the employer’s plant, equipment or patients “from reasonably foreseeable imminent danger due to sudden cessation of work,” but it concluded that the facts of the case did not meet that standard.

In dissent, Member Hayes concluded that the employer had a compelling business justification for requiring compliance with its call-in rule and that the corresponding burden on employees’ exercise of their right to strike was minimal.  In his view, an appropriate balance could be struck by requiring employees who did not want to disclose their intent to strike in response to the employer’s poll to simply call in to report that they would be absent without identifying any reason.  Indeed, he suggested, the Board’s ruling “gives unions and their employee supporters the opportunity to increase the disruptive impact of a strike by deliberately giving false answers in response to a poll, thus eviscerating the poll as an effective aid in arranging for continuing patient care.”

So what’s a healthcare employer to do upon receipt of a Section 8(g) strike notice?  Can it ask employees whether they intend to report to work during the strike?

Healthcare employers clearly have the right to poll employees to assess the need to arrange for replacement workers.  The Board in Special Touch reaffirmed prior decisions holding that employers conducting such a poll must:

  1. explain fully the purpose of the questioning;
  2. assure the employees that no reprisals will be taken as a result of their response; and
  3. refrain from otherwise creating a coercive environment.

Citing, Preterm, Inc 240 NLRB 654 (1979).pdf.  Special Touch makes equally clear, however, that employers have no means to compel truthful responses to their poll, nor may they rely upon existing work rules requiring employees to provide advance notice of an absence.  Thus, if a healthcare employer decides to conduct such a poll, it must assess the reliability of the poll results and balance that reliability assessment with the costs associated with arranging for contingency staffing and the impact on patient care if insufficient staffing is available during the strike.

Settlement Reached In NLRB Facebook Posting Case

Posted by Mark Theodore on February 07, 2011

The infamous NLRB Facebook posting has been resolved, leaving with barely a whimper as opposed to the explosion of social media induced unfair labor practice charges every employer feared. 

The NLRB announced on February 7 that settlement had been reached in the case of the ambulance driver who was discharged for posting negative comments about her supervisor on her personal Facebook page.  The employee used the ambulance service's code for "mental patient" to refer to her supervisor in the Facebook posting, a comment which prompted other employees to respond.  The employer discharged the employee for violating its internet and blogging policy, which prohibited disparagement of company officials.  According to the NLRB Facebook Settlement Press Release.pdf the NLRB's complaint alleged

that the discharge violated federal labor law because the employee was engaged in protected activity when she posted comments about her supervisor, and responded to further comments from her co-workers.  Under the National labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers, and others.

The NLRB announcement states the company, American Medical Response of Connecticut, Inc.,

agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they woudl not discipline or discharge employees for engaging in such discussions.  

The discharge itself was "resolved through a separate, private agreement between the company and the employee."  No information about whether the employee was reinstated or received any backpay compensation was provided.

The original complaint garnered widespread media attention because of the nature of the "discussion" among employees taking place on the popular social media tool, instead of around the water cooler.  We previously reported on it in a Client Alert NLRB "De-Friends" Employers In Its First Complaint Based On Employee's Facebook Comments where we included a summary of the law concerning protected concerted activity.

In terms of development of the law, the settlement was rather ordinary.  It has been NLRB policy for many years to pursue complaints against employers maintaining policies that the agency determines are so broad that they might inhibit employee activity protected under the NLRA.  The NLRB has determined that a variety of policies are overbroad, and therefore unlawful:  employer policies that limit employee discussion of terms or conditions of work (unless it involves confidential company information), employer policies that prohibit disparagement of company officials (employes have a right to speak negatively and complain), no solicitation polcies and policies restricting access to the employer's premises while the employees are off the clock.  It is good practice for employers, both union and non-union, to review policies periodically to ensure compliance under the NLRA.  The NLRB will issue a complaint even if an overbroad policy has not been enforced.

The recently settled Facebook case leaves some unanswered questions.  For example, at what point, if any, does a "disparaging" comment about a supervisor or the employer lose protection under the NLRA if it is published to hundreds of people who have no connection to the complaint?  And, under what circumstances can an employer be found to have engaged in surveillance by reviewing the comments posted on an employee's social media page?

The wait for an answer to these questions probably will not be long.  There are other cases involving social media working their way through the NLRB.