Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

We've received a lot of requests to discuss the NLRB's issuance of a Complaint in the American Medical Response case.   Gathered here are a number of the media reports in which we've been quoted following the October 27, 2010 issuance of Complaint.

In "Chilling Worker Speech on Facebook," in Human Resource Executive magazine, writer Tom Starner gave LaborRelationsToday some great recognition, and spoke to yours truly along with consultant Nate White and fellow attorney Michael McAuliffe Miller:

Both Miller and Borden recommend employers review their Internet and social-media policies to determine whether they are susceptible to an allegation that such policies could reasonably tend to chill employees in the exercise of their rights to discuss work-related issues such as unionization, wages and work conditions.

Labor lawyers Eric Meyer, Irving Geselwitz, Philip Gordon and I were quoted in a Crain's Detroit Business piece, "Facebook Suit Highlights Policies on Social Media." 

And finally, Inc. magazine asks "Is Your Social Networking Policy Illegal?"  My thoughts expressed there will be no surprise to regular LRT readers:

"There was a case based on a similar policy that came up about two years ago and the NLRB general counsel declined to issue a complaint," says Seth Borden, a partner in the Labor and Employment group at McKenna Long & Aldridge LLP. Now, he says, the Board has a new general counsel. "The Board has signalled a willingness to take a broader view of employees' rights."

Companies should be concerned about this new direction, he says. "This is the first prominent instance of social media being viewed through the prism of traditional labor law," he says. "It's the tip of the iceberg."

Our previous LRT posts on this case are here and here, and on September 28, 2010, the National Law Journal ran "Labor Disputes Arising out of Social Media," which discussed the Board's agenda on these issues.

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Last week, the National Labor Relations Board posted a Notice and Invitation to File Briefs in Case 30-CA-17185, Roundy’s Inc. and Milwaukee Building and Trades Council, AFL-CIO.

On November 12, 2010, the Board issued a Supplemental Decision and Order finding that the Employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting Council representatives from handbilling in front of 23 of its 26 stores. In so holding, the Board determined that the employer had only a non-exclusive property right to the areas where the union representatives were handbilling.

The Board severed the allegations concerning two additional store locations where the employer did possess an exclusive property right. In connection with these two locations, the General Counsel has alleged that the employer violated Section 8(a)(1) because it prohibited union access at those locations while allowing other individuals and organizations to use its premises for non-business-related activities. Thus, under the holding in Sandusky Mall Co., 329 NLRB 618, 623 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001), the General Counsel argues that this discriminatory denial of access violates the Act.

The Board has invited the parties and interested amici to address the continuing viability of the Sandusky Mall standard, or preferable alternatives thereto. This in itself is noteworthy as increased union access to private employer property has been one of the more prominent developments sought by pro-labor elements following the apparent demise of the Employee Free Choice Act. It is obviously an area where a sympathetic Board majority can effectuate change in the absence of legislative action.

But the third question posed by the Board is also intriguing:

3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?

Most people associate the Register Guard case with the permissible scope of an employer’s e-mail and internet usage policy as it pertains to union activity. As we have noted previously, repeatedly and recently, Chairman Liebman and the current Board are likely to overturn that portion of the Register Guard holding at their earliest opportunity. But Register Guard also announced what many saw at the time as a departure from the Board’s standards in analyzing discriminatory application of any workplace policy. The Board announced:

[A]n employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.[] For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Court of Appeals for the D.C. Circuit, however, refused to enforce that portion of the Board’s Order. The Board’s solicitation of positions on this reasoning, however, indicates a clear desire to restate Board law on this point. So, the ultimate holding in the Roundy’s case may have application to a far broader range of allegations of discriminatory conduct by employers against union activity.

Briefs not exceeding 25 pages in length may be filed with the Board in Washington, D.C. on or before December 13, 2010.

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In a 4-3 decision handed down earlier today, the New York State Court of Appeals reversed the order of the New York Supreme Court directing a number of charter schools to disclose the full names of teachers in their employ.  In the Matter of New York State United Teachers vs. Brighter Choice Charter School et al.held that an exception to New York's Freedom of Information Law (FOIL) applied, protecting the information from disclosure.

The New York State United Teachers (NYSUT) made a FOIL request for the names, job titles, salaries and home addresses of all teachers employed by the schools. The charter schools withheld the names of the individuals asserting that disclosure would be an unwarranted invasion of privacy. After the union dropped its request for the home addresses, the trial court ordered production of the names and the Appellate Division affirmed.

In reversing, the Court of Appeals noted the application of an exception to FOIL requirements under Public Officers Law Section 89. Under that provision, an entity may deny access to records, disclosure of which would be an “unwarranted invasion of privacy,” including the “release of names and addresses if such lists would be used for commercial or fund-raising purposes.” During argument, NYSUT conceded that its intent in requesting the information was to organize the teachers and expand its membership. The majority held that the exception applied under these facts.

Interestingly, since the commencement of suit in this case, Section 89 of the Public Officers Law has been amended to replace “commercial” with the word “solicitation.” It would seem that amendment would only strengthen the Court’s reasoning in future cases such as this one.

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Back in August, the Board granted review in Lamon Gasket Co., a case that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract.

Dana was part of a series of rulings issued in the closing weeks of then Chairman Battista's term.  Many of these decisions split as 3-2 votes, and modified existing Board law.  Each contained a strong dissent by current Chairman Liebman.  Dana and the others provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairman Liebman testified at one such hearing, and has reiterated her views consistently many times since.   Back in April 2010, after President Obama announced his nominees for the Board, we suggested that Dana would be among the first decisions of the prior Board revisited.

And so it has been.  Some fourteen amicus briefs have been filed, following Board invitation, by parties including the AFL-CIO, the U.S. Chamber of Commerce, Senator Orrin Hatch (R-UT), the National Association of Manufacturers (NAM), the SEIU, and Congressmen John Kline (R-MN) and Tom Price (R-GA).  The arguments for and against expressed in these briefs shape up essentially as one might expect from a referendum on the Employee Free Choice Act's card-check provisions.  Those in favor of preserving the Dana holding argue that it is the only way to ensure that employees have a free and fair opportunity to vote for or against union representation in a secret ballot election.  Those who would have Dana overturned, argue that the Board has long recognized the principle of voluntary recognition by other means and that the "open period" for decertification announced by Dana only creates delay in the bargaining process, serving to frustrate the will of the majority of employees.

Then-Member Liebman's dissent in Dana provides a clear indication of where this Board is likely to go in Lamon Gasket:

The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

What will be more interesting and important to watch is the political fall-out of the Board's reinforcement of voluntary recognition, and what impact that will have on the labor law debate over the role of the secret ballot.  Stay tuned...

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There has been significant reporting of Region 34's issuance of Complaint in the American Medical Response of Connecticut, Inc. case since our post last week.  We thought it might be helpful to compile some of the information and resources here.  I previously posted a copy of the Complaint in this case, and my September article in the National Law Journal, "Labor disputes arising out of social media," in this post.

Astute employment lawyer, social media observer and blogger Daniel Schwartz found and Tweeted this excellent piece on the case from CNET: "Yes, insults on Facebook can still get you fired."

Last night, NLRB Acting General Counsel Lafe Solomon took to the airwaves at NPR, and on Fox-5 News in D.C. to discuss the case:

Finally, just moments ago, National Journal ran this article, "Facebook Urges User Responsibility," noting the social media giant's own thoughts on the case, including:

"Just as in your offline life, there are some people who you want to be more open with than others, which is why Facebook gives you complete control over how you share information," Facebook spokesman Andrew Noyes said Tuesday evening. "People who use Facebook should ensure their sharing settings are consistent with the way they conduct themselves in the real world."

An administrative law judge is scheduled to hear the case on January 25, 2010.  Check back for updates, as this is certain to continue to garner widespread attention.

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On Tuesday, Republicans gained a majority in the House, picking up at least 60 seats with several more races remaining too close to call. Republicans also picked up 6 seats in the Senate but fell short of gaining the majority. MLA’s client advisory on the election results is available here. What impact might the significant Republican gains in the Congress have on developments in labor law?

The widely held consensus suggests that the most ambitious proposed piece of labor legislation – the Employee Free Choice Act – is “dead.”   The Las Vegas Journal Review was quick to celebrate this notion in an op-ed “Card Check: R.I.P.”  Of course, there had been no chance that the bill was going to pass in its original incarnation as early as March of last year.  The bill, most recently introduced as H.R. 1409, S. 560, would would amend the National Labor Relations Act to make it easier for unions to organize employees. The bill would also require interest arbitration of first contracts after 120 days and would strengthen penalties for certain unfair labor practices. 

The card-check provisions, however, faced vocal opposition from Republican and moderate Democrat Senators alike – failing to obtain enough votes for cloture even when the Democratic caucus controlled 60 votes in the Senate.   It is unlikely that there will be enough votes to pass the bill again in the House (as was done in 2008) – especially since, as of this time, at least forty-five co-sponsors of H.R.1409 will no longer be serving in the 112th Congress.

There have also been measures introduced to guarantee the availability of the secret ballot in union representation elections. Tuesday, four states passed initiatives to that effect.  These measures will face stiff Court challenges on the grounds of federal preemption of labor law.  But last year, federal legislation was also introduced as a bar to EFCA’s card-check provisions. The Secret Ballot Protection Act (H.R. 1176, S. 478) would make it unlawful for an employer

to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9 [of the NLRA].

The bill was introduced in the 111th Congress by Rep. John Kline (R-MN) -- the ranking member of the House Committee on Education and Labor.  Consistent with our earlier speculation, this week Rep. Kline expressed his interest in chairing that Committee in the Republican-controlled House. It is unlikely that his chairmanship and the Republican House majority alone will be sufficient to see legislation like this pass, particularly in light of the Democratic Senate and Presidential veto, but it may be enough to take the issue of card check recognition off the table either way during any legislative discussions.

Since this split government will make major legislative initiatives difficult, it is entirely likely that we will continue to see changes advanced by administrative and executive action.  Early in this administration, the White House showed a willingness to advance elements of its labor agenda via the issuance of executive orders. Moreover, the new National Labor Relations Board, with a weighted 3-to-1 Democrat tilt, has already been more aggressive – urging the increased use of preliminary injunctive relief, significantly expanding traditional Board remedies and granting review in cases expected to invite reversals of Board precedent. We may reasonably expect these trends – as well as an increase in administrative rule-making power – to continue. During the next few weeks, we will explore these issues here in further detail.

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In a September 28, 2010 article in the National Law Journal entitled “Labor disputes arising out of social media,” I suggested that Chairman Liebman’s NLRB was likely to revisit the standards for determining the proper scope of an employer’s social media policy.  On October 27, 2010, Region 34 issued Complaint in a case which may well provide the Board with that opportunity.

In American Medical Response of Connecticut, Inc., Case No. 34-CA-12576, the Acting General Counsel alleges that the employer has violated the Act by, among other things, maintaining overly broad rules regarding blogging and internet posting and firing an employee for disparaging a supervisor on Facebook.   According to the Complaint, the employer maintains a “Blogging and Internet Posting Policy” which includes the passage:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.

The Complaint alleges that the employer denied an employee requested union representation in connection with an investigation.  Later that day, the employee posted comments on her Facebook page critical of a specific supervisor involved in the investigation. She was subsequently terminated. The Complaint alleges that the maintenance of the work-rule alone violated Section 8(a)(1) of the Act, and the employee’s termination violated Sections 8(a)(1) and (3).

In a December 2009 Advice Memorandum, the Board’s Division of Advice recommended dismissal of a charge against Sears Holding, Inc., alleging that similar policy language violated the Act. Relying on the Board’s holding in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), the Division of Advice reasoned:

While the ban on “[d]isparagement of company’s…executive leadership, employees, [or] strategy….” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct. The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7.

The composition of the Board has changed considerably since the 2004 Lutheran Heritage Village decision – and indeed since the 2009 Sears Holding Advice Memorandum. Current Chairman Wilma Liebman strongly dissented from the Lutheran Heritage Village decision. Her dissent suggests she likely would have applied a broader standard in the Sears Holdings case had it reached the Board – and likely will if this case does.

One might view the Complaint in this case as a more straight-forward, generic 8(a)(1) charge alleging the maintenance of an allegedly overbroad work-rule. But when viewed in the context of the Board’s recent J.Picini Flooring decision, and Chairman Liebman’s prior pronouncements that “[n]ational labor policy must be responsive to the enormous technological changes that are taking place in our society,” it is perhaps more sensible to view this as another step in an developing trend.

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Amid the various Election 2010 returns, NAM's Shopfloor.org reports on the passage of ballot initiatives in four states to require secret ballots in union representation elections:

In a multistate rebuke to organized labor, voters in four states are approving measures to reaffirm the sanctity of the secret ballot. No Employee Free Choice Act for us, they say.

South Carolina, AP, “SC voters OK right to secret ballot in union votes”

South Dakota, Constitutional Amendment K: “An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot. Precincts: 578/791
Yes 78.46%
No 21.52%

In Utah, Constitutional Amendment A is leading in early balloting, 58-42 percent.

And in Arizona, Proposition 113 is winning 61-39 percent.

We reported on similar efforts here in early 2009, noting that federal preemption principles likely pose significant legal challenge to the enforcement of state provisions such as these.  Based on these election results, we may soon find out if that assessment is correct or not.

More information and commentary:

• "Ballot measures guaranteeing secret ballot in union elections pass in four states" -- Greenberg Traurig's LE Blog
• "State Secret Ballot Measures" -- Workplace Prof Blog
• "Corporate-Backed Anti-Union 'Secret Ballot' Measures Pass in Four States" -- AFL-CIO NOW Blog

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In today's New York Times, labor beat writer Steven Greenhouse has a piece entitled "Unions Fear a Rollback of Rights Under Republicans."  The article cites concerns by the leaders of AFSCME and the AFL-CIO that Republican Congressional majorities would pursue legislation contrary to union interests.

One such item mentioned is the Secret Ballot Protection Act -- a bill designed precisely opposite the card check provisions of the Employee Free Choice Act.  Both these bills have previously been proposed repeatedly.  EFCA was introduced as H.R. 1409 and S. 560 in the 111th Congress, and before that as H.R. 800 (which passed the House) and S. 1041 in the 110th.  The Secret Ballot Protection Act was originally proposed in the 110th Congress as H.R. 866 by the late Rep. Charlie Norwood (R-GA), but was proposed more recently in the 111th as H.R. 1176, S. 478.  The bill's most recent introducing sponsor was Rep. John Kline (R-MN) -- the ranking member of the House Committee on Education and Labor.  A takeover of the House by the G.O.P. may well result in Rep. Kline's chairmanship on that committee with oversight of labor legislation.

Professor Jeffrey Hirsch thinks this

discussion of the expected legislative bills--including a prohibition against voluntary recognition and a requirement that all employees opt-in to political spending--to be a bit silly, as even if the Republican control both houses, such bills are a dead letter in the near-term (a little thing called "presidential veto" still exists).

I agree with his assessment that the more important -- if not, most important -- portion of the article is the speculation by former NLRB General Counsel Ronald Meisberg

that if a Republican-controlled House cripples labor-backed legislative efforts to make it easier for workers to unionize, the Democratic-controlled labor board might take administrative steps. Mr. Meisburg, a lawyer at Proskauer Rose, noted that one Democratic labor-board member recently proposed making a change in the timing of workplace elections after employees file a petition to hold a unionization vote, reducing the delay to just five or 10 days. Unions want an accelerated schedule because they say employers have too much time to ply workers with antiunion propaganda, but employers complain that such quick elections would deny employers an adequate opportunity to campaign against unionizing.

The recent activity of the National Labor Relations Board and the President's early reliance on Executive Orders on labor matters provide ample grounds to suspect greater action via administrative means if the elections produce a split government.

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