Labor Relations Today

Labor Relations Today

Fired Google Manifesto Author Files Unfair Labor Practice Charge: Did He Engage In Protected Activity?

Posted in NLRB, Presidential Appointments, Unfair Labor Practices

A Google engineer was fired last week after circulating a 3,000 word memorandum, among other things, criticizing the tech giant’s approach to diversity issues and questioning the root causes of the industry’s gender gaps.  He has filed an unfair labor practice charge with the National Labor Relations Board alleging that the company violated Section 8(a)(1) of the National Labor Relations Act:

…by threatening employees because of their protected concerted activities and by making threats of unspecified reprisals against employees because of their protected concerted activities.

Presumably, his termination for drafting and circulating the memo among his co-workers will be central to his proffer of evidence.

One article on the charge filed by James Damore, explained the authors’ skepticism thus:

Damore could argue to the labor board that by firing him for his memo, Google violated the federal law that protects collective action by employees, said Wilma Liebman, who chaired the National Labor Relations Board under President Barack Obama.

To prevail, he’d have to show that his letter was related to workplace conditions, that it was designed to instigate collective action among his co-workers, and that it wasn’t so defamatory or offensive as to forfeit legal protection. “I think it’s an open question,” Liebman said. “It’s not a slam dunk either way.”

Yet it is the extreme expansion of NLRA Section 7’s protections by former Chair Liebman and her philosophical disciples on President Obama’s NLRB that have paved the way for this case.  As I mentioned in a conversation with Bloomberg BNA, while much of the manifesto may well be characterized as political, philosophical and/or scientific debate, there are clearly portions where the author sought to make common cause with his co-workers regarding working conditions.  For example, in an effort to address the various pay and promotion issues identified by the memo, the “Suggestions” section recommends, among other things, that the employer:

  • “[s]top restricting programs and classes to certain genders or races”;
  • discontinue “microaggression training”;
  • make “Unconscious Bias” training mandatory for promotion committee members; and
  • implement other adjustments to surveys used in pursuit of diversity within certain “org levels.”

It is hard to argue that these specific recommendations do not pertain at all to the working conditions of the memo author and his co-workers at the company. It may be slightly more complicated to question whether his circulation of this memo to numerous co-workers, including, by some reports, via internal employee bulletin board postings, was “designed to instigate collective action.”

As for whether the memorandum’s contents were so “defamatory or offensive” so as to forfeit the protection of the NLRA, that question seems ironic the same week that the Circuit Court of Appeals for the Eighth Circuit issued its decision in Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir., Aug. 8, 2017).  In that case, the Court upheld an earlier decision of the Board protecting the “right” of a striker to yell vile, racist epithets at African-American workers from the picket line.

It may be interesting to follow the investigation of this charge as it winds through the Regional Office and makes its way to the General Counsel’s office.  The current General Counsel, Richard Griffin, has largely been a philosophical ally of former Chair Liebman.  But his term expires in November of this year.  His replacement is yet to be nominated by President Trump, although observers expect that nomination soon after Congress returns from the Summer Recess.  Timing and personnel issues may well play into the resolution of this intriguing case.

More coverage and analysis:

National Labor Relations Board Now Has Four Of Five Seats Filled

Posted in NLRB Administration, Obama Board Reversal, Presidential Appointments

Marvin Kaplan was sworn in today to his seat on the National Labor Relations Board.  Mr. Kaplan was confirmed by the Senate on August 2, 2017, and will serve a term which lasts until August of 2020.

According to the Board’s press release:

Board Member Kaplan has selected James R. Murphy to serve as his Acting Chief Counsel.   Mr. Murphy most recently served as Chief Counsel to Member Harry I. Johnson, III, and before that to Member Brian Hayes and Member Peter Schaumber.  He began his career at the Board as a student law clerk in 1974, and has been was a staff counsel or supervisor on the staffs of dozens of Board members.  Mr. Murphy earned his B.A. degree from Princeton University in 1972 and a J.D. from the American University Washington College of Law in 1976.

Board Chairman Philip A. Miscimarra welcomed Kaplan to the Board, noting “It is my pleasure to welcome Marvin E. Kaplan to the National Labor Relations Board. He has devoted his career to public service. My colleagues and I look forward to working with Member Kaplan.

Chairman Miscimarra officially announced this week that he will not seek a second term when his current term expires in December 2017.  The continuing pendency of William Emanuel’s nomination to the Board’s final seat, and the Chair’s eventual vacancy, provide some uncertainty for the prospects of a stable Republican majority on the Board throughout the near future.

En Banc Eighth Circuit Reverses National Labor Relations Board’s “Sick Day” Jimmy John’s Decision

Posted in Federal Court Litigation, NLRB Decisions, Unfair Labor Practices

On July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit, sitting en banc, rejected the reasoning of an ALJ, the NLRB, and a panel of the Eighth Circuit regarding whether Jimmy John’s employees could hang posters at work challenging the company’s sick-leave policy.

The sandwich-shop franchisor’s sick-leave policy prohibited employees from merely “calling in sick.”  Instead, the company required employees absent from a shift to find a replacement worker.  International Workers of the World (“IWW”), a trade union attempting to unionize the workers, designed and hung posters in the stores implying that as a result of this policy the sandwiches posed a health risk to customers.  Managers quickly removed the posters, and IWW supporters plastered Minneapolis-St. Paul with replicas of the posters.

As a result, the company fired six employees who coordinated the attack and issued written warnings to three who assisted.

The Board’s ALJ and a divided of panel of the Board concluded that the company violated Sections 8(a)(1) and 8(a)(3) of the NLRA because (1) the posters were part of and related to an ongoing labor dispute, and (2) they were not “so disloyal, reckless, or maliciously untrue as to lose the Act’s protections.”  See MikLin Enterprises, Inc., 361 N.L.R.B. No. 27 (Aug. 21, 2014) (citing NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953)).  The Jefferson Standard principle generally explains that communications lose Section 7 protection when they constitute a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies.”

The full Eighth Circuit disagreed with the Board.  See MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. July 3, 2017).  First, the Court held that Jefferson Standard applies to employees’ disparaging communications even when they expressly reference ongoing labor disputes.  In this regard, the Court disagreed with the contrary conclusion of the panel majority in DirecTV, Inc. v. NLRB, 837 F.3d 25, 35–36 (D.C. Cir. 2016).

Second, the Court concluded that the Board fundamentally misconstrued Jefferson Standard.  For example, the Board failed to recognize that the Jefferson Standard principle includes not only the subjective consideration of the employee’s intent to harm the company through a “sharp, public, disparaging attack,” but also an objective component that focuses on the means used to achieve the employee’s purpose.  Moreover, the Board disregarded the manner in which and the extent to which the communications harmed the company, focusing entirely instead on whether the employees were motivated by a sincere desire to improve their terms and conditions of employment.

Ultimately, the Court explained that an employee’s disloyal statements can lose Section 7 protection without a showing of actual malice.  The Eighth Circuit noted that the poster campaign was designed to inflict harm on the company’s reputation and reduce its income.  To do so, the employees made materially false and misleading statements, and the harm caused by the employees’ actions far outlasted the labor dispute at issue.

The Court upheld other aspects of the Board’s Order.  For example, the Court held that an assistant manager’s Facebook posts which encouraged employees to harass an IWW supporter for his Section-7-protected activities violated the NLRA.  Likewise, the Court affirmed the Board’s decision that the company was not permitted to remove from back-room bulletin boards the IWW’s postings about the recent IWW election and subsequent unfair labor practice charges.  The Court upheld the decision that these practices violated Section 8(a)(1).

This opinion gives some solace to employers facing campaign-related activity designed to harm the business.  Notably, however, the circuits are split on the extent to which Jefferson Standard may apply to campaign-related activity.  Accordingly, as we urged when we reported on the Board decision in 2014, employers should tread carefully and consult counsel before issuing discipline in response to employee communications.

Senate Health, Education, Labor and Pensions Committee Schedules Confirmation Hearing For National Labor Relations Board Nominees

Posted in NLRB, NLRB Administration, Presidential Appointments, Senate

The Senate Health, Education, Labor and Pensions (HELP) Committee has announced that it will hold a committee hearing on Thursday, July 13, 2017, at 9:30 AM, to consider the nominations of Marvin Kaplan and William Emanuel to become Members of the National Labor Relations Board. Patrick Pizzella, nominee for Deputy Secretary of Labor, will be the third witness.

The proceedings may be watched at the HELP Committee’s webpage for the hearing here.

If approved by the Committee, the Senate will have a brief period of time to confirm the nominations before the August recess, although Majority Leader Sen. Mitch McConnell (R-KY) today announced that the summer recess may be postponed by as much as two weeks, allowing for a little more opportunity.

House Committee On Education And The Workforce Approves Three Bills To Amend National Labor Relations Act

Posted in Expedited Elections, House of Representatives, Legislation, Micro Units, NLRA, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Representation Elections, Senate

Following a June 14, 2017 subcommittee hearing, and a June 27, 2017 mark-up, the House Committee on Education and the Workforce has approved the Tribal Labor Sovereignty Act of 2017 (H.R. 986), the Workforce Democracy and Fairness Act (H.R. 2776), and the Employee Privacy Protection Act (H.R. 2775).  All three bills were approved by a party-line vote of 22-16.

The Tribal Labor Sovereignty Act, introduced by Rep. Todd Rokita (R-IN) would amend the National Labor Relations Act to expressly clarify the exclusion of tribal employers from the Act’s definition of “employer.”  Specifically, the bill would add “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands” to the definition’s list of exclusions set forth in Section 2(2) of the Act as follows:

…the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof…

Rep. Rokita said of the bill:

We are leading the way to protect the sovereignty of Native American tribal governments. This bill fights for the inherent right to self-government, free from Washington’s interference, just like local governments and states.

The Workforce Democracy and Fairness Act, introduced by Rep. Tim Walberg (R-MI), would amend the Act to require that in all representation (RC) elections, within 14 days of the filing of a petition, an “appropriate hearing” would be held. That hearing would be:

non-adversarial with the hearing officer charged, in collaboration with the parties, with the responsibility of identifying any relevant and material pre-election issues and thereafter making a full record thereon.

This change to the statute would restore the decades-old procedures, pre-dating the April 2015 “Quickie Election” rules, whereby the Board would seek to resolve significant legal issues likely to impact the election prior to the conduct of the election.  This bill would also require a period of at least 35 days between a petition and the conduct of an election — up from the current median, 23 days, and the prospect under the current rules of an election as soon as 13 days after the filing of a petition.

Moreover, the second half of the bill would expressly incorporate the Board’s traditional “community of interest” factors for determining the appropriate unit in a representation proceeding. This inclusion would restore the decades-old standards cast aside by Board in its 2011 Specialty Healthcare decision to facilitate micro-unit organizing.

The Employee Privacy Protection Act, introduced by Rep. Joe Wilson (R-SC), would for the first time memorialize the employer’s obligation to turn over a list of eligible voters and contact information in the statute itself.  But it would also restore a seven day time frame for compilation of the information and the Board as the recipient of the information. In addition, it would require that only one piece of contact information be provided for each employee, to be chosen by the employee him or herself.

The three bills will proceed now for a vote by the broader House of Representatives.  There are similar bills pending in the Senate.

President Announces Final National Labor Relations Board Nominee

Posted in NLRB, NLRB Administration, Obama Board Reversal, Presidential Appointments

President Trump has announced his intention to nominate William J. Emanuel to the final remaining vacant seat at the National Labor Relations Board.  The announcement, posted on the White House website amidst seventeen assorted nominations and appointments, reads simply:

William J. Emanuel, of California, to be a Member of the National Labor Relations Board for the term of five years expiring August 27, 2021, vice Kent Yoshiho Hirozawa, term expired.

According to the Wall Street Journal:

Mr. Emanuel is a Los Angeles attorney at the Littler Mendelson law firm. Mr. Emanuel has a background similar to the chairman’s: Both spent much of their careers at major law firms representing large companies in employment-law cases.

If confirmed, along with fellow recent nominee, Marvin Kaplan, Mr. Emanuel would form the first Republican-appointed majority on the Board in years. The term of the third Republican on the Board, Chairman Phil Miscimarra, expires in December 2017.

President Announces Intent To Fill National Labor Relations Board Vacancy

Posted in NLRB Administration, Presidential Appointments, Senate, White House

President Trump yesterday announced his intention to nominate Marvin Kaplan to one of the two vacant seats at the National Labor Relations Board.  The announcement, posted on the White House website, reads:

Marvin Kaplan of Kansas to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2020. Mr. Kaplan is currently the Chief Counsel of the Occupational Safety and Health Review Commission. Prior to joining the Commission, he spent almost seven years serving as Counsel, first to the U.S. House Oversight and Government Reform Committee and then to the U.S. House Education and the Workforce Committee. In those positions, Mr. Marvin was responsible for labor and employment oversight and policy, including the National Labor Relations Act, Labor-Management Reporting and Disclosure Act, and Labor Management Relations Act. In 2007, he began his public service as a Special Assistant in the U.S. Department of Labor’s Office of Labor-Management and Standards. Mr. Marvin received a B.S. from Cornell University and a J.D. from Washington University in St. Louis.

There are currently two vacancies on the Board, leaving a bare quorum and 2-1 majority of Democrat appointees. The term of the sole Republican on the Board, Chairman Phil Miscimarra, expires in December 2017.

Senate Introduces Own Version Of Bill To Restore National Labor Relations Board Election Procedures

Posted in Expedited Elections, House of Representatives, Legislation, Micro Units, NLRA, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Senate

On Wednesday, June 14, 2017, Senator Lamar Alexander (R-TN) announced introduction of The Workforce Democracy and Fairness Act (S. 1350):

A bill to amend the National Labor Relations Act with respect to the timing of elections and pre-election hearings and the identification of pre-election issues, and to require that lists of employee eligible to vote in organizing elections be provided to the National Labor Relations Board.

While the text of the bill itself is not yet posted online, Sen. Alexander issued a press release indicating the bill would:

  • Guarantee workers have time to gather all the facts to make a fully informed decision in a union election. No union election will be held in less than 35 days.
  • Ensure employers are able to participate in a fair union election process. The bill provides employers at least 14 days to prepare their case to present before a NLRB election officer and protects their right to raise additional concerns throughout the pre-election hearing.
  • Reassert the board’s responsibility to address critical issues before a union is allowed to represent workers. The board must determine the appropriate group of employees to include in the union before the union is certified, as well as address any questions of voter eligibility.
  • Empower workers to control the disclosure of their personal information. Employers would have at least seven days to provide a list of employee names and one additional piece of contact information chosen by each individual employee.

As such, it would seem that this bill may be a combination of a House bill by the same name (H.R. 2776), and another, the Employee Privacy Protection Act (H.R. 2775).  The House Health, Education, Labor & Pensions Subcommittee held a hearing on these two bills on the same day last week, with McGuireWoods partner and LRT editor Seth Borden appearing as a witness:

Republican Lawmakers Introduce Three House Bills To Roll Back National Labor Relations Board Quickie Election Rules

Posted in House of Representatives, Legislation, NLRB Rule-Making, Obama Board Reversal, Representation Elections

A trio of bills has been introduced in the House of Representatives to amend the National Labor Relations Act in an effort to roll back some of the more aggressive changes to the union representation election process implemented by the Obama Board.  The Workforce Democracy and Fairness Act (H.R. 2776), Employee Privacy Protection Act (H.R. 2775), and Employee Rights Act (H.R. 2723), have all been introduced and referred to the House Committee on Education and the Workforce, which will hold a legislative hearing on the bills next Wednesday, June 14, 2017.

The Workforce Democracy and Fairness Act, introduced by Rep. Tim Walberg (R-MI), is described as a bill to “amend the National Labor Relations Board with respect to the timing of elections and pre-election hearings and the identification of pre-election issues.” The text of the bill would amend the Act to require that in all representation (RC) elections, within 14 days of the filing of a petition, an “appropriate hearing” would be held. That hearing would be:

non-adversarial with the hearing officer charged, in collaboration with the parties, with the responsibility of identifying any relevant and material pre-election issues and thereafter making a full record thereon.

This change to the statute would restore the decades-old procedures, pre-dating the April 2015 “Quickie Election” rules, whereby the Board would seek to resolve significant legal issues likely to impact the election prior to the conduct of the election.  This bill would also require a period of at least 35 days between a petition and the conduct of an election — up from the current median, 23 days, and the prospect under the current rules of an election as soon as 13 days after the filing of a petition.

Moreover, the second half of the bill would expressly incorporate the Board’s traditional “community of interest” factors for determining the appropriate unit in a representation proceeding. This inclusion would restore the decades-old standards cast aside by Board in its 2011 Specialty Healthcare decision to facilitate micro-unit organizing.

The Employee Privacy Protection Act, introduced by Rep. Joe Wilson (R-SC), seeks to “amend the National Labor Relations Act to require that lists of employees eligible to vote in organizing elections be provided to the National Labor Relations Board,” among other protections.  Prior to 2015, the Board’s longstanding Excelsior Underwear doctrine required an employer to provide to the Board, within 7 days of the Direction of Election, a list of all employees eligible to vote, including a home address for each.  The Board’s April 2015 “Quickie” rules modified this, so that the employer is required to provide the list within two days, and directly to the petitioning union.  Moreover, the alphabetized list must include

the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters[.]

This bill would for the first time memorialize the obligation in the statute itself, but would restore the seven day time frame and the Board as recipient of the information. In addition, it would require that only one piece of contact information be provided for each employee, to be chosen by the employee him or herself.

Finally, the Employee Rights Act, introduced by Rep. Phil Roe (R-TN), purports to “provide protections for workers with respect to their right to select or refrain from selecting representation by a labor organization.”  The text of the bill would amend the National Labor Relations Act, among other things:

  • to allow recognition only via secret ballot election conducted by the Board;
  • to require selection by a majority of eligible unit employees — not just those voting;
  • to require elections be held in certified and recognized units which have experienced turnover or expansion in excess of 50 percent;
  • to require inclusion only of names and home addresses on voter eligibility lists, and to provide for an employee opt-out mechanism;
  • to restore entitlement to a pre-election hearing to resolve material factual issues;
  • to provide tougher financial penalties for union’s committing unfair labor practices; and
  • to require opt-in by employees who wish to have union dues used for non-representational activities.

These bills were previously introduced in the 114th Congress, but went no further after referral to committee.  The Health, Education, Labor & Pension Subcommittee of the Education and Workforce Committee will hold its legislative hearing on these bills next Wednesday morning, June 14, 2017, at 10:15 a.m., in Room 2175, Rayburn House Office Building.

 

Second Circuit Upholds NLRB Order Finding Grocer’s No Recording Policy Unlawful

Posted in Federal Court Litigation, NLRB Decisions, Unfair Labor Practices, Workplace Rules

On June 1, the Second Circuit issued a summary order in Whole Foods Market Group, Inc. v. NLRBaffirming the National Labor Relations Board’s order in Whole Foods Market, Inc., 363 NLRB No. 87 (2015), where the Board found that the employer’s rules prohibiting recording of company meetings or conversations in the workplace violated Section 8(a)(1) of the National Labor Relations Act.

In Whole Foods, the employer had two separate policies prohibiting recording. One provided:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, [employer] has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of [employer] policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President, or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

The other provided:

It is a violation of [employer] policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.  This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

Overruling the administrative law judge, the Board, in a 2-1 decision, reasoned that Section 7 protects photography and audio or video recording if employees are acting in concert for their mutual aid and protection and no overriding employer interest exists:

Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

In affirming and enforcing the Board’s order, the Second Circuit noted:

The Board’s finding that recording, in certain instances, can be a protected Section 7 activity was reasonable….So too was its finding that, because Whole Foods’ no-recording policies prohibited all recording without management approval, ’employees would reasonably construe the language to prohibit’ recording protected by Section 7.

Like the Board, the Second Circuit found that the employer’s policies prohibited all recordings without management approval.  The court also dismissed the employer’s argument that the statue purpose of the rules–to promote employee communication in the workplace–negated any chilling effect that the rules might have on employees’ exercise of Section 7 rights.

The Court did note, however, that not every no-recording policy that places some limits on recording audio and video in the work place violates the Act. It stated that the employer’s interests in maintaining such policies “can be accommodated simply by their narrowing the policies’ scope.”