Labor Relations Today

Labor Relations Today

NLRB Draws a Line, Unlikes Employees’ Facebook Posts

Posted in NLRB Decisions, Social Media

Cases involving employee Facebook and other social media posts rarely end well for employers (see here, here, and here). However, on October 28, 2014, the National Labor Relations Board gave an employer a rare Facebook victory in Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), finding that the employer lawfully rescinded rehire offers for two employees because their Facebook posts lost the protection of the National Labor Relations Act.

The employer operates a teen center at a high school and provides afterschool activities for students. Before each school year, the employer sends offer letters to those employees whom it wants to return. The employer had sent rehire letters to the two employees at issue, who engaged in a conversation on Facebook just prior to the start of the school year. Upon learning of the Facebook posts, the employer rescinded their rehire offers because the “statements give us great concern about you not following the directions of your managers in accordance with [the employer's] program goals. … We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.”

The General Counsel claimed that the employees’ Facebook posts were protected under the Act, and thus could not be the basis for discipline. However, the Board sided with the employer as it found that the employees’ conduct was “so egregious as to take it outside the protection of the Act, or of such a character as to render the employee[s] unfit for further service.” Specifically, the Board agreed that the employees’ Facebook posts advocated insubordination:

The employees referenced refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering s—, having crazy events at the Beacon all the time. I don’t want to ask permission …”; “Let’s do some cool s—, and let them figure out the money”; “field trips all the time to wherever the f— we want!”), disregarding specific school-district rules (“play music loud”; “teach the kids how to graffiti up the walls …”); undermining leadership (“we’ll take advantage”; “I would hate to be the person takin your old job”); neglecting their duties (“I AINT GOBE  NEVER BE THERE”), and jeopardizing the future of the Beacon (“they start lossn kids i ain’t helpn”; “Let’s f— it up”).

(The full, unedited Facebook posts are set out in the decision).

The General Counsel argued that the Facebook posts, when viewed against the backdrop of the complaints articulated at a meeting earlier that year and one of the employee’s recent demotion, could not reasonably be understood as seriously proposing insubordinate conduct. The Board disagreed:

The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

While this decision is encouraging for employers, employers still have a very high burden for establishing that employee communications about their job on social media are not protected by the National Labor Relations Act. Accordingly, employers should always consult their labor counsel before issuing discipline in response to employee communications on social media.

Union Campaign Heats Up At B’more Jimmy Johns

Posted in NLRA, Quick Hits, Unfair Labor Practices, Unions

The Baltimore City Paper reports that less than two weeks ago, Jimmy Johns employees working in Baltimore, MD formed an informational picket outside of a Jimmy Johns franchise in order to demand higher wages from their employer.  The employees have been attempting to form a labor union since early August of this year.  Since then, Jimmy Johns employees allege that their employer has committed several unfair labor practices in an attempt to thwart their efforts, including firing a coworker for engaging in protected activity.

Trouble started for the employees on August 9 of this year, when Jimmy Johns organizers publicized their list of demands to management officials.  Those demands included paid sick days, higher wages, and a change to the current disciplinary system.   Currently, those demands stand ignored.

As the Baltimore City Paper notes, Jimmy Johns has been awash in negative publicity lately.  Just last week, the sandwich maker was sued by a class of employees over its ”non-competition” agreements.  Furthermore, a Minneapolis franchisee was found to have committed unfair labor practices earlier this year when it unlawfully disciplined some of its employees.


Board Orders Hotel To Pay Union’s Bargaining And Litigation Costs

Posted in NLRA, NLRB, NLRB Decisions, Quick Hits, Remedies, Unfair Labor Practices, Unions

In a decision issued last Friday, the National Labor Relations Board slammed a Hawaii hotelier for repeatedly violating the National Labor Relations Act over the past decade.   Issued by a full five-member Board, the decision hammered HTH Corp. for unlawfully terminating an employee for engaging in protected activity, as well as for eliminating contributions to unionized employees’ retirement plans.

Styled HTH Corp., 361 NLRB No. 65 (2014), the decision explained that the unlawful termination was simply HTH Corp.’s most recent violation of the Act, with the company having committed a litany of unfair labor practices over the past ten years.  In particular, the Board noted that HTH Corp. had repeatedly:

  • Maintained an unlawful anti-solicitation policy;
  • Retaliated against employees for exercising their Section 7 rights; and
  • Bargained in bad faith.

More egregiously, the company had repeatedly failed to comply with previous Board orders.  Accordingly, the Board determined that an unusual remedy was warranted.  Because HTH’s violations of the Act were “severe and pervasive and have lasted for over a decade,” a three-member Board majority ordered the company to cover the litigation expenses of both the International Longshore and Warehouse Union and the General Counsel’s office.  HTH was also ordered to pay the union’s bargaining costs due to the company’s “willful defiance” of the Board and the Act.

While the Board majority considered its unusual remedy to be “compensatory in nature,” both Members Johnson and Miscimarra disagreed.  In dissent, Member Johnson noted that even though HTH engaged in severe and pervasive violations of the Act, he would not have awarded either the General Counsel or the union its litigation costs.

“I would not award litigation costs to either the general counsel or the union. Such an award is beyond the board’s statutory authority.”

This decision should cause employers to sit up and take notice.  This Board is serious about what it says: employers will ignore Board orders and decisions at their peril.  Doing so could not only bring about more unfair labor practice findings, but could also seriously lighten an employer’s cash holdings if the Board orders an employer to pay the other side’s litigation costs.

Capital Bikeshare Employees Look To Unionize

Posted in NLRA, NLRB, Quick Hits, Representation Elections, Unions

The Washington Post reports that Washington D.C.’s Capital Bikeshare Program is in the midst of a union organizing campaign.  Organizers have been speaking to employees and have been soliciting authorization card signatures for the past few weeks.  The organizers’ efforts seem to have paid off, at least for now: last Thursday, a representative of the Transport Workers Union (TWU) delivered 57 authorization cards to the National Labor Relations Board.  Critically, that represents 86 percent of Capital Bikeshare’s employees.

The organizing campaign began back in early 2013, when some employees noticed that they were not being paid their correct wages.  Other issues include safety concerns, lack of tools, and the absence of due process in instances of discipline and discharges.

Employees also became spooked by recent rumors that Alta, the corporation that runs the Bikeshare program, was being bought by an investment firm.  Coupled with the issues discussed above, the job security questions left room for TWU to come in and garner signatures.

No election date has been set yet by the Board.  Based on the high percentage of signed authorization cards though, as well as other successful Bikeshare organization campaigns in other cities, it is likely that the union will succeed here.  We will keep you posted as the drive continues.


Muskegon Family Care Settles ULPs

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

Earlier this week, Muskegon Family Care settled several unfair labor practice charges filed by the American Federation of State County and Municipal Employees (AFSCME) after Muskegon terminated four employees earlier this year.  While the terms of the settlement were not made immediately available, a spokesperson for the union stated that the terminated employees would receive undisclosed sums of money, as well as neutral employment references.

The unfair labor practice charges were filed by the union back in March, after the four employees were allegedly retaliated against and terminated for looking into unionizing. 

While this case has settled, AFSCME officials state that they are still regularly receiving calls from Muskegon employees looking to unionize.  Without going into specifics, the official implicitly encouraged the employees to continue their efforts, noting that unionizing could ‘improve their working conditions.’

The union campaign still appears to be in its infancy since AFSCME has not filed an election petition.  However, we will be watching this effort here closely, so stay tuned.


ALJ Nixes Another Arbitration Agreement

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices

Earlier this week, a National Labor Relations Board Administrative Law Judge held that Ross Stores Inc. violated the National Labor Relations Act by maintaining an unlawful arbitration agreement.  In pertinent part, Judge Pollack ruled that Ross ran afoul of the Act by forcing employees to sign an arbitration agreement that prohibited employees from pursuing either class or collective actions against the retailer.

The decision should come as no surprise to labor watchers, as just last week two different ALJs struck down unlawful arbitration agreements prohibiting collective and class actions.  In this case, Judge Pollack reasoned that Ross’ agreement was unlawful in light of the Board’s controversial D.R. Horton decision from 2012. 

“It is undisputed that the arbitration policy prohibits class actions in both judicial and arbitral forums,” Judge Pollack said. “Respondent required employees to agree to the arbitration policy as a condition of employment. Accordingly, I find that respondent’s maintenance of the arbitration policy violates [the NLRA] as set forth in D.R. Horton.”

While the Board still considers D.R. Horton to be good law, the Fifth Circuit does not.  But the Board chose not to appeal the Fifth Circuit’s decision overruling the Board’s determination that class waivers violate the Act, so the Supreme Court will not have the opportunity to weigh in for now. 

In the meantime, employers would be wise to carefully review their employee handbooks, as well as any dispute resolution agreements between themselves and their employees, to ensure that those policies comply with the National Labor Relations Act.  Based on the fact that we have seen three arbitration agreements struck down in the past week, it can be surmised that an arguably unlawful policy will bring with it the specter of an unfair labor practice charge.

FairPoint Strikers Accused Of Illegal Tactics

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

Earlier this week, FairPoint Communications officials located in northern New England accused its striking workers of not playing fair.  The more than 1,700 striking employees, represented by the Communications Workers of America (CWA) and the International Brotherhood of Electrical Workers (IBEW), have allegedly intimidated contractors and regular FairPoint employees with their threatening behavior.  The strikers have also been accused of attempting to jam the company’s phones in order to disrupt its local call centers.

In a statement, the unions denied the company’s allegations and reiterated that strikers have the right to picket the work sites as long as they are not disrupting work.

“We will continue to work hard to ensure that our labor action is safe and respectful to our neighbors and friends throughout northern New England, but we will not let the company use these spurious and unfounded allegations to take the spotlight off of the company’s unfair practices,” the unions responded in a statement.

The strikers have also accused the company of bargaining in bad faith and have asked the NLRB to order FairPoint back to the bargaining table.  We will be watching for that decision to issue, so stay tuned.


ALJs Signal That D.R. Horton Is Alive And Well

Posted in NLRA, NLRB, NLRB Administration, Quick Hits, Uncategorized, Unfair Labor Practices, Unions

At the end of last week, two separate National Labor Relations Board Administrative Law Judges determined that two separate employer-promulgated arbitration agreements were unlawful.  The reader may recall the Board’s now-infamous D.R. Horton ruling, which effectively held that an employer violates the National Labor Relations Act by forcing employees to sign an arbitration agreement that would prevent that employee from bringing either a class or collective action.  In these two cases, the ALJs found that Bristol Farms and AWG Ambassador LLC ran afoul of that decision.

In the Bristol Farms decision, Judge Thompson reasoned that Bristol violated the Act by maintaining an arbitration policy that “employees reasonably would believe bars or restricts their right to file charges” with the NLRB.  While Bristol argued that D.R. Horton‘s precedent should not apply becuase the agreement did not contain an express class waiver, Judge Thompson still nixed the offending policy because hte company applied it in such a way as to restrict employees from bringing class complaints. 

AWG’s arbitration agreement, by contrast, explicitly violated the D.R. Horton ruling because it contained an express class waiver.  And like several employers before them, AWG tried to avoid an unfair labor practice determination by arguing that D.R. Horton was wrongly decided.  The argument was unavailing.

“[AWG] argues that D.R. Horton was wrongly decided and has been widely rejected. Essentially, the respondent argues it should be overruled,” Judge Laws said in the AWG ruling. “Any arguments regarding the legal integrity of board precedent, however, are properly addressed to the board.”   

We will be following both of these decisions closely and will keep you posted if either case goes before the full Board.  Stay tuned. 


Basketball Players Union Brings In New GC

Posted in Negotiations, Quick Hits, Unions

The New York Times is reporting that the NBA Players Association has hired a new General Counsel.  As the reader may recall, the NBAPA has had a big year already.  The union fired its last chief after an investigation revealed certain improprieties.  Now sporting a new president, the union has hired Gary Kohlman as its top lawyer.

Kohlman is well-known across the labor sphere, having represented such entities as the United Steelworkers and the Service Employees International Union as a trial lawyer in Washington, D.C.  More recently, Kohlman argued on behalf of Northwestern’s football players during their union election hearing.

Kohlman will begin his new job at the beginning of November.  While the players’ current collective bargaining agreement does not expire until 2017, it can be expected that Kohlman will still hit the ground running.  With the NBA having recently inked a massive television deal, it is likely that he and his team will begin crunching how the players impact those numbers in preparation for the upcoming CBA negotiations.

FairPoint Workers Hit The Pickets

Posted in Negotiations, Quick Hits, Unions

Union members working for FairPoint Communications across New England hit the pickets this morning after the company refused to come back to the bargaining table.  The employees, represented in negotiations by the International Brotherhood of Electrical Workers (IBEW) and the Communication Workers of America (CWA), offered “significant concessions” in their most recent offer, but to no avail.

“The company is not willing to negotiate on anything, so we felt that we’ve exhausted all of our options and this company has no interest in reaching an agreement. They’ve really backed us into a corner. We have no choice but to strike,” said Jenn Nappi, assistant business manager with CWA Local 2327.

Negotiations between the parties began in April and ended abruptly in August when the company declared an impasse and subsequently imposed its last, best, and final offer.  We will keep you posted as this dispute continues to unfold.

More on this story can be found here: