Labor Relations Update

As anticipated, the new election regulations adopted by the Board shortly before the holidays are set to go into effect as planned on April 30, 2012.  In anticipation of this event, Acting General Counsel Lafe Solomon issued  GC 12_04 Guidance Memorandum on Representation Case Procedure Changes.pdf, a 24 page guidance to the Regional Offices on how to implement the Final NLRB Election Rules.pdf. The Acting General Counsel noted that "[o]ver the course of its history the Board has, from time to time modified its representation procedures to increase efficiency, prevent parties from abusing the process, and eliminate unnecessary delay in the resolution of questions of representation."

Despite this lofty goal, it seems that, as with virtually everything the Board does these days, the Guidance Memorandum is much more likely to raise more questions than it will answer.  It certainly will remain controversial.

The main question is: do the new rules change the timeframes for holding elections?

 The answer is yes, but only if the employer contests the petitioned-for unit.  

The Guidance Memorandum states, "The final rule does not establish new timeframes for conducting hearings or elections."  This is sort of accurate.  The new regulations do not alter the timing of representation elections where the parties agree on the voting unit and the election is held by Stipulated Election Agreement.  

The new regulations, however, absolutely alter the timeframes for conducting elections if the employer contests the petitioned-for unit.  If the employer decides it does not agree with the unit sought by the union, then the new regulations empower the Regional Director to curtail all aspects of bargaining unit litigation, the only point of which is to shorten the timeframe.  The Guideline Memorandum notes the new regulations allow the regions to:

•  Issue a notice to show cause, which "elicits the functional equivalent of an offer of proof, and permits the regional director to determine whether to conduct a hearing and the regional director and hearing officer to plan for permitting or precluding litigation on certain or possibly all issues."  p. 17.  In other words, the employer will have to convince the Regional Director that its proof is worthy of a hearing but the discretion remains with the Regional Director.
• Post-hearing briefs.  The Guidance Memorandum notes the "revised rules give the hearing officer discretion related to the filing and content of post-hearing briefs to regional directors..." and "The hearing officer should consult with regional management before determining whether to permit briefs."  p. 17.  The regulations give the Regional Director power to determine whether he or she will consider written legal arguments related to the hearing (if he or she grants a hearing).
• Timing of election after decision. Curiously, the Guidance Memorandum states, "As soon as possible after issuance of a regional director's Decision and Direction of Election, the decision should be emailed or faxed tot he parties so that they have an opportunity to revise (or state) their position on the method, date, time and place of the election. The Board agent will attempt to reach the parties as expeditiously as possible to obtain agreement before the region specifies the method, date, time and place of the election."   P. 21.  

All of this still leaves unanswered the question of how soon after the decision will the election be held.  We do know, although it is mentioned elsewhere in the Guideline Memorandum, that Section "101.21(d) [of the regulations] is amended to eliminate the recommendation...that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review."  P. 3.  So, an employer gives up the possibility of having at least 25 days in which to communicate with its employees in a campaign if it contests the voting unit.

But how much sooner than 25 days?  No one knows the answer definitively, but employers should consider this passage in the Guidance Memorandum:

As the Board acknowledged in its Notice of Proposed Rulemaking (NPRM)....a party may waive its right to have the voter eligibility list for 10 days....A new waiver form has been created for that purpose which permits waiving all or part of the the 10-day period.

What this means is that if an employer contests the unit, the election possibly could be directed in as little as a week after the decision.  How?  The Board requires the voter eligibility list (the list of employees entitled to vote) to be provided 7 days after a decision is made by the Regional Director on a unit issue.  Ordinarily, the union must be given 10 days to consider the list, which would put an election at 17 days after decision. Under the Guideline Memorandum, the Acting General Counsel points out that it is possible for the union to waive "all or part" of the 10 days.  

Unions do not usually waive the 10 day period, but we are likely to see this happen more frequently in contested unit cases (and perhaps even uncontested cases) after the new regulations go into effect.  This is because after the Board's decision in Specialty Healthcare, which we previously addressed here, here and here, the Board's new standard for determining the appropriateness of a bargaining unit incentivizes unions to petition for the smallest grouping of employees.  A smaller group of employees is more likely to be known by the union, and such knowledge makes having the voter eligibility list for a period of time less relevant.

In sum, the new regulations  greatly inhibit an employer's ability to contest a unit grouping by forcing an election in much shorter timeframe.

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.

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.

The Acting General Counsel of the NLRB, Lafe Solomon, continued to shake up the way matters are handled at the agency, by issuing new guidelines for the handling of pre- and post-arbitration cases.  The new policy guidelines will have an immediate impact on cases where the employent action (usually a discharge) has prompted both a grievance (alleging a violation of the collective bargaining agreement) and an unfair labor practice charge (alleging violation of the National Labor Relations Act).  The most important impact of these new guidelines is that it is now much more likely that should an employee not prevail in the grievance, he or she will still be able to seek the same remedies (reinstatement, backpay, etc.) through NLRB processes. 

Post Arbitration Deferral - The burden shifts. Up until the new guidelines were issued, the NLRB considered that an arbitration decision fullly resolved both contractual (grievance) and statutory (unfair labor practice charge) concerns where the arbitrator "was presented generally with the facts relevant to resolving the unfair labor practice."  See Olin Corp., 268 NLRB 573, 573-574 (1984).  Under this deferral policy, the employer needed only to try the case one time.  If the arbitrator ruled in favor of the employee, there usually was no need to pursue the unfair labor practice charge.  Likewise, if the employer won the arbitration, the NLRB typically took the position that no further processing of the NLRB charge was necessary, because the arbitrator had considered the same or a similar set of facts.

Concluding that this policy is "distnctly at odds with that which prevails in other areas of employment law," Solomon issued new guidelines for evaluating post-arbitration deferral issues.  Specifically, the GC Memorandum states that the Board should "no longer defer to an arbitral resolution unless it is shown that the statutory rights have been considered by an arbitrator."  Further, the guidelines now state that "the party urging deferral should have the burden of showing that the deferral standards articulated above have been met."

The new guidelines are significant, and likely will prolong the resolution of cases which are the subject of both arbitration and unfair labor practice charge allegations, because:

• Employers will now have to ensure that the arbitrator specifically considers the NLRA implications of the discharge.
• Because the Employer has the burden of proof in a dishcarge grievance, it will now have to prove as part of its case that it did not violate the NLRA. 
• Raising issues concerning the NLRA in a grievance arbitration necessarily will prolong the hearing itself because of the additional proof needed. 
• Raising an NLRA implication will force the Union to present its own evidence to support how the activity of the eployee's activity was protected by the NLRA.
• It likely will take longer to receive the arbitration award because the arbitrator now has to articulate in the decision how the facts are interpreted under both the NLRA and the parties' contract.
• The cost of arbitration will increase, because the possibility of having to re-litigate the same issue in front of the NLRB at a later date will cause more employers to call for a formal transcript of proceedings to memorialize witness testimony.  Arbitrations also could cost more because of the additional hearing and decision-writing time necessary to deal iwth the NLRA issue.
• An employer who prevails will now have to submit the arbitration to the NLRB for scrutiny.
• It is possible the NLRB could conclude the arbitration decision, though rooted in the same facts that led to the unfair labor practice charge, is not sufficient for deferral.  It is also possible the NLRB could conclude the arbitrator's decision did not sufficiently articulate the rationale concerning the NLRA or, simply, that the arbitrator was wrong.  Under any of these scenarios, the NLRB automatically would proceed to issue complaint on the unfair labor practice allegations, which would then be litigated through NLRB processes.

Pre-Arbitration Deferral.  In his GC Memorandum, Solomon also addresses pre-arbitral deferral.  Before the issuance of the memorandum, deferral of cases involving NLRA allegations was standard if there was agreement between the employer and union.  Noting that "substantial time may pass while the arbitration process proceeds when a case is deferred. . investigation of the alleged unfair labor practices is more difficult."  In order to prevent such hindrances to investigation, the Region should take affidavits "from the Charging Party, and from all witnesses within the control of the Charging Party," before deciding whether deferral is appropriate.

Like the new post-arbitration deferral guidelines, this policy can only make resolution of the issue harder, because:

• A person (or Union) filing an unfair labor practice charge now will have to swear under oath as to the undelrying facts; before the new guideline, the Charging Party need only have made allegations.  The requirement to articulate the allegations may only serve to raise the stakes as it provides a formalization (and therefore length) to the process.
• Once the allegation has been articulated to the NLRB the Union and the employee will pursue it to its fullest extent at the grievance hearing.

 Under these new pre- and post-arbitration guidelines, the probablility of the process for resolution  of the issue taking longer and costing more seems high.  Employers now have to be very careful in deciding whether it is even worth deferring a case to arbitration, and if it is, how additional scrutiny can be kept to a minimum. If a case is deferred to arbitration, the employer will have to  be much more careful in the selection of arbitrators to ensure that the NLRA implications are fully considered.

The General Counsel Memorandum, issued January 20, 2011 can be found here GC Mem 11 05 012011.pdf