Labor Relations Update

NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing

As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in The Boeing Company, 365 NLRB No. 154 (2017)Boeing established a balancing test that takes into account the employer’s legitimate business interest for the policy at issue, and the nature and extent of the potential impact on NLRA rights.  The new framework discarded the previous test of whether employees “would reasonably” construe the language to prohibit protected, concerted activity.

Since Boeing, the NLRB General Counsel issued an Advice Memorandum providing extensive guidance regarding the three categories of employment rules, policies and handbook provisions the Board would consider as part of the balancing test, and the Board has issued a number of decisions analyzing employer handbook policies with this in mind (which we have discussed here, here and here).

The Board’s recent decision in Medic Ambulance Service, Inc. and United Emergency Medical Service Workers, Local 4911, AFSCME, AFL-CIO, 370 NLRB No. 65 (January 4, 2021) is a continuation of the Board’s implementation of the Boeing analysis for facially-neutral employer policies.  The Board held that the employer’s social media policies did not violate the Act.  The policies included many common prohibitions seen in employee handbooks, such as prohibiting the right of employees to make inappropriate communications, disclose confidential information, use the company’s name or logo without approval, post photos of coworkers without consent, share employee compensation information, and disparage the company or others related to it via social media.

Background

Since June 2010, the employer – an emergency transportation and advanced life support ambulance operator – has maintained a number of policies governing employee social media conduct. Since April 2016, the handbook applied equally to both union-represented and non-union-represented employees. The union did not confer, bargain, or otherwise object to the handbook provisions until the filing of an unfair labor practice charge in 2017.

The union’s filing was prompted when the employer began enforcing the policies against bargaining unit members allegedly engaged in protected, concerted activity.

The union argued that the following social media policies violated the Act because they unlawfully interfered with their members’ exercise of Section 7 rights:

  1. Inappropriate communications, even if made on your own time using your own resources, may be grounds for termination. We encourage you to use good judgement when communicating via blogs, online chat rooms…
  2. Do not disclose confidential or proprietary information regarding the company or coworkers. Use of copyrighted or trademarked company information, trade secrets, or other sensitive information may subject you to legal action.
  3. Do not use company logos, trademarks, or other symbols in social media. You may not use the company name to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.
  4. Be respectful of the privacy and dignity of your coworkers. Do not use or post photos of coworkers without their express consent … [e]mployees must not post pictures of company owned equipment or other employees on a website
  5. All telephone calls regarding a current or former employee’s position with our company must be forwarded to your supervisor.
  6. Employees must not use blogs, SNS [(Social Networking Sites)], or personal Web sites to disparage the company, its associates, customers, vendors, business practices, patients, or other employees of the company.

The Administrative Law Judge recommended finding a violation of Section 8(a)(1) as to the policies referenced above.

Board Reverses ALJ, Holding The Employer’s Policies Were Lawful and Must Not Be Read in Isolation

In evaluating rules (1) through (5) above, the Board reversed the ALJ, and held that each of the social media policies referenced above was lawful.  The Board concluded these rules fell under  Category 1(a) under Boeing i.e., always lawful – because a reasonable employee would not interpret them as prohibiting the exercise of Section 7 rights, and any potential adverse impact is outweighed by the justifications.  Further, the Board stressed that it “must refrain from reading particular phrases in insolation,” and instead, the employer’s policies should be read as a whole.

Specifically, when read in context, the Board concluded the five policies were lawful, based on the following reasoning:

  1. “Inappropriate communications” rules are generally “always lawful,” and particularly here, a reasonable employee would read the introductory language in context of the specific guidelines that followed.
  2. A rule prohibiting the sharing of “confidential information,” which does not specifically identify employees’ contact information or terms and conditions of employment, is not unlawful when read in context.
  3. Prohibiting employees from using the company’s name in a social media post is not unlawful here, because the rule should be read in context of another rule that prohibits employees from speaking on behalf of the company, which the Board reasoned was the basis for the employer’s rule here.
  4. A rule prohibiting the posting of photos of employees without their consent was geared to protect employees’ privacy and confidentiality interests, and thus outweighed any perceived limitation on the exercise of Section 7 activity.
  5. A rule restricting employees from sharing employee compensation information was lawful because it was limited, in context, to when someone reaches out to the employee to request this sensitive information. It does not generally prohibit employees from discussing compensation information, which is quintessential protected, concerted activity.

The Board Also Concludes the Presumption of Employee Loyalty Made the Employer’s Non-Disparagement Rules Lawful  

The Board also reversed the ALJ and found that the employer’s policy prohibiting employees from making disparaging statements about the company or others associated with it to be lawful, citing recent precedent that employers have a legitimate justification, recognized by the Supreme Court, in being able to depend on the loyalty of their employees.

While the Board acknowledged that the non-disparagement rule could reasonably be found to infringe upon the exercise of Section 7 activity, given the “substantial” employer justification for the rule, the Board reaffirmed that such rules are lawful, on balance.

Member McFerran’s Dissent Foreshadows the Possibility of Change in the New Administration

Member McFerran submitted a pointed dissent, asserting that Boeing and its progeny represented an undesirable shift in the Board’s position regarding its evaluation of the lawfulness of workplace policies.

McFerran argued that each of the rules should have been found unlawful because they are overbroad infringements on Section 7 rights, and not narrowly tailored to promote a legitimate employer interest.

Specifically, McFerran sharply criticized the Board’s holding regarding the non-disparagement rule, noting that she has been troubled by the Board’s categorical determination that such rules are lawful on their face, without taking the time to balance the employee rights against employer interests.

Takeaways

The Board’s recent decision reaffirms the categorical analysis the NLRB has undertaken since Boeing regarding the lawfulness of employer handbook policies, and the plain fact that the current Board has been more apt to find facially-neutral handbook policies lawful when read, in context.  Indeed, by reading the allegedly unlawful rules “in context” of surrounding rules and policies and purported business justifications for the rules, the Board has found employer policies lawful, more often than not.  The same conclusions were drawn here.

In addition, the Board has lent credence to employer justifications for non-disparagement clauses, finding them categorically lawful — even if the purported justifications are not specifically illustrated in the policies.

While the composition of the Board will not change at least until Member Emanuel’s term expires in August 2021, Member McFerran’s sharp dissent likely foreshadows how the Board may evaluate the lawfulness of the same policies in the future.  In other words, there likely will be a change in direction and many employer policies found lawful today could be considered unlawful in the future.  We will keep you posted.

Employer Leaves Lasting Impression…of Unlawful Surveillance

The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns.

Specifically, the Board held that a supervisor violated Section 8(a)(1) of the Act by creating the impression of unlawful surveillance when she told an employee that she was aware of his union involvement, but otherwise failed to provide context as to where or how the information was obtained. The Board also found that persistent questioning of an employee pertaining to the union by high-level management constituted unlawful interrogation under the Act.

Background

In July 2018, the employer – a hospital and healthcare facility operator – began receiving reports of union activity by employees, and commenced a responsive information campaign regarding why it believed unionization was inappropriate for its employees.

At an employer-held meeting on the issue of organizing, a supervisor “outed” an employee as having been contacted by the union and being involved in the organizing. To that point, the employee’s union activity was largely unknown. The employer learned of the activity through video supplied by another employee, but did not reveal that to the employee who was outed.

One month later, the employer approached that same employee at his workstation and repeatedly asked him about his union involvement. When the employee denied his union affiliation, the employer began repeatedly asking him to confirm his name – noting each time that the same name had been flagged as the culprit of the union organizing efforts. Following this incident, the employee sent a group email accusing the employer of unlawfully inquiring into his organizing efforts.

The union then filed an unfair labor practice charge. The ALJ ruled that the employer violated the Act by giving the unlawful impression of surveillance and by interrogation.

Board Held the Employer’s Failure to Identify Its Source of Knowledge Provided Reasonable Grounds to Support Impression of Surveillance

The NLRB General Counsel asserted that the employer’s conduct unlawfully created the impression that the employee’s protected activity was being unlawfully monitored. In response, the employer argued its conduct was merely a vague gesture that could not reasonably create the impression of unlawful surveillance.

The Boar disagreed. Drawing on a 2007 Board decision, the Board explained that, “[w]hen an employer tells employees that it is unaware of their protected activities, but fails to identify the source of this information, an unlawful impression of surveillance is created because employees could reasonably surmise that employer monitoring has occurred.”  Conley Trucking, 349, NLRB 308, 315 (2007).

The Board concluded that it was reasonable for the employee to conclude that the employer’s knowledge had come from surveillance, since the supervisor failed to otherwise identify the source of her knowledge after singling out the employee during the pre-shift meeting.

The Board Also Found That Repeated Questioning by Management Constituted Unlawful Interrogation

The complaint also alleged that senior management violated the Act because it unlawfully interrogated the employee, by asking him repeatedly if he had heard about the Union, and if he was the individual who was flagged as the union organizer.

The Board agreed, finding that, based on the totality of the circumstances, the employer’s conduct was reasonably likely to restrain, coerce, or interfere with the employee’s right to engage in protected, concerted activity. In so deciding, the Board noted that while the questioning took place in a public area – the employee’s workstation – it remained unduly coercive due to the nature of the repetitive questioning, the insistence that the employee admit his affiliation or guilt, and the power imbalance between the parties involved.

Takeaways

This decision provides important guidance to employers as to when their conduct may tend to interfere with employees’ exercise of protected, concerted activities – which is particularly apt during a union organizing campaign.

First, the allegation of “impression of surveillance” is one of the more nuanced unfair labor practices. Under such an allegation, the employer is attempting to provoke a reaction by letting the employee know about his or her union activities. When addressing an employee’s union affiliation or organizing activities, the employer should not withhold the source of the information, as doing so likely will create the impression that the employee’s activities are being monitored and the employee is being subjected to unlawful surveillance.

Second, unlawful interrogation by employers – which also violates the Act – need not be confined to “closed door” conversations in formal settings. Rather, the test for interrogation is based on the totality of the circumstances, taking into consideration the power imbalance between the parties, the repetitiveness of the questioning, and the length of time over which the questioning took place. Employers should thus avoid persistent questioning of employees with regard to their protected, concerted activities.

NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful

In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it is against federal law for a labor union to threaten employees, did not violate the NLRA because it did not constitute the promulgation and maintenance of a new policy, as the union alleged.

Factual Background

In late 2018, the employer, which sold, installed, and serviced HVAC systems, became the target of unionization efforts.  Eventually, the union brought multiple unfair labor practice charges against the employer, many of which the ALJ agreed constituted unlawful conduct.

While these “persistent and wide-ranging unfair labor practices” convinced the ALJ, and later the NLRB, to favor a broad cease-and-desist order against the employer, the ALJ was not convinced by certain allegations that a leaflet issued by the employer violated the Act.

The employer distributed a leaflet to most employees with their mailed paycheck stubs, which depicted one faceless figure jabbing its finger in another’s face and contained the following bullet points:

  • We are being told that some Sheet Metal union supporters are threatening some of our workers.
  • It is a violation of Federal Law for a labor union to threaten employees.
  • It is also a violation of Appalachian Heating’s anti-harassment policy, which says in part, “…Appalachian heating is committed to a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promoted equal employment opportunities and prohibits unlawful discriminatory practices, including harassment…”
  • Let me remind each of you that, although we respect the rights of our workers to support or not support a labor union, we will not permit anyone to violate the legal rights of our employees who wish to fight for or against a labor union.
  • Anyone caught threatening our employees or otherwise violating their rights will be subject to criminal prosecution to the fullest extent of the law.
  • Appalachian Heating will protect all of our workers and will not tolerate threats or harassment!

If you feel your rights to support or not support a labor

union are being violated you are free to contact the

NLRB:

National Labor Relations Board John Weld Peck Federal

Building 550 Main Street, Room 3003

Cincinnati, OH 45202-3271

513-684-3638

Information.Officer@nlrb.gov

 

Board Finds the Leaflet is Not Reasonably Understood to Constitute a New Rule or Policy

The NLRB GC alleged that the leaflet, by including reference to the employer’s anti-harassment policy alongside notice of potential penalties for violating federal labor law, effectively constituted a new policy.  The alleged new policy amended the existing anti-harassment policy to include criminal prosecution.  If true, then the promulgation of a new disciplinary rule during a union organizing campaign violated the Act because it fails to maintain the status quo during this period.

However, the NLRB was unconvinced and adopted the Judge’s recommendation that the Employer had not promulgated a new rule or policy.

First, the Board summarily dismissed the GC’s promulgation theory, stating that the insert cannot reasonably be understood as a statement of or promulgation of a new rule.

Second, both the Complaint and GC’s brief misrepresented language not in the leaflet as a direct quotation.  Both filings claim that employer created the following rule: “That anyone who violates the anti-harassment policy or is caught threatening employees or otherwise violating their rights will be subject to the fullest extent of the law.”  This language does not appear in the insert.  While the ALJ did not attribute the inaccuracy to “design” instead of “error,” it nevertheless dismissed this allegation, which the Board affirmed.

Board Also Finds the Leaflet is Not an Unlawful Threat

Alternatively, the GC argued that the insert threatened employees for engaging in union activity.  The NLRB agreed with the ALJ’s decision not to consider this argument, as it was not pled in the original Complaint.

Member McFerran Dissented, which Could Foreshadow How the Future Board May Rule

Member McFerran dissented, finding that the GC properly pled the alternate theory that the leaflet constituted an unlawful threat in violation of Section 8(a)(1) of the Act.  McFerran concluded that the leaflet was an unlawful threat because the employer equated union activity with unlawful harassment under its workplace policy in the context of what the NLRB admits were wide-ranging antiunion efforts.  In addition, the “coercive effect of this threat was heightened by the fact that employer conveyed it to employees alongside their paychecks.”

McFerran’s colleagues directly responded to this argument.  For the Majority, even if this theory had been adequately pled, the leaflet was not a threat because it specifically provided that employees should contact the Board’s regional office where their rights “to support or not support a labor union” were violated, and that the Employer “w[ould] not permit anyone to violate the legal rights of our employees who wish to fight for or against a labor union.”  (Emphasis added).  According to the Majority, the leaflet merely reminded employees of their Section 7 rights–including the right to join or not join a union.

Takeaways

This decision provides important reminders to employers during a unionization effort.

First, employers may not issue new rules or policies after becoming aware of a union organizing effort–and certainly not after a representation petition seeking an election has been filed with the Board.  Employers must maintain the status quo during this period, which the Board calls the “critical period.”  This is true regardless of whether the policy benefits or harms the employees.  In this case, the Board found that the leaflet did not constitute the promulgation of a new rule or policy, but merely reinforced application of an existing one, so no violation was found.

Second, it is permissible to remind employees of their rights under the National Labor Relations Act, including their ability to avail themselves of legal recourse through the NLRB if they believe those rights are being violated.

Though the Board did not consider the GC’s alternative argument that the leaflet, in whole, constituted an unlawful threat, the Majority’s rebuttal to Member McFerran’s dissent on that topic may be most helpful for those seeking guidance from the decision.  There, the NLRB made clear that the objective language of the leaflets which appear impartial and merely remind employees of their Section 7 rights and their ability to engage in protected, concerted activity–in this case, clarifying that federal labor law protects both those supporting and opposing unionization–likely would not be deemed unlawful threats against protected, concerted activity.

Member McFerran’s dissent focused more squarely on the circumstances of the leaflet, as a whole, to find a violation under this alternative theory, such as the fact that it was attached to the employees’ paystubs, and in context of the broader, alleged anti-union efforts engaged in by the Employer.  Given that the composition of the Board will start to change after August 27, 2021 (when Member Emanuel’s term ends), McFerran’s reasoning may inform how a newly constituted Board decides this allegation in the future.

NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line

When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to union activity (extremely rare), or – as is far more common – where an inference may be drawn based on all the circumstances. As the Board has previously explained, this union animus must be the motivating factor behind the adverse employment action in order for an employer to be liable for violating the Act.

On December 3, 2020, the Board, in Volvo Group North America, LLC, 370 NLRB No. 52 (2020), discussed the sufficiency of evidence in drawing an inference of union animus in Section 8(a)(3) complaints alleging that the employer violated the Act in taking an adverse employment action against an employee because of union or other protected concerted activity.  The ALJ concluded the employer violated the Act for issuing a written warning to an employee for allegedly violating a rule against wasting time based on the following facts: the employer failed to investigate the misconduct; the employer allegedly disparately treated the employee; and the supervisor allegedly made discriminatory statements.

On appeal, the Board re-affirmed the necessary proof for the General Counsel to satisfy its burden under Wright Line, which must be more than a preponderance.  In this case, the Board concluded that the evidence to support an 8(a)(3) violation was wanting and reversed the ALJ.

Background

The employer operates a distribution warehouse where it stores truck parts. An employee (the “Charging Party”) worked in the employer’s distribution facility as a warehouse operator where he was responsible for transporting inventory between warehouse storage and the loading docks for incoming and outgoing shipments. The employer utilized a tracking system to monitor employee movements in the warehouse and record employee productivity by scanning employee pickup and drop-off of inventory in the warehouse. Comparing the time stamps of the inventory scans allows the employer to monitor employee productivity, and excessive time gaps between scans could alert the employer to employees engaging in time-wasting activities.

The Charging Party was a vocal union supporter who frequently engaged in union activities, and often voiced concerns during pre-shift meetings. The Charging Party had a disciplinary history prior to the incident at issue in this case, involving verbal and written warnings for safety and work quality issues and non-disciplinary coaching for wasting work time. The non-disciplinary coaching was provided in response to two incidents where the Charging Party was observed in the breakroom before his scheduled break and where the employer’s logs indicated poor productivity. The Charging Party did not grieve any of these disciplinary actions and did not allege in the unfair labor practice charge that these actions were unlawful.

Rather, the unfair labor practice charge was filed in response to a written warning the Charging Party received after a supervisor reported seeing him in the breakroom 25 minutes before his scheduled break-time. As the Charging Party had already received non-disciplinary coaching for taking an early break, the employer issued a written warning for violating the employer’s policy against wasting time during work hours.

The Charging Party attempted to refute the supervisor’s account and requested the employer review his logs. The Charging Party admitted to being in the breakroom earlier than the scheduled break-time, but denied he did so 25 minutes early and argued that there were other employees in the break-room with him who were not disciplined. The employer reviewed the logs but declined to rescind the written warning after finding that the Charging Party’s logs showed extensive, unexplained time gaps between scans on several different dates.

Analysis

As noted above, the ALJ found that the employer violated Section 8(a)(3) of the Act by issuing a written warning.  While the Board agreed with the ALJ that the General Counsel established the Charging Party’s union activity and the employer’s knowledge of it, the Board disagreed with the ALJ’s finding that the General Counsel sustained his burden of proving that the employer harbored animus toward the Charging Party’s protected activity. Rather, the Board found that, based on the record as a whole, there was neither direct evidence of union animus nor any reasonable basis for inferring animus toward the protected activity.

First, the Board reasoned that the record failed to establish that the discipline was either unjustified or constituted a break in the employer’s normal practice. Therefore, the circumstances did not support the argument that the employer’s discipline of the Charging Party was motivated by union animus. Although the parties disagreed on the timing of the Charging Party’s early break, it was undisputed that the Charging Party was in the breakroom prior to the scheduled break time. The Charging Party had a documented history of taking early breaks and received verbal warnings and coaching for this misconduct, as well as other time-wasting activity. The General Counsel failed to establish that the employer’s discipline of the Charging Party was inconsistent with the employer’s treatment of other similar incidents.

The Board also found that the timing of the discipline relative to the timing of the Charging Party’s protected activity weighed against a finding of union animus where the protected activity occurred months before the written warning. In fact, shortly after this protected activity, the Charging Party took an early break and had productivity issues for which the employer did not discipline the Charging Party. The written discipline was issued after the Charging Party took another improper break, which supports the position that the Charging Party was disciplined for his recidivism — not for his protected activity.

Next, the Board reviewed the facts on which the ALJ premised her inference of union animus:

  • Failure to Investigate: In some cases, an employer’s failure to investigate misconduct can be a sign that its discipline was really for another purpose, such as union activity.  Here, the Board found that the employer was under no obligation to investigate before issuing a warning and did not otherwise have a practice of conducting pre-discipline investigations.  Thus, the evidence did not support an inference of animus.
  • Disparate Treatment: The Board concluded that the evidence failed to establish that other employees were in the breakroom with the Charging Party, which dispelled the Charging Party’s disparate treatment claim. The Board also rejected the ALJ’s reliance on a note entered into evidence from a meeting held long after the incident that was ambiguous and likely constituted double hearsay, and the only other evidence of the presence of other employees in the breakroom was the testimony of the Charging Party—but significantly the ALJ did not rely on this testimony, presumably because she did not find the Charging Party to be a credible witness.
  • Supervisor’s Statement: The ALJ inferred union animus from a statement by a supervisor that he had “concerns” about the Charging Party’s interruptions at pre-shift meetings, where “some” of the interruptions involved issues that were, as the ALJ described, “rooted in the collective bargaining agreement”. However, the Board found that this was not enough for the General Counsel to show that the employer had concerns about some of the Charging Party’s conduct and that the Charging Party had engaged in protected activity. Under Wright Line, the General Counsel was obligated to demonstrate a connection between the employer’s concerns and the Charging Party’s protected activity in order to establish union animus. The record showed that only some of the Charging Party’s interruptions during pre-shift meetings involved contractual issues, and the General Counsel did not prove that the employer’s stated “annoyance” was directed at the Charging Party’s protected activity.

Finding that the General Counsel did not sustain his burden under Wright Line of proving by a preponderance of the evidence that the Charging Party’s protected activity was a motivating factor in the employer’s decision to issue a written warning for wasting time, the Board dismissed the complaint allegation based on this discipline.

Takeaways

The Board’s decision confirms that the Board views the General Counsel’s burden of proving union animus as requiring more than unsubstantiated claims of unfairness or out-of-context statements. Rather, the General Counsel must provide evidence, grounded in fact, of a causal connection between an employee’s protected activity and the employer’s adverse employment action against the employee. The Board’s decision represents a stricter interpretation of the law regarding the General Counsel’s burden of proof under the Wright Line analysis; one cannot help but wonder how long this application of the Wright Line analysis will last with the upcoming change in administration. Only time will tell, and, as always, we will be closely monitoring the situation for any signs of impending change.

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

As we have often discussed, there is a fine line between protected and unprotected activity.  Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers.

On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of an employee engaged in protected activity may not be justified solely by its subjective belief that the employee misbehaved.  Rather, the employer must demonstrate that the purported misconduct actually occurred to implement discipline.  This determination may be quite challenging in light of conflicting employee statements and prolonged, hotly-disputed factual contexts.  However, as this decision illustrates, an employer’s failure to reach the “correct” conclusion may lead to liability under the NLRA.

Background

In Nestlé USA, Inc., 370 NLRB No. 53 (2020), an employee and several co-workers submitted a signed petition to their employer complaining of verbal abuse and violations of internal safety protocols by a supervisor. The employer conducted an extensive investigation, and interviewed the complaining employee, his coworkers, and the accused supervisor.  At the last minute, the employee added that he was told by another co-worker about an incident in which the co-worker overhead the supervisor referring to three black employees as “monkeys” after they had trouble on the assembly line.  The employer determined that the allegations against the supervisor were valid, but did not address the allegedly racist comment.  The supervisor was given a verbal warning and a 1-2 week suspension.

Dissatisfied with the company’s response, the employee met with the plant manager to reiterate his complaint regarding the allegedly-racist comment, causing the investigation to be reopened.  During the renewed investigation, the employee made several verbal and written statements to the company, including:

  • that he had informed the black co-worker who was purportedly the subject of the supervisor’s racist comment and the co-worker expressed support for his complaint against the supervisor;
  • that another co-worker was made “uncomfortable” by the racist conduct of another, different supervisor; and
  • repeatedly expressing that he and his co-workers were unhappy with the employer’s response and wanted the supervisor to be removed.

In subsequent interviews, the employee was evasive about his conversations with his black co-worker and refused to answer several questions, and the employer received statements by the employee’s co-workers indicating that the employee’s complaints about the supervisor were motivated, at least partially, by a desire to take over the supervisor’s position.

Frustrated by the employee’s conduct, the employer first suspended him to prevent further interference with their investigation, and then terminated him for his dishonesty and refusal to cooperate with the investigation.

The Employee Engaged in Protected Activity

The ALJ determined that the employee clearly had engaged in protected concerted activity by submitting a complaint regarding the supervisor and found that his subsequent efforts were a logical continuation of that earlier activity.  The ALJ noted that the employee’s purported subjective reason for engaging in conduct— even if it was a selfish attempt to assume his supervisor’s position— was irrelevant to the question of whether his conduct was protected.  What mattered was that the employee served as a spokesperson for his co-workers’ complaints about the supervisor and that he sought to improve his co-workers’ working conditions.

The Employee Did Not Forfeit the Protections of the Act

The employer argued that even if the employee engaged in protected activity, his dishonesty during interviews by the employer forfeited the Act’s protections.  Specifically, the employer argued that the employee instigated his black co-worker to complain regarding the supervisor’s racist comment, even though neither the co-worker nor the employee had heard the comment firsthand.

Despite this complex factual record, which included multiple, often-contradictory statements by employees and numerous interviews, the ALJ ultimately determined that the employee had not acted dishonestly by reporting his black co-worker’s support of his complaint or repeating his other co-worker’s allegations about a different supervisor.

As a result, the ALJ found that there was no underlying misconduct which the employer could use to justify its disciplinary action.  The Board affirmed, citing NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964) for its holding that an employee’s discharge for misconduct during protected activity is justified only if the employee is “in fact, guilty of that misconduct”.

The Employee’s Conduct Outside of Protected Activity Did Not Justify His Termination

Alternatively, the employer argued that it fired the employee not due to his misconduct while engaged in protected activity, but due to his misconduct outside of protected activity.  Specifically, the employer claimed that during later interviews in the course of the investigation, the employee falsely attributed comments to his black co-worker and refused to cooperate by answering the employer’s questions. The Board found that the ALJ properly analyzed the company’s claim through the burden-shifting causation framework of Wright Line (251 NLRB 1083 (1980)), which evaluates whether an adverse action taken against an employee was motivated by protected activity or by a legitimate lawful reason.

The Board affirmed the ALJ’s finding that the General Counsel had satisfied its initial burden of showing that the employee engaged in protected concerted activity, which the employer knew of and that the employer demonstrated animus towards the protected activity. The Board also agreed that the employer had not met its burden to prove it would have discharged the employee absent his protected conduct.

The Board pointed to the ALJ’s earlier finding that the employee had not acted dishonestly to refute the employer’s claim that the employee falsely attributed comments to his black coworker.  As to the second rationale, the Board found the employer failed to provide evidence that it had a history of discharging employees based on their refusal to cooperate in internal investigations, and did not discipline two of his co-workers, who had refused to provide written statements.  Thus, the Board affirmed the ALJ’s conclusion that under Wright Line, the employer violated Section 8(a)(1) and interfered with the employee’s exercise of his rights under the Act.

Takeaways

Investigations into complaints protected by the Act often face complications due to how employees respond to questions which can fall along a spectrum from complete candor, to exaggeration, to evasion, and sometimes dishonesty by the employee.  This case is a reminder that often there is substantial overlap between what might be considered misconduct and what is protected activity, particularly where the factual record is complicated and hotly disputed.  It is often hard to extricate the two.  In other words, it is just plain risky to discipline or discharge an employee who may be engaging in misconduct during the course of a protected activity.

An employee’s reasons for engaging in workplace advocacy or other protected conducted—however arguably self-motivated—are immaterial to the objective determination of whether the conduct warrants protection under Section 7 of the Act.  Employers faced with similar situations should carefully review how they have responded to similar conduct by other employees before taking disciplinary action.  In this case, it was difficult to argue the misconduct warranted termination when there were other employees who received only a written warning.

A Bias Against Neutrality Agreements: NLRB Regional Director Issues Complaint against Hotel for Supporting Organizing Union

On November 30, 2020, the NLRB Regional Director issued a Complaint against the Yotel Boston hotel and Unite Here Local 26, alleging the Hotel unlawfully recognized and provided improper assistance to the Union.

The Hotel and the Union were parties to a neutrality agreement.  As is common in such agreements, the Hotel agreed to provide the Union with employee contact information and access to non-public parts of the property. The hotel allegedly also went beyond maintaining silence with management publicly expressing support for the Union.

The Regional Director’s decision to issue the Complaint comes several months after NLRB General Counsel Peter Robb issued a potentially precedent-shifting Guidance Memorandum that seeks to apply closer scrutiny to neutrality agreements.

Changes to Evaluating Neutrality Agreements in GC Memorandum

In his September 2020 memorandum, General Counsel Robb proposed two key changes to current Board law.

First, the GC argues that employers should not be able to provide “more than ministerial aid” to unions during an organizing drive.  This is the current standard that applies to employer conduct in the decertification context. Currently, the Board applies a “totality of the circumstances” analysis to determine if an employer has provided too much assistance in supporting a union organizing drive.  The GC argued it is difficult to apply this multi-factor standard that lacks clear guidance as to what is lawful and yields inconsistent results.

Second, he seeks to overturn the Board’s decision Dana Corp., 356 NLRB 256 (2010), which held that neutrality agreements typically do not interfere with employee free choice and thus do not violate the NLRA. GC Robb advocated that the Board should also apply the “more than ministerial aid” standard to neutrality agreements.

GC Robb advocated using a bright-line test that would find a violation if, in a neutrality agreement:

(1) the parties negotiate terms and conditions of employment prior to the union attaining majority status;

(2) the parties agree to restrain employee access to Board processes and procedures; or

(3) the parties agree to any provision that is inconsistent with the purposes and policies of the Act, such as by impacting Section 7 rights by providing support of the union’s organizing activities, rather than neutrality.

It is the last point that goes after the neutrality agreements that are common in the hospitality and other industries.  Specifically, GC Robb provided examples of neutrality-agreement provisions that would be prohibited under the “more than ministerial aid” analysis:

  • Allowing non-employee union organizers access to employer facilities;
  • Allowing union solicitation during working time;
  • Providing a union with employee contact information; and
  • Making certain statements of preference for a specific union.

First Case Heading to the Board

The Memorandum did not create new law, but rather it demonstrates the prosecutorial priorities of the NLRB General Counsel and, now, with the Yotel case we see that Regions are following the directive.  This is a prime example of how Board law could ultimately be changed — from issuance of a Guidance Memorandum by the NLRB GC, through the issuance of a Complaint, and then through prosecution at the ALJ and then Board level.

Again, the state of the law has not changed and Dana Corp. has not been overturned with respect to the standard applied to neutrality agreements.  But if the GC’s position is ultimately adopted by the Board — which likely will not occur until late 2021, at the earliest, and given the new administration coming in January, will greatly depend on the composition of the Board at the time — then the implications will be significant with respect to whether employers may decide to enter into neutrality agreements and if so, the terms of those agreements.  Even prior to the adoption by the Board of the GC’s position, many employers and unions may decide to enter into far more vanilla neutrality agreements than they otherwise would have to avoid the uncertainty fostered by protracted litigation.

We will continue to monitor updates on these issues, and whether the standards advocated by the General Counsel become law.

D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning

On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units.

The Circuit also remanded the underlying unit certification decision to the Board, noting that the NLRB failed to persuasively distinguish relevant precedent presented by the employer and otherwise address the employer’s valid arguments.

Background

The Union initially petitioned the Regional Director to certify a single bargaining unit of hotel employees comprised of housekeeping and food and beverage employees—but excluding front desk employees. The Regional Director first considered whether the employees in the petitioned-for unit share a “community of interest,” and then if so, whether the proposed unit “share[s] a community of interest sufficiently distinct from employees excluded from the proposed unit to warrant a separate appropriate unit[.]”  The traditional “community-of-interest” factors include consideration of, among other things, job functions of the employees in question, department organization and terms and conditions of employment.

Under this standard, the Regional Director declined to certify the petitioned-for-unit, finding that the front desk employees were not sufficiently distinct from the other employees to warrant a separate unit.  However, in his conclusion, the Regional Director briefly suggested that separate units would be appropriate.

Taking the cue from the Regional Director’s suggestion regarding separate units, the Union filed two new petitions the next day to certify a unit of housekeeping employees and a separate unit of food and beverage employees. As before, the Union excluded front desk employees altogether. The Regional Director again applied the “community-of-interest” standard to the newly-proposed units, and certified the two units as appropriate and directed elections. Shortly thereafter, the employees in each unit voted in favor of the Union.

The employer refused to bargain with the newly-certified units, and the Union filed a refusal to bargain unfair labor practice charge against the employer.  In response to the charge, the employer objected to the certification, arguing that the Regional Director departed from several prior Board decisions rejecting separate bargaining units in the hotel context, as well as the precedent established by the RD in the first unit decision in this case—namely, that the RD’s decision counseled against excluding the front desk employees from the first decision, but not in the second.  The Board rejected the petition without explaining its reasoning or attempting to distinguish the precedent relied on by the employer in a 2-1 vote.

On appeal to the D.C. Circuit, the Court admonished the Board for its lack of analysis, noting the employer presented the Board with precedent that was directly analogous, holding that separate bargaining units in the hotel context were inappropriate.  The Board failed to engage in any application to the facts at hand and distinguish those cases from the present.

Takeaways

This decision reinforces D.C. Circuit precedent—which is important for any practicing labor law attorney, employer, union or employee, as any NLRB decision may be appealed to the D.C. Circuit—that the Board must explain its reasoning when certifying bargaining units.  Fatal to the Board’s decision here was that it failed to reconcile the Regional Director’s initial decision (which found that excluding front desk employees was inappropriate) with the subsequent decision (which concluded that front desk employees need not be included in the unit), and did not even attempt to distinguish the arguably on-point Board precedent from the hotel industry.

When remanding the case, the D.C. Circuit noted that “We should not be understood as requiring the Board to distinguish every case cited to it by a party…To say otherwise would be to hold the Board to a higher standard than we hold ourselves…. We simply reiterate that when faced with contrary precedent directly on point, the Board must distinguish it.”

Lurking in the background of this case is the Board standard for evaluating bargaining units.  Several years ago the Board changed the traditional of community of interest standard, which also relied heavily on precedent in the particular industry, in favor of the so-called “micro unit standard.”  Undoubtedly, the two separate units would be found to be appropriate under this standard.  In recent years, as political winds changed, the Board abandoned the micro unit standard in favor of the more traditional analysis.  This traditional analysis made the employer’s citation to industry precedent not only important, but fundamental to the Court’s determination.

Political winds recently shifted and so may the Board’s standard for evaluating bargaining units.

We will keep you posted!

 

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer of inquiries or requests for information from governmental entities.

Advice concluded the rule concerning employee communications was a lawful workplace civility rule under Boeing, but the government investigations directive violated the Act because it could be applied to investigations by the NLRB or other agency investigations/proceedings.

Policy on “Ethical Communications” is a Lawful Civility Rule under Boeing

Advice reviewed a rule maintained in the employee handbook under the heading, “Ethical Communications”, which primarily served as an anti-discrimination and harassment policy, but also encouraged employees to “[b]e clear and objective” in their communications. Advice evaluated whether the policy could reasonably be interpreted as interfering with protected concerted activity.

Upon inspection, Advice determined that the policy, read as a whole, was lawful and unlikely to be understood by employees as prohibiting protected activity. Although the requirement to “be…objective” could theoretically be read as restricting some forms of protected, subjective speech, Advice concluded that “the entire rule read in context is best understood as the sort of civility rule the Board has found lawful under Boeing”. The provision of the rule requiring employees to “be…objective” appears alongside other requirements that employee communications be “fair and courteous,” “thoughtful and ethical,” and do not “constitute harassment or bullying.” While the rule included some restrictions on the content of employee communication, such as disparaging speech, Advice found it was clear that this provision of the policy restricts disparagement of customers and other employees, which has little to no impact on Section 7 activity.

Under the second prong of the Boeing analysis, Advice considered the employer’s legitimate business justifications for maintaining the proper employee communication policy and determined that the employer’s legitimate interests outweighed any potential impact the rule might have on protected activity. Advice explained that employers have an interest in maintaining civility rules like the kind at issue in this case, including the “employer’s legal responsibility to maintain a workplace free of unlawful harassment, its substantial interest in preventing violence, and its interest in avoiding unnecessary conflict or a toxic work environment that could interfere with productivity and other legitimate business goals.” The purpose of the policy was not to prevent employees from publicly criticizing the terms and conditions of their employment, but rather to ensure employees remained civil in their communications in the workplace, which is lawful.

Employer’s “Government Inquiries/Investigations” Rule Facially Unlawful under Boeing

Advice reviewed another rule in the employee handbook, entitled “Government Inquiries/Investigations”, which stated that “[a]ny inquiry, request for information, or subpoena from a government agency or authority should be forwarded immediately to the Compliance Department, the Safety, Security and Risk Department or Chipotle’s General Counsel or, in the case of tax audits, to the Chief Financial Officer.”

Advice concluded this policy was unlawful because, on its face, it restricts employees from participating or cooperating in investigations conducted by the NLRB and other government agencies. Advice explained that employees have a right under Section 7 of the NLRA to “cooperate in Board investigations or to concertedly participate in investigations by other regulatory or law enforcement agencies.” Employees would reasonably understand the rule as prohibiting them from providing requested evidence or otherwise participating in a government investigation without first communicating with the employer.

Although the employer argued that the rule only applies to government inquires addressed to the employer and not to individual employees, and that it has a legitimate interest in ensuring it is aware of governmental inquires and communications addressed to it, Advice found this explanation insufficient where the text of the rule failed to draw a distinction between government inquiries addressed to the employer and those addressed to individual employees.

Takeaways

The Advice Memorandum solidifies (for now, anyway) the NLRB’s approach to workplace civility rules, as originally expressed in Boeing, where the Board held that civility rules requiring harmonious workplace relations and professional and appropriate conduct are generally lawful and fall within Category 1 under Boeing. Here, Advice indicated that a policy regulating employee communications with customers and other employees in the workplace falls squarely within the realm of lawful civility rules under NLRB jurisprudence. Employers should thus keep in mind that, while certainly not limitless, preventing a toxic work environment is a legitimate business justification for a policy that could potentially interfere with employees’ rights to engage in protected concerted activity.

The second rule evaluated by Advice regarding disclosure of government investigations and inquiries to the employer before responding is a helpful reminder to employers of the importance of careful and thoughtful drafting when it comes to handbook policies. While the employer in the case intended only to ensure that communications from government agencies and regulatory bodies made their way to the employer, the policy did not sufficiently make the limited scope of the policy apparent. Employers should thus ensure that any policies concerning government investigations are narrowly tailored, making clear that employees are free to cooperate with government requests for information and other inquiries without restriction or interference.

This is an appropriate time to note that the standards enunciated in Boeing could change in the coming months as the Executive Branch will change parties on January 20, 2021. The change in administration will ultimately cause a change to the make-up of the NLRB. It was only a few short years ago that all rules at issue in this case likely would have been found to be unlawful by the Board. We will, as always, keep you posted of important developments in this area.

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity.

In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive or tone.  An executive’s tweet threatening employees that if anyone “tries to unionize I swear I’ll send you back to the salt mine” violated the Act because a reasonable employee could view it as expressing an intent to take adverse action against employees who attempted to organize a union.

Background

On June 6, 2019, news organizations covered the story of a walkout by union employees at Vox Media, an online digital media network and publisher.  On the same day as the walkout, an executive officer of the employer and publisher of the Federalist magazine tweeted:  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine”.  The tweet was posted using the executive’s personal Twitter handle.  There was no evidence that employees of the employer had contemplated union organizing.  Indeed, the Administrative Law Judge noted the individual who had filed the unfair labor practice charge in this matter “is not and never has been an employee” of the employer.

On April 22, 2020, an administrative law judge (“ALJ”) found that the tweet violated Section 8(a)(1) of the Act, even though the employer argued that it had no malicious intent and that the alleged coercive communication did not succeed.  The Board affirmed the ALJ’s holding, citing American Freightways Co., 124 NLRB 146, 147 (1959), where the Board concluded that an employer may violate the Act regardless of its “motive or whether the coercion succeeded or failed.”  Rather, “[t]he test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”

The Board upheld the ALJ’s conclusion that a reasonable employee would view the tweet as threatening unspecified reprisals against employees who engaged in union activity.  The ALJ found that the words “FYI” or ‘For Your Information” combined with the usage of @fdrlst was clearly directed at employees working at the Federalist – not the general public.  The ALJ noted that use of the term “salt mine” often referred to work that was tedious and labor-intensive, and reasonably indicated a worsening of working conditions if the employees unionized.

The Board agreed, finding that, even though the statement was publicly posted on Twitter, “the words of the statement itself leave no doubt that it is directed at the Respondent’s employees.” Furthermore, the Board cited precedent holding that even a threat not directed at employees but seen by them would still violate Section 8(a)(1).

The Board rejected  the employer’s defense that the tweet was protected by Section 8(c) as an expression of a personal viewpoint on a newsworthy topic.  Citing Webco Industries, 327 NLRB 172, 173 (1998), the Board stated that Section 8(c) does not protect implicit threats of reprisals.  The Board ordered the employer to direct the executive to delete the statement from his Twitter account.

Takeaways

This case illustrates something many employers find out too late: that under the rules and regulations of the NLRB, anyone can have standing to bring an unfair labor practice charge. Moreover, it costs nothing to file a charge and the charging party need not participate beyond providing information to the agency.  While the parties stipulated that “at least one employee” viewed the Twitter feed of the executive, no employee complained or even participated in the case.  Someone who merely saw the statement on Twitter set in motion the agency apparatus resulting in unfair labor practice liability.

This case does not change the underlying law and reinforces the longstanding principle that the Board’s only inquiry into whether a statement is coercive is to look at the words themselves.  That this tweet may have been a sarcastic attempt at humor, is irrelevant.

This case does demonstrate how flippant comments on social media can cause issues for employers.  In recent years, the Board has paid closer attention to the statements of high-level executives on social media.  As demonstrated here, the test of whether the conduct—a statement by a statutory supervisor—amounts to interference or coercion with respect to employees’ ability to engage in protected, concerted activity is objective, and does not depend on the intent or motive of the employer (or its agents).  Nor does such a finding depend on the subjective feelings of the employees with respect to the statement.  The case reaffirms the need by employers to effectively train and remind statutory supervisors that public social media use, even statements issued from a personal account, can bring liability under the National Labor Relations Act.

NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic

As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections.  Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person.  This necessary paradigm shift flew in the face of the Board’s long-standing general policy to hold manual-ballot, in-person elections.  However, on November 9, 2020, the Board finally provided Regional Directors and key stakeholders, such as employers, employees and unions with important guidance concerning when, and how, to decide whether to hold a representation election by manual- or mail-ballot.

Background

In Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45 (2020), the Employer argued that a manual election was warranted based on the Board’s preference for manual-ballot elections and the relatively-low prevalence of COVID-19 in its Michigan county.  The Employer also agreed to comply with the manual-ballot election protocols issued by the Board’s General Counsel on July 6, 2020 in GC Memo 20-10.  That Memo set out a detailed protocol of how to hold in-person voting during the COVID-19 Pandemic, including detailed elections mechanics, health certifications, an agreement to notify the Region of any indication that individuals present at the voting location contracted COVID-19, and arrangements to ensure social distancing and compliance with CDC guidelines.   Nonetheless, the Region, in Aspirus Keweenaw, ordered a mail-ballot election due to safety concerns and applicable governmental guidance.

The full Board reversed the Regional Director’s decision and articulated a new six-“situation” test to determine whether an election should be held by mail rather than by manual ballot.  Notably, the Board indicated that the presence of “one or more” of these situations “normally” suggests the use of a mail ballot due to the extraordinary circumstances of the COVID-19 pandemic:

  • The Agency office tasked with conducting the election is operating under “mandatory telework” status.
  • Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
  • The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
  • The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
  • There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
  • Other similarly compelling circumstances.

The Board clarified that none of these situations require a mail-ballot election.  Instead, the determination remains at the discretion of the Regional Director, but “a Regional Director who does direct a mail-ballot election under the foregoing situations will not have abused his or her discretion.”  In other words, Regional Directors who follow the Board’s guidance likely will not be reversed on this issue by the Board on review.

In Aspirus Keweena, the Board reversed and remanded the Regional Director’s decision requiring a mail-ballot election for further consideration consistent with the new standard.

Takeaways

The country continues to be challenged by the COVID-19 pandemic, with outbreaks varying by state and locality.  As evident over this past year, the normal operations of the NLRB, including the type and manner of representation elections, has been significantly affected.  Namely, the ongoing pandemic has resulted in far more mail-ballot than manual-ballot elections.

The Board’s decision helpfully articulates clearer guidance for Regional Directors faced with the unenviable task of deciding whether to hold in-person or mail-ballot elections at an employer’s site during the pandemic.  The decision also gives employers and unions some criteria to use to argue over the type of election to be conducted. This decision both lays the groundwork for a possible return to the long-standing tradition of in-person elections (which may be a boon for employers who prefer in-person voting), while also recognizing the gravity of the safety and health crisis that the country is currently experiencing by providing multiple situations in which a manual election almost certainly would not be ordered.

As with all things related to COVID-19 and the NLRB, this situation is fluid and we will continue to follow it.  Stay tuned!

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